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MahmoudAly

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LexAbSumm

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[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant, who is of Kurdish origin, was born in 1969 in north ‑ west Syria and lives in Nicosia.", "A. The applicant ’ s asylum claim and all relevant proceedings", "10. The applicant left Syria on 21 May 2005 and, after travelling to Turkey and then to the “Turkish Republic of Northern Cyprus” (“TRNC”), he entered Cyprus unlawfully.", "11. He applied for asylum on 12 September 2005 and an interview was held on 21 June 2006 with the Asylum Service.", "12. His application was dismissed by the Asylum Service on 21 July 2006 on the ground that the applicant did not fulfil the requirements of the Refugee Law of 2000-2005 [1], namely, he had not shown a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service noted that there had been discrepancies in his account of the facts which undermined his credibility. In particular, there had been significant contradictions regarding his origins. It was also observed that the applicant had not been able to reply satisfactorily and with precision to certain questions or to give the information required in a persuasive manner. In conclusion, the Asylum Service found that the asylum application had not been substantiated.", "13. On 1 August 2006 the applicant lodged an appeal with the Reviewing Authority for Refugees (hereafter “the Reviewing Authority”) against the Asylum Service ’ s decision. The appeal was dismissed on 1 February 2008.", "14. The Reviewing Authority upheld the decision of the Asylum Service. In its decision it observed that the applicant ’ s claims had not been credible and had been vague and unsubstantiated. The Reviewing Authority noted, inter alia, that although the applicant had stated in his interview with the Asylum Service that he had been arrested and detained for three days by the Syrian military security forces, that had been in 1992, thirteen years before he decided to leave the country. With the exception of this incident, he had confirmed that he had never been harassed by the Syrian authorities and had never been persecuted. Moreover, although the applicant claimed that he had stated in his interview with the Asylum Service that he had been subjected to electric shock treatment and the “wheel treatment” whilst in detention in Syria, it transpired from the minutes of that interview that he had in fact stated that the electric cables had not functioned and had not mentioned that the wheel had been used to torture him. The Asylum Service had therefore not considered it necessary to refer him for a medical examination. The Reviewing Authority also observed that the applicant had merely claimed that he had left Syria on account of the increased pressure on the Kurdish population in that country following the events in Qamishli in 2004 and his fear of being arrested in the future, and because of his political activities as a member of the Yekiti Party. His allegations, however, had been general and vague. Further, his written asylum application had been based on other grounds. In particular, in his application the applicant had stated that he had come to Cyprus in search of work and better living conditions.", "15. Lastly, the Reviewing Authority pointed out that the applicant had been able to obtain a passport lawfully and to leave Syria. As regards the applicant ’ s claims concerning his involvement with the Yekiti Party in Syria, it pointed out that the applicant ’ s replies to questions put to him about the party were too general and vague.", "16. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution and that if he returned to Syria his life would be in danger or he would be imprisoned.", "17. On 1 September 2008, following a request by the Cyprus-Kurdish Friendship Association to the Minister of the Interior on 22 July 2008, the applicant ’ s file was reopened by the Asylum Service in order to examine new information put forward by the applicant, mainly concerning his activities as the head of the Yekiti Party in Cyprus. The applicant was again interviewed by the Asylum Service on 16 February 2009.", "18. According to the Government, on 8 June 2010 an officer of the Asylum Service expressed the opinion that the information submitted by the applicant could not be considered as new evidence forming the basis of a new claim. The Government submitted an internal note to this effect.", "19. The applicant was arrested on 11 June 2010 and deportation and detention orders were issued against him on the same day (see paragraph 41 below).", "20. On 7 July 2010 the Asylum Service sent the applicant ’ s file to the Reviewing Authority following an opinion given by the Attorney-General that the relevant body which should examine the new evidence put forward by the applicant was the Reviewing Authority and not the Asylum Service.", "21. On 20 August 2010 the Minister of the Interior cancelled the deportation and detention orders of 11 June 201 0 and issued new ones against the applicant on other grounds (see paragraph 4 8 below).", "22. On 30 September 2010 the Reviewing Authority informed the applicant that the information submitted before it could not alter in any manner its initial decision not to recognise him as a refugee within the meaning of Articles 3 and 19 of the Refugee Law of 2000-2009 [2]. The applicant was served with the relevant letter on 6 October 2010. On the copy of the letter provided by the Government it is stated that the applicant was served with the letter on 6 October 2010 but refused to sign for it, requesting instead to see his lawyer.", "23. On 8 October 2010 the applicant brought a “ recourse ” (judicial review proceedings) before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Reviewing Authority of 30 September 2010.", "24. Following advice from the Attorney-General, the Reviewing Authority decided to re-open the applicant ’ s file in order to consider the content of his second interview at the Asylum Service on 16 February 2009 (see paragraph 17 above).", "25. The applicant was informed by letter dated 8 April 2011 that the Reviewing Authority had decided to withdraw its previous decision (see paragraph 22 above) and to reopen and re-examine his claim taking into consideration the content of his second interview with the Asylum Service.", "26. The applicant was called on by the Reviewing Authority to give another interview as an examination of the minutes of the applicant ’ s interview at the Asylum Service showed that it had been inadequate. The applicant was interviewed by the Reviewing Authority on 26 April 2011.", "27. On 29 April 2011 the Reviewing Authority decided to recognise the applicant as a refugee pursuant to the Refugee Law of 2000-2009 and the 1951 Geneva Convention relating to the Status of Refugees ( hereafter “the 1951 Geneva Convention”). The relevant excerpt of the decision reads as follows:", "“During the interview the applicant was asked about his activities in Cyprus and in particular about his membership of the Cypriot-Kurdish Friendship Association as well as his activities in the Yekiti opposition Party in Cyprus. From his interview it was ascertained that the applicant is credible in so far as his feelings for the rights of the Kurds in Syria are concerned. Consequently, the applicant started to get involved in political matters and to publicly express his opinion about the bad state of affairs in Syria. In particular, the applicant has an active role in the Yekiti Party in Cyprus as he is its founder and organises and coordinates his compatriots in anti-regime demonstrations and demonstrations for the rights of Kurds.", "Among the documents the applicant provided the Asylum Service with, there were photographs which show him organising, coordinating and leading the demonstrations that took place in the Republic of Cyprus. Consequently, his name has been connected with anti-regime demonstrations and with a negative stance towards the existing government of Syria. In addition, as an activist, the applicant is considered to be someone who causes problems for the Syrian authorities.", "Following his interview on 26 April 2011, the applicant provided the Reviewing Authority with additional documents. These are:", "1) Documents from the Kurdish Organisation for Human Rights in Austria which refer to the activity of the applicant in Cyprus and to photographs of him which were published in Cypriot newspapers and which have come to the attention of the Syrian authorities.", "2) The organigram of the Yekiti Party in Cyprus, which shows that the applicant is the head of the party.", "Lastly, following an inquiry, it was ascertained that the applicant had spoken about the problems faced by Kurds in the Republic and in Syria to local newspapers with pan -Cyprian circulation. More specifically, speaking as the representative of the Kurdish Yekiti Party in Cyprus the applicant had stated that Kurds did not have rights in Syria, as one of these rights was to speak one ’ s own language, something which is prohibited [for Kurds] in Syria. In addition, the applicant expressed fears that upon his return he would be arrested as [the authorities] knew him.", "The applicant has proved in a convincing manner that his fear of persecution and danger to his life in the event of his return to Syria is objectively credible. He is already stigmatised by the authorities of his country and according to the COI (country of origin information) a well-founded fear of persecution by the authorities in his country because of his political opposition activity has been substantiated. Upon examination it was ascertained that none of the exclusion clauses apply to the applicant ’ s case and, as a result, he should be granted refugee status as provided for in Article 3 of the Refugee Law.", "In view of all the above, it is evident that the real circumstances of the present application, [fulfil] the necessary conditions for the granting of refugee status provided for in section 3 of the Refugee Law 2000-2009 and the 1951 Geneva Convention.", "The applicant has succeeded in showing a well-founded fear of persecution on the basis of political opinions and should therefore be granted refugee status.", "On the basis of the above, it is decided that [the applicant] be granted refugee status.”", "28. Following the above decision, on 6 June 2011 the applicant withdrew his recourse with the Supreme Court (see paragraph 23 above).", "B. The applicant ’ s arrest and detention with a view to deportation", "29. On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia, near the Representation of the European Commission, the Ministry of Labour and Social Insurance and the Government Printing Office. They were protesting against the restrictive policies of the Cypriot Asylum Service in granting international protection. About 150 Kurds from Syria, including the applicant, remained in the area around the clock, having set up about eighty tents on the pavement. According to the Government, the encampment conditions were unsanitary and protesters were obstructing road and pedestrian traffic. The encampment had become a hazard to public health and created a public nuisance. The protesters performed their daily chores on the pavement, including cooking and washing in unsanitary conditions. The sewage pits had overflown, causing a nuisance and offensive odours. The public lavatories were dirty and the rubbish bins of the Government buildings were being used and, as a result, were continuously overflowing. Furthermore, the protesters were unlawfully obtaining electricity from the Printing Office. Members of the public who lived or worked in the area had complained to the authorities. The Government submitted that efforts had been made by the authorities to persuade the protesters to leave, but to no avail. As a result, the authorities had decided to take action to remove the protesters from the area.", "30. On 28 May 2010 instructions were given by the Minister of the Interior to proceed with the deportation of Syrian-Kurdish failed asylum seekers in the normal way.", "31. On 31 May 2010 the Minister requested the Chief of Police, among others, to take action in order to implement his instructions. Further, he endorsed suggestions made by the competent authorities that deportation and detention orders be issued against Syrian- Kurdish failed asylum seekers who had passports and did not have Ajanib or Maktoumeen status and that the police execute the orders starting with the ones issued against the leaders of the protesters. The police were also directed to take into account the policy guidelines and to use discreet methods of arrest.", "32. According to the Government, letters were sent by the Civil Registry and Migration Department to a number of failed Syrian- Kurdish asylum - seekers informing them that they had to make arrangements to leave Cyprus in view of their asylum applications being turned down. The Government submitted copies of thirty such letters. In thirteen cases the letters were dated 1 June 2010 (in some the asylum decisions having been taken as far back as 2007) and in one case 9 June 2010 (the asylum decision procedure having been completed at the end of 2009). Two other letters were dated 16 June 2010 (the asylum procedures having been completed in early 2008) and 28 June 2010 (the asylum procedures having been completed in March 2010). Further, one letter was dated 5 February 2011 in a case where the asylum procedure had been completed on 22 April 2010 and the person in question had voluntarily agreed and did return to Syria on 24 September 2010.", "33. From documents submitted by the Government it appears that from 31 May until 7 June 2010 the authorities kept the area under surveillance and kept a record of the protesters ’ daily activities and of all comings and goings. In the relevant records it is noted that invariably, between 1.30 a.m. and 5. 30 a.m., things were, in general, quiet, and everyone was sleeping apart from those keeping guard. During the above-mentioned period a large-scale operation was organised by the Police Emergency Response Unit, “ERU” (“ ΜΜΑΔ ”), and a number of other authorities, including the Police Aliens and Immigration Unit, for the removal of the protesters and their transfer to the ERU headquarters for the purpose of ascertaining their status on a case-by-case basis.", "34. In the meantime, between 28 May 2010 and 2 June 2010 orders for the detention and deportation of forty-five failed asylum seekers were issued following background checks. Letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, containing a short paragraph with information as to the immigration status of each person. This information included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service, the date of dismissal of the appeal by the Reviewing Authority, where lodged, and the date some of those concerned had been included on the authorities ’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). The letters recommended the issuance of deportation and detention orders. The Government submitted copies of two such letters with information concerning thirteen people.", "35. On 2 June 2010, letters were also prepared in English by the Civil Registry and Migration Department informing those concerned of the decision to detain and deport them. The Government submitted that, at the time, the authorities did not know whether those individuals were among the protesters.", "36. The removal operation was carried out on 11 June 2010, between approximately 3 a.m. and 5 a.m. with the participation of about 250 officers from the Police Aliens and Immigration Unit, the ERU, the Nicosia District Police Division, the Traffic Division, the Fire Service and the Office for Combating Discrimination of the Cyprus Police Headquarters. The protesters, including the applicant, were led to buses, apparently without any reaction or resistance on their part. At 3.22 a.m. the mini buses carrying the male protesters left. The women, children and babies followed at 3.35 a.m. A total of 149 people were located at the place of protest and were transferred to the ERU headquarters: eighty-seven men, twenty-two women and forty children. Upon arrival, registration took place and the status of each person was examined using computers which had been specially installed the day before. The Government submitted that during this period the protesters had not been handcuffed or put in cells but had been assembled in rooms and given food and drink. It appears from the documents submitted by the Government that by 6.40 a.m. the identification of approximately half of the group had been completed and that the whole operation had ended by 4.30 p.m.", "37. It was ascertained that seventy-six of the adults, along with their thirty children, were in the Republic unlawfully. Their asylum applications had either been dismissed or their files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals dismissed. Some final decisions dated back to 2006. A number of people had also been included on the authorities ’ “ stop list ”. Deportation orders had already been issued for twenty-three of them (see paragraph 34 above).", "38. The authorities deported twenty-two people on the same day at around 6.30 p.m. (nineteen adults and three children ). Forty-four people (forty-two men and two women), including the applicant, were charged with the criminal offence of unlawful stay in the Republic under section 19(2) of the Aliens and Immigration Law (see paragraph 6 5 below). They were arrested and transferred to various detention centres in Cyprus. The applicant was placed in the immigration detention facilities in the Nicosia Central Prisons ( Block 10). All those who were found to be legally resident in the Republic returned to their homes. Further, on humanitarian grounds, thirteen women whose husbands were detained pending deportation and who had a total of twenty-seven children between them were not arrested themselves.", "39. According to the Government the applicant and his co-detainees were informed orally that they had been arrested and detained on the basis that they had been staying in the Republic unlawfully and were thus “ prohibited immigrants” (see § 62 below). They were also informed of their rights pursuant to the Rights of Persons Arrested and Detained Law 2005 (Law no. 163(I)/of 2005) (see paragraph 9 3 below) and, in particular, of their right to contact by phone, in person and in private, a lawyer of their own choice. The applicant submitted that he had not been informed of the reasons for his arrest and detention on that date.", "40. On the same day letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, recommending the issuance of deportation and detention orders. The letters contained a short paragraph in respect of each person with information as to his or her immigration status. This included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service and the date of dismissal of the appeal by the Reviewing Authority where lodged. Some letters also referred to the date the asylum application had been lodged and the date some of the individuals concerned had been included on the authorities ’ “ stop list ”. The Government submitted copies of letters concerning thirty-seven people [3].", "41. Deportation and detention orders were also issued in Greek on the same day in respect of the remaining fifty-three people detained (see paragraph 37 above), including the applicant, pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “ prohibited immigrants ” within the meaning of section 6(1)( k ) of that Law. These were couched in identical terms. In respect of two people the orders also mentioned sections 6(1)(i) and 6 (1)(l) of the Law.", "42. Subsequently, on the same date, letters were prepared in English by the Civil Registry and Migration Department informing all the detainees individually, including the applicant, of the decision to detain and deport them. The Government submitted thirty-seven copies of these letters. The text of the letter addressed to the applicant reads as follows:", "“You are hereby informed that you are an illegal immigrant by virtue of paragraph (k). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because you of illegal entry [ sic ]", "Consequently your temporary residence permit/migration permit has been revoked and I have proceeded with the issue of deportation orders and detention orders dated 11th June 2010 against you.", "You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.”", "43. The text of the remaining copies of the letters submitted by the Government was virtually identical, a standard template having been used. The only differences were that some letters referred to illegal stay rather than illegal entry and that the letters issued earlier referred to 2 June 2010 as the date of issuance of the deportation and detention orders (see paragraph 34 above).", "44. On the copy of the letter to the applicant provided by the Government, there is a handwritten signed note by a police officer stating that the letter was served on the applicant on 18 June 2010 but that he refused to receive and sign for it. The other letters had a similar note or stamp on them with the same date, stating that the person concerned had refused to sign for and/or receive the letter. In a letter dated 7 September 2010 the Government stated that the applicant had been served on 18 June 2010. In their subsequent observations the Government submitted, however, that this was the second attempt to serve the letters, the first attempt having been made on 11 June 2010, that is, the day of the arrest.", "45. The applicant submitted that he had never refused to receive any kind of information in writing. He claimed that it had only been on 14 June 2010 that he had been informed orally that he would be deported to Syria on the same day but that the deportation and detention orders were not served on him on that date or subsequently. He submitted that he had eventually been informed by his lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court, that deportation and detention orders had been issued against him on 11 June 2010.", "46. From the documents submitted by the Government, it appears that at least another fourteen of the detainees were to be deported on 14 June 2010 [4].", "47. In a letter dated 12 October 2010 the Government informed the Court that on 17 August 2010 the Minister of the Interior had declared the applicant an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law on the basis of information that he had been involved in activities relating to receiving money from prospective Kurdish immigrants in exchange for “securing” residence and work permits in Cyprus.", "48. On 20 August 2010 the Minister of Interior issued deportation and detention orders based on the above-mentioned provision. The previous orders of 11 June 2010 were cancelled. The applicant submitted that he had not been notified of the new orders. The Government did not comment on the matter and did not submit a copy of a letter notifying the applicant of these orders.", "49. The applicant was released from detention on 3 May 2011 following the decision to grant him refugee status (see paragraph 27 above).", "C. Habeas corpus proceedings", "50. On 24 January 2011 the applicant filed a habeas corpus application claiming that his continued detention from 11 June 2010 had violated Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Members states for returning illegally staying third- country nationals. The applicant, relying on the Court ’ s judgment in Chahal v. the United Kingdom, 15 November 1996, ( Reports of Judgments and Decisions 1996 ‑ V ) and the Commission ’ s report in Samie Ali v. Switzerland (no. 24881/94, Commission ’ s report of 26 February 1997) also claimed that his detention had breached Article 11 ( 2 ) of the Constitution and Article 5 § 1 of the Convention.", "51. On 23 February 2011 the Supreme Court dismissed the application. With regard to the preliminary issues raised, the Supreme Court first of all held that it had the competence to examine the application as it was called upon to examine the lawfulness of the applicant ’ s protracted detention and not the lawfulness of the deportation and detention orders. The court could, within the context of a habeas corpus application, examine the conformity of the applicant ’ s detention with Article 15 (3) of the Directive and Article 11 (2) (f) of the Constitution. The applicant was not estopped from bringing a habeas corpus application due to the fact that he had not challenged the deportation and detention orders issued against him. Even if the lawfulness of the detention was assumed, detention for the purpose of deportation could not be indefinite and the detainee left without the right to seek his release. The Supreme Court also rejected the argument that the applicant was estopped from bringing the application because his continued detention had been brought about by his own actions, that is, by his application to the Strasbourg Court for an interim measure suspending his deportation.", "52. The Supreme Court then examined the substance of the application. It noted that the Directive had direct effect in the domestic law, as the period for transposition had expired and the Directive had not been transposed. It could therefore be relied on in the proceedings. However, it went on to hold that the six- month period provided for in the Directive had not yet started to run. The applicant had been arrested on 11 June 2010 with a view to his deportation but had not been deported by the Government in view of the application by the Court on 12 June 2010 of Rule 39 and the issuing of an interim measure suspending his deportation. Consequently, the authorities had not been able to deport him. As the applicant himself had taken steps to suspend his deportation, the ensuing time could not be held against the Government and could not be taken into account for the purposes of Article 15 (5) and (6) of the Directive. The six-month period would start to run from the moment that the interim measure had been lifted. From that moment onwards the Government had been under an obligation in accordance with Article 15 (1) of the Directive to proceed with the applicant ’ s deportation with due diligence. The situation would have been different if the deportation had not been effected owing to delays attributable to the authorities.", "53. In so far as the applicant ’ s complaints under Article 11 (2) of the Constitution and Article 5 § 1 of the Convention were concerned, the Supreme Court distinguished the applicant ’ s situation from those in the cases he relied on and in which responsibility for the protracted detention lay with the authorities. Further, it held that it had not been shown that the continued detention of the applicant had been arbitrary, abusive and contrary to the Court ’ s case- law (see paragraph 50 above).", "54. The applicant lodged an appeal with the Supreme Court (appellate jurisdiction) on 17 March 2011.", "55. The appeal was dismissed on 15 October 2012. The Supreme Court held that as the applicant had, in the meantime, been released, the application was without object.", "D. Background information concerning the applicant ’ s request under Rule 39 of the Rules of Court", "56. On Saturday, 12 June 2010, the applicant, along with forty-three other persons of Kurdish origin, submitted a Rule 39 request [5] in order to prevent their imminent deportation to Syria.", "57. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had had the opportunity to receive and examine all the documents pertaining to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation.", "58. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to maintain the interim measure in respect of five applications, including the present one. Rule 39 was lifted with regard to the thirty-nine remaining cases. In seven of these cases the deportation and detention orders were annulled by the authorities. It appears that in at least three out of the seven cases proceedings were still pending with the Asylum Service or the Reviewing Authority. Those applicants subsequently withdrew the applications they had lodged with the Court.", "59. By a letter dated 11 May 2011, the applicant ’ s representative informed the Court that the applicant, by a decision dated 26 April 201 1, had been recognised as a refugee under the 1951 Geneva Convention and had been released on 3 May 2011.", "60. On the basis of the above information, on 23 May 2011 the President of the First Section decided to lift the measure indicated under Rule 39.", "III. INTERNATIONAL TEXTS AND DOCUMENTS", "A. Relevant Council of Europe documents", "1. Guidelines of the Committee of Ministers of the Council of Europe", "94. Guideline X of the Guidelines on human rights protection in the context of accelerated asylum procedures adopted by the Committee of Ministers on 1 July 2009 at the 1062nd meeting of the Ministers ’ Deputies provides for the right to effective and suspensive remedies. It reads as follows:", "“ 1. Asylum seekers whose applications are rejected shall have the right to have the decision reviewed by a means constituting an effective remedy.", "2. Where asylum seekers submit an arguable claim that the execution of a removal decision could lead to a real risk of persecution or the death penalty, torture or inhuman or degrading treatment or punishment, the remedy against the removal decision shall have suspensive effect.”", "2. The Commissioner for Human Rights", "95. The Commissioner for Human Rights issued a recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19). This recommendation of 19 September 2001 included the following paragraph:", "“11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.”", "3. ECRI reports on Cyprus", "96. The European Commission against Racism and Intolerance (ECRI) published its third report on Cyprus on 16 December 2005. The relevant parts read as follows:", "“ 56. ECRI is also concerned that deportations of asylum seekers have sometimes been carried out in a way that jeopardises respect of the principle of non - refoulement. It has been reported to ECRI that deportations are effectively carried out before the individual has been given a chance to even formally apply for asylum. However, deportations have also been carried out after an asylum application has been filed and before the completion of its examination. This has reportedly included cases where the files were arbitrarily closed or the asylum seeker was forced to withdraw the application, but also cases where the asylum claim was still pending in the first or second instance. Furthermore, since filing an appeal for judicial review before the Supreme Court does not have a suspensive effect on the deportation order, deportations of asylum seekers who file such an appeal are reportedly carried out as a rule before its examination is completed.", "...", "61. ECRI urges the Cypriot authorities to ensure that the asylum seekers ’ right to protection from refoulement is thoroughly respected. In this respect, it recommends that the Cypriot authorities ensure that deportations are not carried out before asylum procedures at all instances are completed .”", "97. In its subsequent periodic report (fourth monitoring cycle) on Cyprus, published on 31 May 2011, ECRI stated as follows:", "“ Asylum seekers and refugees", "172. In its third report, ECRI made a large number of recommendations related to asylum seekers, namely that the authorities (i) ensure that adequate human and financial resources are available to deal effectively and within a reasonable time with all asylum applications; (ii) ensure that asylum seekers only be detained when it is absolutely necessary and that measures alternative to detention be used in all other cases; (iii) take urgent measures to ensure that the right of persons to apply for asylum is thoroughly respected; (iv) ensure that clear information on the rights of asylum seekers and the procedures to apply for asylum is available in a language that asylum seekers understand at police stations and at all places where they may apply for asylum; (v) increase training of the police in human rights, including asylum and non ‑ discrimination issues; (vi) ensure that any alleged instance of ill treatment of asylum seekers by police officers is thoroughly and rapidly investigated and that the persons found responsible are duly punished; (vii) take measures to improve asylum seekers ’ access to free or inexpensive legal aid and representation; (viii) take urgent measures to ensure that asylum seekers can access in practice all rights to which they are entitled by law, including in such areas as healthcare provision, welfare services, education and employment; (ix) ensure that asylum seekers are not discriminated against in exercising the right to employment granted to them by law, underlining that any measures taken by the Cypriot authorities with respect to asylum seekers ’ access to employment and welfare benefits should not push these persons towards illegality; (x) ensure that the asylum seekers ’ right to protection from refoulement is thoroughly respected and that deportations are not carried out before asylum procedures at all instances are completed; (xi) refrain from adopting deterrent policies in the field of asylum and from presenting any asylum policies to the public as deterrent policies.", "173. ECRI notes that relatively little has changed in respect of the numerous concerns raised in its third report. Some of the above issues have already been addressed in other parts of this report. Below are some additional observations relating to asylum seekers.", "...", "183. As for legal aid, this is not available in administrative proceedings. ECRI notes that the first two instances in the asylum procedure, before the Asylum Service and the Refugee Reviewing Authority, are both administrative proceedings. The authorities have stated that according to the Refugee Law, an applicant has the right to have a lawyer or legal advisor at his/her own cost during all stages of the asylum procedure and that asylum seekers have access to free legal aid through the programmes funded by the European Refugee Fund and the Republic of Cyprus. In reality, however, few asylum seekers have the financial resources to engage private lawyers and there are only two NGOs functioning in the country with an interest in assisting asylum seekers.", "...", "185. A person whose asylum application is rejected at second instance may appeal to the Supreme Court for judicial review. The recent Law 132(I)/2009 amended the Legal Aid Law of 2002, in accordance with the EU Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, to extend eligibility for free legal aid, including advice, help and representation, to asylum seekers and refugees in appeals before the Supreme Court. ECRI notes that applications for legal aid are subject to a means and merits test: asylum seekers must demonstrate that they lack sufficient financial resources and that the appeal is likely to succeed.", "186. International and civil society organisations have reported major difficulties in the application of the new legislation. Firstly, no information has been provided to asylum seekers of the new legal aid possibility. Secondly, since most asylum seekers do not have sufficient command of the Greek language, it is almost impossible for them to formulate a successful legal aid application, particularly as regards the merits test. Thirdly, it is reported that as soon as a negative second instance decision is taken, a deportation order is faxed to the police and rejected asylum seekers are frequently arrested before they even receive the letter informing them of the negative decision of the Refugee Reviewing Authority or have a chance to appeal to the Supreme Court. Filing an appeal in any case does not have a suspensive effect on the deportation order. This raises questions concerning respect of the principle of non-refoulement. The authorities, however, have assured ECRI that the Asylum Service takes all necessary measures to ensure that the principle of non-refoulement is fully respected and that no deportation takes place before the examination of an asylum case is completed. Lastly, if legal aid is granted there is no list of lawyers specialising in asylum for asylum seekers to choose from.", "187. ECRI understands that only two asylum seekers have been granted legal aid since the adoption of the amendment in December 2009 and around 100 have represented themselves before the Supreme Court without legal aid. Moreover, very few decisions have been made by the Supreme Court to send a case back to the Refugee Reviewing Authority.", "188. ECRI recommends that the authorities ensure that asylum seekers have access to appropriate legal aid throughout the asylum application procedure and not just at the appeal stage.", "189. ECRI recommends that the authorities ensure that asylum seekers are fully aware of the availability of legal aid to challenge negative asylum decisions before the Supreme Court.", "195. As administrative decisions, detention and deportation can be appealed at the Supreme Court. However, as observed in ECRI ’ s third report, an appeal has no suspensive effect, unless an interim injunction is granted by the Supreme Court. ”", "B. Relevant European Union Law", "98. Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals stipulates that:", "“ 1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:", "(a) there is a risk of absconding or", "(b) the third-country national concerned avoids or hampers the preparation of return or the removal process.", "Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence", "2. Detention shall be ordered by administrative or judicial authorities.", "Detention shall be ordered in writing with reasons being given in fact and in law.", "When detention has been ordered by administrative authorities, Member States shall:", "(a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;", "(b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.”", "The third-country national concerned shall be released immediately if the detention is not lawful.", "3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.", "4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.", "5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.", "6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:", "(a) a lack of cooperation by the third-country national concerned, or", "(b) delays in obtaining the necessary documentation from third countries. ”", "99. Article 18 (2) of Council Directive 200 5 / 85 /EC of 1 December 200 5 on minimum standards on procedures in Member States for granting and withdrawing refugee status provides that where an applicant for asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review.", "C. Amnesty International reports", "1. Report concerning the detention of migrants and asylum-seekers in Cyprus", "100. In June 2012 Amnesty International published a report on the detention of migrants and asylum-seekers in Cyprus entitled “Punishment without a crime”.", "101. In the report Amnesty International, noted, inter alia, that it had been made aware of asylum-seekers whose claims had been rejected at the initial stage and at appeal level, and who had subsequently been apprehended and kept in detention pending deportation even though they were awaiting a decision by the Supreme Court on their challenges against the rejection of their asylum applications. This was because although an application to the Supreme Court did not automatically suspend the deportation process, an application to suspend the deportation, including as an interim measure, had to be lodged with the Supreme Court. The suspension was not granted automatically; an applicant had to establish flagrant illegality or irreparable damage. This therefore meant that in Cyprus asylum-seekers might be at risk of forcible return to a place where they were at serious risk of human rights violations (breaching the principle of non-refoulement ) before their claim was finally determined unless the Supreme Court agreed to suspend the deportation order or, in cases where the asylum -seekers had petitioned the Court, an interim measure had been granted.", "102. As regards the safeguards against unlawful detention, Amnesty International pointed out that it had documented several cases attesting to a failure by the police authorities to explain to immigration detainees the reasons for their detention, its possible length and the rights they had whilst in detention. Detainees and their lawyers had told Amnesty International that often they were not provided with the reasons and justification for detention. Usually, detainees were given a short letter simply referring to the legislative provisions under which their detention had been ordered and to the fact that they were being detained pending deportation. In some cases, deportation and detention orders had been handed to the individuals concerned several months into their detention. The report noted that such shortcomings were particularly common in relation to detained asylum-seekers. A large number interviewed by Amnesty International, particularly those whose applications were pending, did not appear to know how long they would be detained, even when they were aware of the grounds for their detention.", "103. Furthermore, referring to the remedies available in Cyprus against detention, the report observed that according to lawyers, the average length of a recourse under Article 146 of the Constitution was one and a half years, whereas in a habeas corpus application it was one or two months. In the case of an appeal against an unsuccessful application, the length of the appeal proceedings in both cases was about five years on average. In addition, according to domestic legislation, the Minister of Interior reviewed immigration detention orders either on his or her own initiative every two months, or at a reasonable time following an application by the detainee. The Minister was also solely responsible for any decision to prolong detention for an additional maximum period of twelve months. However, the lack of automatic judicial review of the decision to detain was a cause of major concern. Referring to Article 5 § 4 of the Convention, Article 18 (2) of the Asylum Procedures Directive and Article 15 (2) of the EU Returns Directive the report concluded that because of the lack of an automatic judicial review of the administrative orders to detain, especially in cases of prolonged detention, it was clear that the procedural safeguards in Cypriot law fell short of international and regional standards.", "104. The report concluded that the routine detention of irregular migrants and of a large number of asylum-seekers was in clear violation of Cyprus ’ human rights obligations. It considered that this pattern of abuse was partly due to inadequate legislation, but more often it was down to the practice of the authorities. Lastly, the report set out a number of recommendations to the Cypriot authorities. These include, in so far as relevant:", "- Ending the detention of asylum-seekers for immigration purposes in law and in practice, in line with international human rights standards which require that such detention is only used in exceptional circumstances;", "- Ensuring that the recourse to the Supreme Court regarding a decision rejecting an asylum application at the initial stage or at appeal level automatically suspends the implementation of a deportation order;", "- Ensuring that the decision to detain is automatically reviewed by a judicial body periodically on the basis of clear legislative criteria;", "- Ensuring that migrants and asylum-seekers deprived of their liberty are promptly informed in a language they understand, in writing, of the reasons for their detention, of the available appeal mechanisms and of the regulations of the detention facility. The decision to detain must entail reasoned grounds with reference to law and fact;", "- Ensuring that detention was always for the shortest possible time;", "- Ensuring that the maximum duration for detention provided in law is reasonable;", "- Ensuring that migrants and asylum-seekers were granted effective access to remedies against administrative deportation and detention orders, including through the assistance of free legal aid to challenge detention and/or deportation and adequate interpretation where necessary;", "- Ensuring that deportation procedures contain adequate procedural safeguards, including the ability to challenge individually the decision to deport, access to competent interpretation services and legal counsel, and access to appeal before a judge.", "2. Annual report of 2011", "105. The chapter on Cyprus in the Amnesty International 2011 annual report refers, inter alia, to the events of June 2010. In so far as relevant, it states as follows:", "“ In late May, around 250 Syrian Kurd protesters camped outside the “EU House” in Nicosia to protest against the authorities ’ rejection of their asylum claims and to protest about residence rights. On 11 June, 143 of the protesters, including children, were reportedly arrested during an early morning police operation. Several of them were released immediately but, according to reports, 23 were forcibly removed to Syria that day. On 14 June, the European Court of Human Rights issued interim measures requesting that Cyprus suspend the removal of the 44 who were still in detention. Seven of these were then released, either because they had pending asylum applications or were stateless. According to reports, of those remaining, 32 were forcibly removed to Syria after the European Court lifted the interim measures in their cases in September. The remaining five continued to be detained in Cyprus. Seventeen of those forcibly removed were reportedly arrested and detained upon or after their arrival in Syria.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Entry, residence and deportation of aliens", "1. The Aliens and Immigration Law and the Refugee Law", "61. The entry, residence and deportation of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended).", "62. Under section 6(1) of the Law a person is not permitted to enter the Republic if he is a “prohibited immigrant”. This category includes any person who enters or resides in the country contrary to any prohibition, condition, restriction or limitation contained in the Law or in any permit granted or issued under the Law (section 6(1)(k )), any person who was deported from the Republic either on the basis of the Law or on the basis of any other legislation in force at the time of his or her deportation (section 6(1)(i)) and any alien who wishes to enter the Republic as an immigrant, but does not have in his or her possession an immigration permit granted in accordance with the relevant regulations (section 6(1)( l )). Furthermore, a person can be considered to be a “prohibited immigrant” on, inter alia, grounds of public order, legal order or public morals or if he or she constitutes a threat to peace (section 6(1)(g )).", "63. Under the Law the deportation and, in the meantime, the detention of any alien who is considered “ a prohibited immigrant” can be ordered by the Chief Immigration Officer, who is the Minister of the Interior (section 14). Section 14(6) provides that a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for this decision, unless this is not desirable on public - security grounds, and has the right to be represented before the competent authorities and to request the services of an interpreter. In addition, Regulation 19 of the Aliens and Immigration Regulations of 1972 (as amended ) provides that when the Immigration Officer decides that a person is a prohibited immigrant, written notice to that effect must be served on that person in accordance with the second schedule of the Regulations.", "64. In the case of Uros Stojicic v. the Republic of Cyprus, through the Immigration Officer (judgment of 27 June 2003, case no. 1018/2002) the Supreme Court pointed out that, due to its seriousness, a deportation order was subject to restrictions and conditions of a substantive and formal nature, which aimed to safeguard the fundamental rights of persons against whom a deportation procedure was being carried out to information and a hearing. These safeguards are provided for in the domestic law, in particular, section 14(6) of the Aliens and Immigration Law and Regulation 19 of the Aliens and Immigration Regulations, as well as in Article 1 of Protocol No. 7 to the Convention. The Supreme Court observed that Cypriot jurisprudence recognised the wide discretion of the Immigration Officer as an integral part of state sovereignty but at the same time imposed safety measures in order to prevent arbitrary acts by state organs and abuses which could lead to the infringement of fundamental and internationally safeguarded human rights.", "The exception provided for in section 14(6), which is grounded on reasons of public security, will apply where the authorities consider it undesirable to inform the person concerned of the reasons for the decision to detain and deport him. For example, in Kamran Sharajeel v. the Republic of Cyprus, through Minister of the Interior (judgment of 17 March 2006, case no. 725/2004, the Supreme Court accepted the application of the exception as it was obvious from the correspondence in the file that the case had been treated as urgent by the authorities and that the grounds for the deportation concerned national security. The applicant in that case had been arrested on the basis of information that he was reportedly involved with Al-Qaeda and was deported within three days of his arrest.", "65. Unauthorised entry and/or stay in Cyprus are criminal offences. Until November 2011, they were punishable by imprisonment or a fine (section 19(2)) of the Aliens and Immigration Law). Law 153(I)/2011, which entered into force in November 2011, removed the punishment of imprisonment but retained the criminal nature of the contraventions and their punishment with a fine (section 18). Such punishment is not applicable to asylum seekers. Furthermore, a person who has entered the Republic illegally will not be subject to punishment solely on the basis of his illegal entry or residence, provided that he appears without unjustified delay before the authorities and gives the reasons for his illegal entry or residence (Section 7(1) of the Refugee Law, Law 6 (I) of 2000, as amended).", "66. Further, section 19 A (2) of the Aliens and Immigration Law provides, inter alia, that a person who intentionally and with the aim of obtaining profit assists a third country national to enter or pass through the Republic in breach of the Aliens and Immigration Law, commits a criminal offence which is punishable, following conviction, with imprisonment of up to eight years or with a fine, or both.", "2. Challenging deportation and detention orders", "67. Deportation and detention orders can be challenged before the Supreme Court by way of administrative recourse under Article 146 ( 1 ) of the Constitution of the Republic of Cyprus. This provision provides as follows:", "“The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.”", "68. A recourse must be made within seventy-five days of the date when the decision or act was published or, if it was not published and in the case of an omission, when it came to the knowledge of the person making the recourse (Article 146 ( 3 ) ). Should the recourse succeed, the power of the Supreme Court is confined to declaring an act or decision null or void, or, in the case of an omission, that it ought not to have occurred, in that what had not been done should have been done (Article 146 (4)).", "The jurisdiction of the Supreme Court under Article 146 is limited to reviewing the legality of the act, decision or omission in question on the basis of the facts and circumstances existing at the time the act, decision or omission occurred. The Supreme Court will not go into the merits of the decision and substitute the decision of the administrative authority or organ concerned with its own decision; it will not decide the matter afresh. If the Supreme Court annuls the act or decision in question, the matter is automatically remitted to the appropriate administrative authority or organ for re-examination ( see the domestic case-law citations in Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, § 73, 21 July 2011 ).", "69. Article 146 (6) provides for compensation as follows:", "“Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant”.", "70. The Supreme Court has held that the lawfulness of deportation and detention orders can only be examined in the context of a recourse brought under Article 146 of the Constitution and not in the context of a habeas corpus application ( see, for example, the Supreme Court ’ s judgment of 30 December 2004 in Elena Bondar appeal no. 12166 against the refusal of an application for a writ of habeas corpus, (2004) 1 (C) CLR 2075 ).", "71. A recourse does not have automatic suspensive effect under domestic law. In order to suspend deportation an application must be made seeking a provisional order. The Supreme Court has the power to issue provisional orders, suspending the enforcement of the decision taken by the administrative authority, pending the hearing of the case on the merits. A provisional order is an exceptional discretionary measure and is decided on a case- by -case basis (rule 13 of the Supreme Constitutional Court Rules 1962). The Supreme Court will grant a provisional order if an applicant establishes that the contested decision is tainted by flagrant illegality or that he or she will suffer irreparable damage from its enforcement (see amongst a number of authorities, Stavros Loizides v. the Ministry of Foreign Affairs (1995) 3 C.L.R. 233; Elpida Krokidou and others v. the Republic, (1990) 3 C C.L.R. 1857; and Sydney Alfred Moyo & another v. the Republic (1988) 3 CLR 1203 ).", "72. Until recently, domestic law did not provide for legal aid in respect of a recourse under Article 146 of the Constitution against deportation and detention orders. In 2012 the Legal Aid Law (Law no. 165(I)/2002) was amended, enabling illegally staying third-country nationals to apply for legal aid (section 6C, Amending Law no. 8(I)/2012). However, legal aid is limited to first - instance proceedings and will be granted only if the recourse is deemed to have a reasonable chance of success (sections 6 C (2)(aa) and (bb)).", "B. Asylum", "73. The Cypriot Government assumed responsibility for assessing asylum claims from 1 January 2002. An Asylum Service was established for this purpose in the Migration Department of the Ministry of Interior. Prior to that, the UNHCR dealt with such claims.", "74. Asylum seekers can appeal against decisions by the Asylum Service to the Reviewing Authority, which was established by the Refugee Law (Law 6 (I) of 2000, as amended). Procedures before the Asylum Service and the Reviewing Authority are suspensive: asylum seekers have a right under section 8 of the Refugee Law to remain in the Republic pending the examination of their claim and, if lodged, their appeal. Although the authorities retain the power to issue deportation and detention orders against an applicant during this period, such orders can only be issued on grounds which are unrelated to the asylum application, for example, the commission of a criminal offence, and they are subject to the suspensive effect (see the Supreme Court ’ s judgment of 30 December 2004 in the case of Asad Mohammed Rahal v the Republic of Cyprus (2004) 3 CLR 741 ).", "75. The decision of the Reviewing Authority can be challenged before the Supreme Court by way of administrative recourse under Article 146 (1) of the Constitution (see paragraphs 6 7-70 above). According to section 8 of the Refugee Law, however, following the decision of the Reviewing Authority, an applicant has no longer the right to remain in the Republic. A recourse does not have automatic suspensive effect ( see paragraph 7 1 above).", "76. Finally, section 6B of the Legal Aid Law (Law no. 165(I)/2002 as amended by Amending Law 132(I)/2009), provides that asylum - seekers may apply for legal aid in respect of a recourse brought under Article 146 of the Constitution against decisions by the Asylum Service and the Reviewing Authority. As in the case of deportation and detention (see paragraph 72 above), legal aid will only be granted in respect of the first - instance proceedings (section 6 B (2)(aa)) and if there is a prospect of success (section 6B(2)(bb)).", "C. Cases relied on by the parties regarding “suspensiveness” and “speediness” in deportation and detention cases", "1. Cases relied on by the Government", "77. Recourses nos. 382/2011 ( Kazemyan Marvi Behjat v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ), 383/2011 ( Embrahimzadeh Poustchi Omid v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ) and 384/2011 ( Bagher Embrahim Zadeh v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ) against deportation and detention orders were lodged before the Supreme Court on 21 March 2011 by a couple and their son. An ex parte application for a provisional order was filed the next day. The hearing of the application took place on 20 April 2011. On that day the complainants agreed to an early hearing of the recourse and withdrew their application as part of an agreement with the Government to have their deportation suspended and have an early hearing of the main proceedings. The cases were then listed for a directions hearing to be held on 2 May 2001. The recourses were eventually withdrawn on 10 June 2011. They lasted two months and twenty days. The complainants were detained throughout this period, until their deportation on 17 July 2011.", "78. Recourse no. 601/11 ( Olha Voroniuk v. Minister of the Interior and Director of the Civil Registry and Migration Department ) against deportation and detention orders was lodged on 11 May 2011 along with an application for a provisional order. The application was heard on 1 June 2011 when it was withdrawn after an agreement was reached with the Government. The case was then listed for a clarifications hearing to be held on 29 June 2011. The complainant, however, withdrew the recourse on 28 June 2011 in order to return to her country. The proceedings lasted one month and seventeen days. The complainant was detained throughout this period, until her deportation on 8 July 2011.", "79. In recourse no. 439/2009 ( Sima Avani and Maral Mehrabi Pari v. the Republic of Cyprus – 1. Minister of the Interior and Director of the Civil Registry and Migration Department and 2. the Reviewing Authority for Refugees ) lodged on 16 April 2009, it appears that the complainants challenged both the Reviewing Authority ’ s decision and the deportation and detention orders. They also filed an application for a provisional order. Rule 39 was applied by the Court. On 16 April 2009 the Supreme Court granted the provisional order, suspending the complainants ’ deportation. It then gave judgment dismissing the recourse on 27 August 2009, upholding the asylum decision taken by the authorities. The proceedings lasted for four months and eleven days. The complainants were detained throughout this period. They were released on 1 September 2009 and were not detained during the appeal proceedings, which were concluded on 10 October 2011 (Revisional appeal no. 150/09).", "2. Cases relied on by the applicant", "80. In recourse no. 493/2010 ( Leonie Marlyse Yombia Ngassam v. the Republic of Cyprus - the General Director of the Ministry of the Interior and the Attorney-General of the Republic ) against deportation and detention orders, an application for a provisional order was filed on 21 April 2010. The application was withdrawn following an agreement with the Government. Judgment was given on 20 August 2010. The proceedings therefore lasted three months and twenty-nine days, for the duration of which the complainant remained in detention.", "81. In recourse no. 103/2012 ( Amr Mahmoud Youssef Mohammed Gaafar v. the Republic of Cyprus - Director of the Civil Registry and Migration Department and the Minister of the Interior ) the application for a provisional order was filed on 24 January 2012. It was subsequently withdrawn and the Supreme Court gave judgment on 23 July 2012. The proceedings lasted five months and twenty-nine days. The complainant was detained during this period.", "82. In recourse no. 1724/2011 ( Mustafa Haghilo v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General ) against deportation and detention orders, the application for a provisional order was filed on 28 December 2011. The application was subsequently withdrawn and judgment was given on 13 July 2012. The proceedings lasted six months and fifteen days. At the time of the submission of the applicant ’ s observations of 31 July 2012 the appeal proceedings were still pending and the complainant was still in detention.", "83. Recourse no. 1723/2011 ( Mohammad Khosh Soruor v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General ) against deportation and detention orders was lodged on 28 December 2011 along with an application for a provisional measure. The application was not withdrawn but was dismissed by the Supreme Court on 8 February 2012. At the time of the submission of the applicant ’ s observations of 31 July 2012 the main proceedings in this recourse were still pending and had up to that date lasted six months and twenty-two days. The complainant was still in detention.", "84. In recourse no. 1117/2010 ( Shahin Haisan Fawzy Mohammed v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General) the Supreme Court gave judgment on 23 December 2010, annulling deportation and detention orders issued against the complainant. Following this judgment the authorities issued new deportation and detention orders. A recourse challenging these orders along with an application for a provisional order to suspend deportation were filed on 30 December 2010 (recourse no. 1718/10; Shahin Haisan Fawzy Mohammed v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General). According to the minutes of the proceedings the authorities were notified of the application on 31 December 2010. On 4 January 2011, at the hearing of the application, however, the authorities informed the Court that the complainant had been deported on 2 January 2011. His representative withdrew the application but maintained the recourse. At the time, the complainant ’ s recourse against the Reviewing Authority ’ s decision was still pending before the Supreme Court (recourse no. 1409/2010).", "D. Detention pending deportation", "85. At the material time, Directive 2008 /115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals, “the EU Returns Directive”, had not been transposed into Cypriot domestic law. As the deadline for transposition expired on 24 December 2010 (see Article 20 of the Directive) the Directive had direct effect in domestic law and could therefore be relied on by an individual in court (see for example the Supreme Court judgments of 18 January 2011 in the case of Shanmukan Uthajenthiran, habeas corpus application no. 152/2010 and of 20 January 2011, and the case of Irfam Ahmad, habeas corpus application 5/2011).", "86. In accordance with Article 15 §§ 5 and 6 of the Directive, detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee represents a national security or public order risk, detention may be prolonged for a further twelve months, to a maximum of eighteen months (see paragraph 98 below). The Directive has been invoked before the Supreme Court in habeas corpus proceedings in which detainees challenged the lawfulness of their protracted detention for the purpose of deportation (see, for example, Supreme Court judgments of 12 March 2012 in the case of Yuxian Wing, habeas corpus application no. 13/2012; of 8 January 2011 in the case of Shanmukan Uthajenthiran, cited above; and of 22 December 2011 in the case of Mostafa Haghilo, habeas corpus application no. 133/2011).", "87. In November 2011, Law no. 153(I)/2011 introduced amendments to the Aliens and Immigration Law with the aim of transposing the “ EU Returns Directive ”. This Law expressly provides that habeas corpus applications before the Supreme Court challenging the lawfulness of detention with a view to deportation can be made on length grounds (for the previous situation, see Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011)).", "E. Relevant Constitutional provisions", "88. Part II of the Constitution contains provisions safeguarding fundamental human rights and liberties. Article 11 protects the right to liberty and security. It reads as follows, in so far as relevant:", "Article 11", "“1. Every person has the right to liberty and security of person.", "2. No person shall be deprived of his liberty save in the following cases when and as provided by law:", "...", "(f) the arrest or detention of a person to prevent him effecting an unauthorised entry into the territory of the Republic or of an alien against whom action is being taken with a view to deportation or extradition.", "3. Save when and as provided by law in case of a flagrant offence punishable with death or imprisonment, no person shall be arrested save under the authority of a reasoned judicial warrant issued according to the formalities prescribed by the law.", "4. Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing.", "5. The person arrested shall, as soon as is practicable after his arrest, and in any event not later than twenty-four hours after the arrest, be brought before a judge, if not earlier released.", "...", "7. Every person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.", "8. Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”.", "F. Other relevant domestic law", "1. The Police Law", "89. Section 24(2) of the Police Law 2004 (Law no. 73(I)/2004) concerns the general powers and duties of members of the police. It reads as follows:", "“ It is the duty of every member of the police readily to obey and execute all the orders and warrants which are lawfully issued to him by any competent authority, to collect and transmit information which affects public peace and the security of the Cyprus Republic, to prevent the commission of offences and public nuisance, to discover and bring transgressors to justice and to arrest all persons who he is lawfully authorised to arrest, for the arrest of whom there is a satisfactory ground. ”", "90. Section 29(1)(c) and (d) of the Police Law concerns the duty of the police to keep order on public roads. Its reads as follows:", "“ (1) It is the duty of every member of the police:", "...", "(c) to maintain order on public roads, streets, crossings, in airports and places of disembarkation and in other places of public recreation or places to which the public has access and", "(d) to regulate movement and the maintenance of order in cases of obstructions on public roads and streets or in other places of public recreation or places to which the public has access. ”", "2. The Public Roads Law and the Prevention of Pollution of Public Roads and Places Law", "91. Section 3 of the Public Roads Law (Cap. 83 as amended) provides, inter alia, that it is a criminal offence punishable by imprisonment to place any rubbish or any other matter or thing whatsoever on any public road, or allow any filth, refuse, offensive matter or thing whatsoever to flow or run into or onto it, or intentionally obstruct the free passage of the road (section 3).", "92. Section 3(1) of the Prevention of Pollution of Public Roads and Places Law of 1992 (Law no. 19(I)/92 as amended) provides, inter alia, that it is a criminal offence punishable by imprisonment to put, throw, leave, or tolerate or allow the throwing or leaving of, any refuse, waste or filth on a public road or in another public place.", "3. The Law on the Rights of Persons who are Arrested and Detained", "93. The Law on the Rights of Persons who are Arrested and Detained (Law no. 163(I)/2005) introduced a number of provisions regulating the rights and treatment of arrestees held in custody. It provides, inter alia, for the right of a person who is arrested by the police to a private telephone call to a lawyer of his or her choice immediately after his or her arrest (section 3(1)(a) ).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "106. Relying on Articles 2 and 3 of the Convention, the applicant complained that if deported to Syria, he would be exposed to a real risk of death or torture or inhuman or degrading treatment. These provisions read as follows:", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "...”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties ’ submissions", "107. The Government submitted that the applicant could no longer claim to be a victim of the alleged violation of Articles 2 and 3 of the Convention as he had been granted refugee status on 29 April 2011 and would therefore not be deported. Accordingly, they invited the Court to declare the applicant ’ s complaints under these provisions inadmissible on this ground. In the alternative, the Government argued that the applicant had failed to exhaust domestic remedies. They noted in this respect that the applicant had not, in the course of his recourse before the Supreme Court, filed an application seeking a provisional order to suspend his deportation. Further, he had not brought a recourse against the deportation and detention orders issued against him.", "108. The applicant accepted that he no longer faced a risk of deportation to Syria and the question of violation of Articles 2 and 3 of the Convention taken alone was not as such in issue anymore. He submitted that his recognition as a refugee was in substance an acknowledgment by the Government that his deportation to Syria would have been in violation of these provisions. He stressed, however, that if it had not been for the application of Rule 39 of the Rules of Court by the Court he would have been deported by the authorities. In reply to the Government ’ s plea of non-exhaustion he maintained that he did not have an effective domestic remedy at his disposal as required by Article 35 § 1 of the Convention. In this respect, the applicant pointed out, inter alia, that a recourse against a decision by the Reviewing Authority or against deportation and detention orders did not have automatic suspensive effect. Neither did an application for a provisional measure to suspend deportation made in the context of such proceedings. Lastly, the applicant argued that the scope of the recourse proceedings before the Supreme Court was too limited, as it did not entail an examination of the merits of the administrative decisions concerning asylum and deportation.", "B. The Court ’ s assessment", "1. Victim status", "109. The Court reiterates that, as a general rule, a decision or measure favourable to the applicant is not sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, amongst many other authorities, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012; I .M. v. France, no. 9152/09, §§ 94-95, 2 February 2012; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 56, ECHR 2007 ‑ II ).", "110. The Court notes that in the present case the applicant, on 29 April 2011, was granted refugee status. The President of the First Section decided to discontinue the application of Rule 39 on this basis. As the applicant is no longer at risk of deportation to Syria, he can no longer claim to be a victim of a violation of his rights under Articles 2 and 3 of the Convention within the meaning of Article 34 of the Convention. It follows that this part of the application must be rejected as being incompatible ratione personae with the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "2. Exhaustion of domestic remedies", "111. In view of the above conclusion, the Court does not need to examine the question of exhaustion of domestic remedies raised by the Government.", "II. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION", "112. Relying on Article 13 of the Convention, the applicant complained of the lack of an effective domestic remedy with regard to his complaints under Articles 2 and 3. In particular, he complained that a recourse challenging the decisions of the Reviewing Authority and the deportation and detention orders did not have automatic suspensive effect and did not entail an examination of the merits of the administrative decisions. Article 13 provides as follows:", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "1. The parties ’ submissions", "113. Despite the fact that he had been granted refugee status, the applicant considered that the Court should still proceed to examine his complaint under Article 13 of the Convention taken together with Articles 2 and 3. He submitted that he had had an arguable claim under the latter provisions. The authorities ’ decision to grant him refugee status confirmed this. He argued that he could still continue to claim to be a victim of a violation of Article 13 as he never had an effective domestic remedy at his disposal for the violation of his Convention rights. The applicant emphasised that he had not been removed to Syria only because of the interim measure indicated by the Court to the Cypriot Government.", "114. The Government did not make any specific submissions on this matter.", "2. The Court ’ s assessment", "115. Although the respondent State did not raise any objection as to the Court ’ s competence ratione personae, this issue calls for consideration proprio motu by the Court.", "116. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce - and hence to allege non-compliance with - the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. However, Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131 ).", "117. The Court has refrained from giving an abstract definition of the notion of arguability, preferring in each case to determine, in the light of the particular facts and the nature of the legal issue or issues raised, whether a claim of a violation forming the basis of a complaint under Article 13 is arguable and, if so, whether the requirements of this provision were met in relation thereto. In making its assessment the Court will also give consideration to its findings on the admissibility of the substantive claim (see Ivan Atanasov v. Bulgaria, no. 12853/03, §§ 100-101, 2 December 2010, and Boyle and Rice, cited above, § 54). The fact, however, that a substantive claim is declared inadmissible does not necessarily exclude the operation of Article 13 (see I. M. and Gebremedhin, and, mutatis mutandis, Boyle and Rice, §§ 54 -55; all cited above).", "118. More specifically, and of relevance to the present case, in deportation cases the Court has taken the view that loss of victim status in respect of alleged violations of Articles 2 and 3 of the Convention because an applicant was no longer exposed to the threat of deportation did not necessarily render that complaint non-arguable or deprive an applicant of his victim status for the purposes of Article 13. For example, in both the cases of I .M. and Gebremedhin (cited above), although the Court ruled that the applicants could no longer be considered as victims in respect of the alleged violation of Article 3, it found that the main complaint raised an issue of substance and that, in the particular circumstances, the applicants were still victims of the alleged violation of Article 13 taken together with Article 3. The same approach was taken recently by the Court in the case of De Souza Ribeiro in relation to a deportation complaint under Articles 8 and 13 ( De Souza Ribeiro v. France [GC], no. 22689/07, §§ 84 ‑ 100, 13 December 2012, read together with De Souza Ribeiro v. France, no. 22689/07, §§ 22-26, 30 June 2011).", "119. In the present case, having examined the case file, the Court considers that the applicant ’ s complaints under Articles 2 and 3 did raise a serious question as to the compatibility of his intended deportation in June 2010 with those provisions. It therefore finds that he can rely on Article 13. The Court observes in this respect that the Reviewing Authority in its decision granting the applicant refugee status held that the applicant had proved, in a convincing manner, that his fear of persecution and the danger to his life in the event of his return to Syria was objectively credible because of his political activity in Cyprus (see, mutatis mutandis, S.F. and Others v. Sweden, no. 52077/10, §§ 68-71, 15 May 2012 on the relevance of sur place activity in the receiving country).", "120. In the circumstances, it cannot be said that the applicant can no longer claim to be a victim of the alleged violation of Article 13 taken in conjunction with Articles 2 and 3.", "Firstly, as in the cases of I .M. and Gebremedhin (both cited above), the facts constituting the alleged violation had already materialised by the time the risk of the applicant ’ s deportation had ceased to exist. The applicant ’ s complaint is that when he was under threat of deportation there was no effective domestic remedy in respect of his complaints under Articles 2 and 3. The Court notes in this regard that at the time the applicant was to be sent back to Syria, his asylum application was being re-examined by the authorities and that it appears from the file that his deportation was halted only because of the application by the Court of Rule 39. The decision granting the applicant refugee status was taken more than ten months after he lodged his complaints before this Court. Secondly, although the authorities ’ decision to grant the applicant asylum has removed the risk that he will be deported, that decision does not acknowledge and redress his claim under Article 13 in conjunction with Articles 2 and 3 about the effectiveness of judicial review proceedings (see paragraphs 109-110 above). It cannot therefore deprive him of his status as a “victim” in respect of his complaint under this head.", "121. In the light of the foregoing and given that this complaint is not inadmissible on any other grounds, it must be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "122. The applicant claimed that there was no effective remedy in relation to his complaints under Articles 2 and 3 of the Convention as required by Article 13. Referring to the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ( [GC], no. 30696/09, §§ 288-293, ECHR 2011 ), he argued that the domestic remedies fell short of the requirements of Article 13 enunciated by the Court in its case-law.", "123. First of all, a recourse before the Supreme Court against a decision by the Reviewing Authority or deportation and detention orders did not have automatic suspensive effect; nor did the filing of an application for a provisional order. If an application for such an order was filed, whether or not deportation would be suspended boiled down to a matter of practice which rested on the authorities ’ discretion and required a concession on the part of the applicant. Moreover, and contrary to the Government ’ s submissions, the authorities did not always suspend deportation orders. The applicant relied on the court record in a recourse challenging a decision by the Reviewing Authority in a case in which deportation had taken place despite the fact that an application for a provisional order to suspend the execution of the deportation order had been filed. The person concerned had been deported the day before the hearing of the application by the Supreme Court. As a result the application was withdrawn ( Shahin Haisan Fawzy Mohammed, see paragraph 84 above). The applicant also claimed that asylum - seekers faced a number of difficulties in filing applications for provisional orders. Such an order would only be granted on proof of flagrant illegality or irreparable damage. Further, until recently, legal aid was not available either for the institution of a recourse against deportation and detention orders or for an application for a provisional order (see paragraph 7 2 above).", "124. Furthermore, although a decision by the Reviewing Authority was subject to judicial review, the Supreme Court could only examine its legality and could not examine the merits of the case. The scope of the Supreme Court ’ s jurisdiction was therefore too limited. Moreover, although it was possible, in view of recent amendments to the relevant domestic legislation, to apply for legal aid when challenging an asylum decision, it was rarely granted. The Supreme Court would only approve an application if it held that the recourse had a reasonable chance of success. It was, however, for the person concerned to establish the likelihood of success, which was a difficult hurdle to surmount since he or she would not have legal representation at that stage.", "125. Lastly, the applicant contended that there were significant shortcomings in the asylum procedures before the Asylum Service and the Reviewing Authority. As a result, the examination of asylum requests fell short of the standards required. The applicant referred to reports by, inter alia, local non- governmental organisations [6] and the fourth ECRI report on Cyprus (see paragraph 97 above).", "(b) The Government", "126. The Government submitted that the applicant had had effective domestic remedies in respect of his complaints under Articles 2 and 3 of the Convention as required by Article 13.", "127. The Government first pointed out that the applicant had had access to the asylum determination procedure at the Asylum Service and had been able to appeal to the Reviewing Authority. These remedies had suspensive effect. The applicant had then brought a recourse against the decision of the Reviewing Authority. Although these proceedings did not have automatic suspensive effect, in the course of the proceedings the applicant could have filed an application for a provisional order to suspend the execution of the deportation order issued against him. When such an application was filed, the authorities, as a matter of administrative practice, always suspended deportation either until the outcome of the main recourse or until the Supreme Court had reached a decision on the application. If an applicant agreed to an early hearing of the recourse and to withdraw the application for a provisional order, the authorities would suspend deportation for the duration of the entire main proceedings. Otherwise, deportation would be suspended only pending the examination of the application. The Government emphasised that the above practice was uniform and consistent and referred to a number of court records of judicial review proceedings in which both the above scenarios had taken place (see paragraphs 77-79 above).", "128. As regards the application for a provisional order, the Government pointed out that in accordance with domestic case-law, the Supreme Court would grant an order if an applicant established the flagrant illegality of the decision taken or that he or she had suffered irreparable damage as a result of the decision.", "129. The Government also claimed that the applicant should have brought a recourse challenging the deportation and detention orders issued against him. In such proceedings a provisional order could also be sought for the purpose of suspending deportation. The practice followed was the same as that in a recourse brought against a decision by the Reviewing Authority (see paragraph 12 7 above).", "130. In addition, the Government observed that the authorities, as a matter of usual practice, suspended the deportation order of a rejected asylum seeker if there were medical, family or humanitarian reasons for doing so. Additionally, before the execution of a deportation order, the authorities examined ex proprio motu whether there were reasons to believe that a rejected asylum seeker ’ s deportation would give rise to a real risk that he or she would be subjected to treatment in breach of Articles 2 and 3 of the Convention. The authorities also examined and decided any claim for suspension of the execution of the deportation irrespective of whether a recourse had been filed.", "2. The Court ’ s assessment", "131. The Court has already found that the applicant ’ s complaints under Articles 2 and 3 of the Convention are arguable and that the applicant can still claim to have been entitled to a remedy in that respect (see paragraphs 119 -1 21 above).", "132. The notion of an effective remedy under Article 13 in this context requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see M. and Others v. Bulgaria, no. 41416/08, § 129, 26 July 201 1; Salah Sheekh v. the Netherlands, no. 1948/04, § 153, 11 January 2007; and Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002 ‑ I ).", "133. In cases concerning the expulsion of asylum-seekers the Court has explained that it does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (see M.S.S., cited above, § 286) or to any other receiving country in which he or she would be at a real risk of suffering treatment in violation of Article 3 (see, for example in the specific context of the application of the Dublin Regulation, M.S.S., cited above, §§ 342 et seq ). Where a complaint concerns allegations that the person ’ s expulsion would expose him or her to a real risk of treatment contrary to Article 3 of the Convention, the effectiveness of the remedy for the purposes of Article 13 imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005 ‑ III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000 ‑ VIII ), as well as a particularly prompt response (see De Souza Ribeiro, cited above, § 82 ). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see, inter alia, De Souza, cited above, § 82, 1 3 December 2012; I.M. v. France, cited above, § 58; Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, § 32, 15 November 2011; Auad v. Bulgaria, no. 46390/10, § 120, 11 October 2011; Diallo v. the Czech Republic, no. 20493/07, § 74, 23 June 2011; M.S.S. , cited above, § 293; Baysakov and Others v. Ukraine, no. 54131/08, § 71, 18 February 2010; Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 108, 22 September 2009; and Gebremedhin, cited above, § 66 ). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right safeguarded by Article 2 of the Convention.", "134. Turning to the present case, the Court notes that the applicant ’ s asylum application and appeal thereto were initially rejected by the Cypriot authorities. His file, however, was subsequently re-opened for re ‑ examination in view of new information put forward by the applicant (see paragraph 17 above). When the first set of deportation and detention orders were issued on 11 June 2010 on the ground that the applicant was in Cyprus unlawfully, these proceedings were still pending (see paragraphs 17-22 above). Even though it appears that an internal note had been prepared a few days before by an officer of the Asylum Service with a negative proposal, no formal decision had been taken at this stage (see paragraph 18 above). The Reviewing Authority gave its decision on 30 September 2010 after having taken up the matter from the Asylum Service (see paragraph 22 above). The Court notes in this connection that under domestic law, proceedings before the Asylum Service and the Reviewing Authority are suspensive in nature. Consequently, as admitted by the Government in their observations of 20 September 2011 (see paragraph 182 below) a mistake had been made by the authorities as, at the time, the applicant had been in Cyprus lawfully. He should not, therefore, have been subject to deportation.", "135. The Government argued that the applicant should have lodged a recourse with the Supreme Court seeking the annulment of the deportation orders and that he should have applied for a provisional order to suspend his deportation in the context of those proceedings. The Court observes, however, that neither a recourse against deportation and detention orders, nor an application for a provisional order in the context of such proceedings, has automatic suspensive effect. Indeed, the Government have conceded this.", "136. The Government emphasised that an application for a provisional order was suspensive “in practice”. In particular, as a matter of administrative practice, the authorities refrained from removing the person concerned until a decision had been given by the Supreme Court on the application or, in the event of an agreement being reached between the parties entailing the withdrawal of the application and an early hearing, until the end of the main proceedings.", "137. The Court reiterates, however, that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. This is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention (see, mutatis mutandis, Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). The Court has, therefore, rejected similar arguments put before it in other cases concerning deportation advocating the sufficiency of a suspensive effect in “practice” (see, for example, Gebremedhin, § 66; and Čonka, §§ 81-83 both cited above). It has further pointed out the risks involved in a system where stays of execution must be applied for and are granted on a case-by-case basis (see Čonka, cited above, § 82).", "138. Given the above, the applicant cannot be found to be at fault for not having brought such proceedings (see, mutatis mutandis, Diallo, cited above, § 78).", "139. The Court further points out that the deportation and detention orders were obviously based on a mistake made by the authorities. Since the applicant ’ s asylum application was being re-examined, he continued to have the benefit of suspensive effect ( see paragraphs 74, 127 and 134 above). Yet, despite this the orders against the applicant continued to remain in force for more than two months, during which the re-examination of his asylum claim was still taking place, and the applicant was not removed to Syria during this period solely because of the application of Rule 39. No effective domestic judicial remedy was available to counter this error. Moreover, the Court notes the lack of any effective safeguards which could have protected the applicant from wrongful deportation at that time.", "140. The Court also observes that the deportation and detention orders of 11 June 2010 were subsequently annulled by the authorities and were replaced on 20 August 2010 by new orders issued on different grounds (see paragraph 48 above). Likewise, these too could not be executed until the re ‑ examination of his asylum claim by the authorities had been completed (see the judgment of the Supreme Court in Asad Mohammed Rahal, paragraph 74 above). Following the Reviewing Authority ’ s decision of 30 September 2010, however, the applicant was no longer authorised to remain in the country. Although the applicant filed a recourse before the Supreme Court against that decision, those proceedings were not automatically suspensive. Furthermore, in so far as the Government argue that the applicant should have filed an application for a provisional order to suspend his deportation in the course of those proceedings, the Court has already found that such an application does not have automatic suspensive effect (see paragraph 135 above). A recourse against the new orders would also suffer from the same shortcoming. As a result, the applicant could have been removed before the Supreme Court reached a decision on the matter.", "141. The Court concludes therefore that the applicant did not have an effective remedy in relation to his complaint under Articles 2 and 3 of the Convention.", "142. There has therefore been a violation of Article 13 of the Convention.", "143. In view of the above conclusion, the Court does not need to examine the applicant ’ s remaining complaint under this head concerning the scope of judicial review proceedings.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "144. The applicant complained that he did not have an effective remedy at his disposal to challenge the lawfulness of his detention. He relied on Article 5 § 4 of the Convention, which provides as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "145. The Government contested that argument.", "A. Admissibility", "146. The Government submitted that the applicant had not exhausted domestic remedies as he had failed to lodge a recourse under Article 146 of the Constitution challenging the lawfulness of the decision to detain and deport him.", "147. The applicant submitted in reply that this remedy was incompatible with Article 5 § 4 both in terms of “speediness” and scope.", "148. The Court finds that the issue raised by the Government ’ s plea of non- exhaustion of domestic remedies in reality goes to the merits of Article 5 § 4, namely, whether or not the applicant had at his disposal during his detention a remedy which would have provided him with an adequate and speedy judicial review of the lawfulness of his detention. The Court will therefore address this issue when examining the substance of the applicant ’ s complaint under this provision.", "149. It further notes that the applicant ’ s complaint is not manifestly ill- founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "150. The applicant submitted that there were no effective domestic remedies complying with the requirements of Article 5 § 4 of the Convention. First of all, he claimed that recourse proceedings before the Supreme Court against deportation and detention orders were excessively long and did not respect the requirement of speediness. In this connection, the applicant maintained that the average time for a recourse was one and a half to two years at first instance and three to four years on appeal. The applicant criticised the data provided by the Government, arguing that there was no information concerning the methodology used to calculate the average length of such proceedings. In particular, the Government had omitted to explain whether the average length of eight months provided in the data only concerned recourses which followed their normal course, or also recourses which were eventually withdrawn or in which an application for a provisional order had been filed and then withdrawn in exchange for an “accelerated” procedure. Further, the Government had failed to provide data on the length of appeal proceedings. In this respect, the applicant asserted that there was a significant delay in the examination of appeals. He noted that he had managed to find four cases in which appeal proceedings had been decided between 2008 and 2011, the average length of which had been three years. The applicant admitted, however, that he was not in a position to say whether the persons concerned had remained in detention during that period.", "151. As to the examples of recourses relied on by the Government (see paragraphs 77-79 above), the applicant submitted that these did not give an accurate picture of the situation. Four out of the five recourses had been eventually withdrawn by the persons concerned. The remaining one mainly concerned the lawfulness of the Reviewing Authority ’ s decision and not of the deportation and detention orders (see paragraph 7 9 above). A further three of the recourses could not be considered as separate cases as they involved members of the same family and had been jointly examined.", "152. The applicant also referred to four recourses in which the persons concerned had submitted an application for a provisional order and then withdrawn it in exchange for what the Government had claimed to be a speedy procedure. In these cases, the recourses had not been withdrawn and the duration of the proceedings ranged from approximately four months to over six months (see paragraphs 80-83 above).", "153. The applicant submitted that it was not reasonable to expect applicants in detention and deportation cases, with no means of subsistence, to have to lodge an ex parte application for a provisional order on top of a recourse, only to subsequently withdraw it in order to secure suspension of their deportation and a speedy determination of the legality of the deportation and detention orders. The applicant pointed out in this respect that there were practical difficulties associated with filing ex parte applications in deportation cases.", "154. The applicant also challenged the remedy in terms of its accessibility. First of all, the letters sent out by the authorities notifying the issuance of the deportation and detention orders made no mention of the remedies available to challenge their lawfulness. Secondly, although it was possible in view of recent amendments to the relevant domestic legislation to apply for legal aid in deportation and detention cases, this was, as in asylum cases, rarely granted (see paragraphs 72, 76 and 124 above).", "155. Besides these difficulties and the lack of speediness, the applicant argued that a recourse under Article 146 of the Constitution was also deficient in scope, as the Supreme Court ’ s jurisdiction was limited to examining the legality of the case and not its substance. Consequently, even if successful, this procedure was not always capable of leading to the release of the person concerned. The applicant explained that in the event of an annulment by the Supreme Court of deportation and detention orders, the authorities would simply issue new deportation and detention orders, taking care to ensure that they did not commit the same errors, and the detention would continue on the basis of the new orders. A fresh recourse would then have to be filed against the new decision.", "156. The applicant went on to stress that the domestic law did not provide for periodic review of detention for the purpose of deportation. Once deportation and detention orders were issued they were only subject to judicial review by the Supreme Court through the Article 146 procedure. A habeas corpus application could only be brought in order to challenge the lawfulness of detention in terms of its length. Although the applicant had used this remedy, he had been unsuccessful (see paragraphs 50-55 above). Referring to his habeas corpus application, the applicant, in his observations of 12 August 2012, complained that these proceedings did not comply with the requirements of Article 5 § 4.", "157. Finally, the applicant referred to the recent report by Amnesty International on the detention of migrants and asylum seekers in Cyprus, (see paragraphs 100-104 above).", "(b) The Government", "158. For their part, the Government submitted that the applicant had had an effective procedure at his disposal through which he could have obtained his speedy release. In particular, the applicant could have lodged a recourse under Article 146 of the Constitution challenging the lawfulness of the decision to detain and deport him. If he had succeeded, the relevant order would have been annulled and he would have been released. The applicant could also have filed, in the context of the recourse, an application for a provisional order seeking the suspension of his deportation. If the applicant had taken these steps he could have been released quickly. In this respect, the Government repeated their submissions under Article 13 of the Convention that, as a matter of administrative practice, if the applicant had agreed to an early hearing of the recourse and withdrawn his application for a provisional order, the authorities would have suspended the execution of the deportation order and the proceedings would have been expedited (see paragraphs 127-129 above). The lawfulness of the deportation and detention orders would have been adjudicated in a matter of weeks. The Government referred to the records of the proceedings in a number of recourses as examples of expedited judicial review proceedings (see paragraphs 77-79 above).", "159. The Government also submitted that according to official data the average length of first-instance proceedings in recourses against deportation and detention orders in the years 2010 and 2011 had been eight months. However, no data were available concerning appeal proceedings as, according to the Supreme Court registry records, only two appeals had been lodged during these two years. One had been withdrawn and one was still pending.", "2. The Court ’ s assessment", "(a) General principles", "160. Article 5 § 4 entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see, as a recent authority, Stanev v. Bulgaria [GC], no. 36760/06, § 168, ECHR 2012 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release (see Louled Massoud v. Malta, no. 24340/08, § 39 July 2010 ). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see Čonka, cited above, §§ 46 and 55). The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, amongst many authorities, Nasrulloyev v. Russia, no. 656/06, § 86, 11 October 2007, and Kadem v. Malta, no. 55263/00, § 41, 9 January 2003).", "161. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 with further references).", "162. Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful (see Sarban v. Moldova, no. 3456/05, § 118, 4 October 2005, and Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000 ‑ III ). The Court has laid down strict standards in its case-law concerning the question of State compliance with the speed requirement. In the cases of Sarban and Kadem (both cited above) and Rehbock v. Slovenia ( no. 29462/95, § 84, ECHR 2000-XII ), for example, the Court considered that time ‑ periods of twenty-one, seventeen and twenty-three days, respectively, were excessive.", "163. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case (see Rehbock, cited above; G.B. v. Switzerland, no. 27426/95, § 33, 30 November 2000; and M.B. v. Switzerland, no. 28256/95, § 37, 30 November 2000 ). An applicant, however, will not be required to pursue a particular remedy where the Court finds from the information and submissions before it that it would not have ensured a speedy review of his or her detention (see, for example, Louled Massoud, cited above, §§ 44-45, 27 July 2010, and Sabeur Ben Ali v. Malta, no. 35892/97, § 40, 29 June 2000).", "(b) Application to the present case", "164. Turning to the present case, the Court observes at the outset that the fact that the applicant was released on 3 May 2011 upon being granted refugee status does not render his complaint under this provision devoid of purpose bearing in mind that he was detained for more than ten months (see inter alia, Sadaykov v. Bulgaria, no. 75157/01, § 33, 22 May 2008; Čonka, cited above, § 55, in limine; and Louled Massoud, § 14, cited above; see also, mutatis mutandis, Kormoš v. Slovakia, no. 46092/06, §§ 93-94, 8 November 2011 ).", "165. The Court notes that under domestic law, the lawfulness of deportation and detention can only be examined in the context of a recourse brought under Article 146 of the Constitution within the required time- limit (see paragraphs 67-70 above). The Court has already examined the effectiveness of this remedy in so far as deportation is concerned for the purposes of Article 13 taken together with Articles 2 and 3. It must, however, now consider in so far as detention is concerned whether it meets the requirements of Article 5 § 4 of the Convention.", "166. The applicant did not make use of this remedy to challenge the detention orders issued against him as he claimed that it was deficient in speed and scope for the purposes of Article 5 § 4.", "167. As regards the requirement of “speediness”, the Court notes that according to the Government ’ s submissions the average length of a recourse challenging the lawfulness of a detention order, as also, at the same time, of a deportation order, is eight months at first instance (see paragraph 159 above). This is undoubtedly far too long for the purposes of Article 5 § 4.", "168. The Court has also examined the examples relied on by the Government in support of their contention that such proceedings can be expedited. These, however, are not at all satisfactory, even though the proceedings were of a lesser duration than the average given. The Court observes in this connection that the shortest time taken for the proceedings in these examples lasted one month and seventeen days and two months and twenty days respectively (see paragraphs 77-78 above). These periods are still excessive, bearing in mind the strict standards set down by the Court in its case-law (see paragraph 162 above) and the fact that they ended due to a withdrawal of the recourse by the persons concerned, without judgment having been given on the lawfulness of the decisions to deport and detain them. Not even one hearing had been held within the respective periods. The Court also notes that the applicants in these cases had to reach an agreement with the Government in order to expedite the proceedings. The Court reiterates in this respect that under Article 5 § 4 of the Convention the existence of domestic remedies must be sufficiently certain ( see paragraph 160 above) and that “speediness” is an indispensable requirement of that provision, which does not depend on the parties reaching an agreement in the proceedings.", "169. In view of the above considerations, the Court finds that pursuing a recourse would not have provided the applicant with a speedy review of the lawfulness of the decision to detain him, as required by Article 5 § 4 of the Convention. It is therefore unable to agree with the Government that the applicant should have tried that remedy.", "170. Accordingly, the Court concludes that there has been a violation of Article 5 § 4 of the Convention.", "171. Having regard to this finding, the Court does not consider it necessary to examine the remainder of the applicant ’ s complaints concerning the judicial review proceedings (see paragraphs 154-155 above) and those subsequently raised in his observations in relation to the habeas corpus proceedings (see paragraph 156 above).", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "172. The applicant further complained that his detention had been unlawful and therefore in breach of Article 5 § 1 (f) of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "A. The parties ’ submissions", "1. The applicant", "173. The applicant submitted that his detention from 11 June 2010 until 3 May 2011 had been arbitrary and contrary to Article 5 § 1 (f) of the Convention. First of all, he had been arrested on the above-mentioned date without a warrant even though he had not been arrested for committing a flagrant offence. Although the authorities claimed that the protesters, including the applicant, had committed a number of offences under, for example, the Public Roads Law, they had not arrested them on such grounds. Further, the authorities did not know at the time the names and particulars of the protesters and could not therefore have known whether they had been staying in Cyprus unlawfully. Consequently, until the deportation and detention orders were issued against him, his arrest and detention had not been in conformity with the procedural requirements of domestic law and Article 11 (3) of the Constitution (see paragraph 88 above). The applicant noted in this respect that in the light of the Government ’ s observations it was not at all clear on what grounds he had actually been arrested and detained during this period.", "174. Secondly, the authorities had proceeded to issue deportation and detention orders against him under the Aliens and Immigration Law on the basis that he was an unlawful immigrant. Yet, according to the domestic law, the applicant had been lawfully residing in Cyprus as his asylum application was still pending with the Reviewing Authority. In fact, the decision of the Reviewing Authority had been taken on 30 September 2010, that is, more than three months after his arrest. Nonetheless, the applicant had been kept in detention throughout this period.", "175. Thirdly, the new orders issued by the authorities on 20 August 2010 on public order grounds had been completely unjustified. The Government pleaded that the applicant had been dangerous to the public order and the security of the Republic but did not put forward any justification or evidence in this respect. In the applicant ’ s view the authorities had acted in bad faith and/or on the basis of misinformation. Furthermore, those orders had never been communicated to the applicant in accordance with section 14 (6) of the Aliens and Immigration Law. The applicant found out about the decision of the Minister of the Interior when he received a copy of the Government ’ s letter of 12 October 2010 to the Court informing the latter of the issuance of these orders ( see paragraphs 47 -48 above).", "176. Even assuming, however, that his detention had been compatible with the domestic law, the applicant considered that it had ceased to be so because of its excessive duration. Unlike in the case of Chahal v. the United Kingdom (15 November 1996, Reports 1996 ‑ V), the length of detention in his case could not be justified on the basis of any exceptional circumstances. The authorities had not been able to deport the applicant only because of the Court ’ s interim measure. In addition, the maximum period of detention of six months, provided for in Directive 2008/115/ EC (see paragraphs 86 and 9 8 above) which had been directly applicable in domestic law, had elapsed. Despite this the authorities had continued to detain him. In the applicant ’ s view, his continued detention could only be considered as a form of punishment. The authorities could have released him and granted him a temporary residence permit on humanitarian grounds pending the examination of his case both domestically and by the Court.", "2. The Government", "177. The Government submitted that an unacceptable situation had been created by the protesters on one of the busiest streets of Nicosia, on which office blocks and public buildings were situated. It posed a risk to the health of both the public and the protesters themselves, it obstructed the free passage of traffic and pedestrians, it caused a public nuisance and it created a risk of spreading disease to members of the public who worked and lived in the area and who had complained to the authorities. The protesters had refused to co-operate with the authorities and efforts to persuade them to leave had been to no avail.", "178. There had been two avenues open to the authorities: either to arrest the protesters for a number of flagrant criminal offences committed at the place of protest and punishable by imprisonment, for example, under the Public Roads Law (Cap. 83, as amended) and the Prevention of Pollution of Public Roads and Places Law (Law 19 (I)/92, as amended) (see paragraphs 91-92 above), or to take measures to peacefully remove the protesters. They had opted for the latter course of action in order to avoid a risk of a violent reaction or clashes and to enable a careful examination of the immigration status of each protester. It would have been impossible for the police to do an on-the-spot check. In taking their decision the police had also considered that there were women and children among the protesters.", "179. The Government noted that on 11 June 2010 the police, in removing the protesters, including the applicant, had acted in the exercise of their duties under the Police Law (Law no. 73(I)/2004 as amended) in order to, among other things, prevent the commission of criminal offences and public nuisance, maintain order on public roads, streets, passages and places to which the public had access and regulate the maintenance of order in cases of obstruction of public roads and streets and other places to which the public had access (sections 24(2) and 29(1)(c) and (d) of the Law, see paragraphs 89-90 above). The aim of the police had been to remove the protesters peacefully and transfer them to the ERU headquarters in order to question them for the purpose of ascertaining their names and status and, in particular, to identify those whose asylum applications had been rejected and who were unlawfully residing in the Republic. The Government considered that it had been completely legitimate, in the course of an operation for the removal of the protesters from the street, to also try to identify any Kurds from Syria who had been staying in the Republic unlawfully following the rejection of their asylum applications.", "180. The Government emphasised in this regard that neither the applicant nor the other protesters had been deprived of their liberty when they had been removed from the street and taken to the ERU headquarters along with the other protesters. Nor had they been deprived of their liberty at the headquarters during the examination of their papers for the purpose of determining their immigration status. The authorities had transferred the protesters, including the applicant, to the ERU headquarters for identification purposes and not to arrest and detain them (relying on X. v Germany, no. 8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) vol. 24, p. 158). They had not been kept in cells, they had not been handcuffed and they had been given food and drink. Those who had been identified as being lawfully resident in the Republic had gone home. The rest had been arrested. The applicant ’ s detention had commenced once he had been charged with the flagrant criminal offence of unlawful stay in the Republic and arrested on this ground.", "181. In this connection, in their first set of observations to the Court dated 3 June 2011, the Government maintained that the applicant ’ s arrest and detention on the ground of unlawful stay had been lawful as it had been in conformity with domestic law and procedure. The applicant had been arrested on the ground that he had been a “prohibited immigrant” staying in the Republic unlawfully after the rejection of his asylum application. They noted in this respect that the criminal offence of unlawful stay was a flagrant offence punishable by imprisonment under section 19 (2) of the Aliens and Immigration Law. Article 11 (4) of the Constitution permitted arrest without a warrant for flagrant offences carrying a term of imprisonment. The deportation and detention orders had been issued on the same day, before the lapse of the twenty-four hour time-limit set by Article 11 (5) of the Constitution. His detention had continued on the basis of these orders for the purpose of effecting his deportation.", "182. In their subsequent observations of 20 September 2011, however, the Government admitted that a mistake had been made with regard to the applicant. As his asylum application had been pending with the authorities at the time, the applicant had in fact at the time of his arrest been legally residing in the Republic.", "183. The Government made no submissions, further to their letter of 12 October 2010 ( see paragraph 47 above), with regard to the new deportation and detention orders issued against the applicant on 20 August 2010 and his continued detention on that basis. They did not comment on whether the applicant had been given notice of those orders either.", "B. The Court ’ s assessment", "184. The Court notes that the applicant ’ s complaint under Article 5 § 1 of the Convention can be divided into three parts that require separate examination:", "- the first part concerns his transfer, along with the other protesters, to the ERU headquarters on 11 June 2010 and his stay there pending his identification;", "- the second part concerns his detention on the basis of the deportation and detention orders issued against him on 11 June 2010 under section 6(1)(k) of the Aliens and Immigration Law; and", "- the third part concerns his detention on the basis of the deportation and detention orders issued against him on 20 August 2010 under section 6(1)(g) of the Aliens and Immigration Law.", "1. The applicant ’ s transfer to and stay at the ERU headquarters on 11 June 2010", "(a) Admissibility", "185. The Court notes that the parties disagree on whether or not the applicant ’ s situation during this period amounted in practice to a deprivation of liberty. The Government dispute the applicant ’ s arguments and, hence, the applicability of Article 5 § 1 of the Convention to this period.", "186. Article 5 § 1, which proclaims the “right to liberty”, is concerned with a person ’ s physical liberty. Its aim is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion. In determining whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, the starting -point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see, amongst many authorities, Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, 15 March 2012; Stanev, cited above, § 115, 17 January 2012; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010; and Guzzardi v. Italy, 6 November 1980, §§ 92- 93). It is clear that the question whether there has been a deprivation of liberty is very much based on the particular facts of a case (see, for example, Austin, § 61, cited above).", "187. In determining whether or not there has been a violation of Convention rights it is often necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( for example, in relation to Article 5 § 1, see, Creangă v. Romania [GC], no. 29226/03, § 91, 23 February 2012 and Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50). The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court ’ s conclusion as to the existence of a deprivation of liberty.", "188. The Court notes that in cases examined by the Commission, the purpose of the presence of individuals at police stations, or the fact that the parties concerned had not asked to be allowed to leave, were considered to be decisive factors. Thus, children who had spent two hours at a police station in order to be questioned without being locked up were not found to have been deprived of their liberty (see X. v. Germany, no 8819/79, cited above) nor was an applicant who had been taken to a police station for humanitarian reasons, but who was free to walk about on the premises and did not ask to leave (see Guenat v. Switzerland (dec.), no. 24722/94, Commission decision of 10 April 1995). Likewise, the Commission attached decisive weight to the fact that an applicant had never intended to leave the courtroom where he was taking part in a hearing (see E.G. v. Austria, no. 22715/93, Commission decision of 15 May 1996).", "189. The case-law has evolved since then, as the purpose of measures taken by the authorities depriving applicants of their liberty no longer appears decisive for the Court ’ s assessment of whether there has in fact been a deprivation of liberty. To date, the Court has taken this into account only at a later stage of its analysis, when examining the compatibility of the measure with Article 5 § 1 of the Convention (see Creangă, § 93, cited above; Osypenko v. Ukraine, no. 4634/04, §§ 51-65, 9 November 2010; Salayev v. Azerbaijan, no. 40900/05, §§ 41-42, 9 November 2010; Iliya Stefanov v. Bulgaria, no. 65755/01, § 71, 22 May 2008; and Soare and Others v. Romania, no. 24329/02, § 234, 22 February 2011).", "190. Furthermore, the Court reiterates its established case-law to the effect that Article 5 § 1 may also apply to deprivations of liberty of a very short length (see, among many authorities, Brega and Others v. Moldova, no. 61485/08, § 43, 24 January 2012; Shimovolos v. Russia, no. 30194/09, §§ 48-50, 21 June 2011; Iskandarov v. Russia, no. 17185/05, § 140, 23 September 2010; Rantsev v. Cyprus and Russia, no. 25965/04, § 317, ECHR 2010 (extracts); and Foka v. Turkey, no. 28940/95, § 75, 24 June 2008).", "191. Turning to the facts of the present case, the Court observes that according to the available information a large-scale operation was carried out on 11 June 2010 at 3 a.m. involving about 250 police officers, in order to remove the protesters from the place of protest (see paragraph 36 above). The applicant and another 148 protesters were boarded on buses and taken to the ERU headquarters where they remained for a number of hours pending their identification and ascertainment of their immigration status.", "192. The Court first notes in this respect that in contrast to the exceptional circumstances examined by the Court in Austin (cited above, §§ 66 and 68), there is no evidence in the instant case that the police were faced, at the place of protest, with a volatile or dangerous situation that gave rise to a real and immediate risk of violent disorder or serious injury to persons or property.", "193. Second, although it appears that there was no resistance on the part of the protesters, it cannot be said that they had in the circumstances a real choice and that they boarded the buses and remained on the police premises voluntarily. The Court notes in this respect that the operation took place at 3 a.m., at a time when the majority of the protesters were sleeping (see paragraph 36 above). Bearing in mind the nature, scale and aim of the operation, the manner in which it was carried out and the overall measures taken by the authorities, it would be unrealistic to assume that the protesters were free to refuse to board the buses or to leave the police headquarters. Nor have the Government indicated that they were. It is clear that the aim of the operation was also to identify the protesters who were staying in the country unlawfully with a view to deporting them. Only those who were found to be lawfully residing in Cyprus were able to leave the premises. There was undoubtedly an element of coercion, which in the Court ’ s view is indicative of a deprivation of liberty within the meaning of Article 5 § 1. The fact that nobody had been handcuffed, put in cells or otherwise physically restrained during the period in question does not constitute a decisive factor in establishing the existence of a deprivation of liberty ( see I.I. v. Bulgaria, no. 44082/98, § 87, 9 June 2005, and Osypenko, cited above, § 32).", "194. The Court also refers, in this respect, to the instructions received by the police to use “discreet methods of arrest ” (see paragraph 31 above).", "195. In these circumstances the Court considers that the applicant ’ s transfer to and stay in the ERU headquarters during this period amounted to a de facto deprivation of liberty within the meaning of Article 5 § 1 and that this provision applies to his case ratione materiae.", "196. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "197. The Court must now determine whether the applicant ’ s detention was compatible with Article 5 § 1. It reiterates that in order to comply with this provision, the detention in issue must first of all be “lawful”. This must include the observance of a procedure prescribed by law. In this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see Benham v. the United Kingdom, 10 June 1996, § 40, Reports 1996 ‑ III ). However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion.", "198. The Court must, moreover, ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see Zervudacki v. France, no. 73947/01, § 43 and Baranowski v. Poland, §§ 50 ‑ 52, cited above ).", "199. In the present case, the Government have submitted that the applicant, along with the other protesters, was not deprived of his liberty during this period (see paragraph 180 above). It appears that for this reason, although they have given explanations for the actions of the authorities, they have not relied on any particular provision as a legal basis for the deprivation of liberty.", "200. In this particular regard, the Government have submitted that the authorities opted for the peaceful removal of the protesters and that the police acted in exercise of their duties under the Police Law in order to, inter alia, prevent the commission of certain criminal offences and public nuisance and to maintain order on public roads and in public areas (see paragraphs 89-90 above). The specific provisions referred to by the Government concern the powers and duties of police officers to arrest people they are lawfully authorised to arrest and their duty to preserve order on public roads and to regulate movement, but it has not been claimed that any of these powers were actually used to effect the arrest of the applicant and the other protesters.", "201. At the same time, the Government submitted that the operation also aimed to identify the protesters and ascertain their legal status. The authorities suspected that a number of the protesters were failed asylum seekers and, therefore, “ prohibited immigrants ”, but considered that it would have been impossible to carry out an effective on-the-spot inquiry without provoking a violent reaction. Consequently, all the protesters were taken to the ERU headquarters for identification purposes and to determine whether or not they were unlawful immigrants. The Government have not, however, acknowledged that there was a deprivation of liberty on this ground.", "202. The Court is conscious of the difficult situation that the Cypriot authorities found themselves in and that an operational decision had to be taken. This, however, cannot justify the adoption of measures giving rise to a deprivation of liberty without any clear legal basis.", "203. It follows that the applicant ’ s deprivation of liberty during this period was contrary to Article 5 § 1 of the Convention. There has, therefore, been a violation of this provision.", "2. The applicant ’ s detention on the basis of the deportation and detention orders issued on 11 June 2010 and 20 August 2010", "(a) Admissibility", "204. The Court notes that it is not disputed that the applicant was deprived of his liberty from 11 June 2010 until 3 May 201 1 on the basis of deportation and detention orders issued under the Aliens and Immigration Law.", "205. The Court further notes that the applicant ’ s complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "(b) Merits", "206. The Court is satisfied that the applicant ’ s deprivation of liberty from 11 June 2010 to 3 May 2011 fell within the ambit of Article 5 § 1 (f) of the Convention as he was detained for the purpose of being deported from Cyprus. This provision does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c) (see Chahal §§ 112-113 and Čonka, § 38, both cited above). All that is required under this provision is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Chahal, cited above, § 112).", "207. The Court notes that Cypriot law allows for the possibility of detention with a view to deportation. The Court observes in this respect that both the decisions of 11 June and 20 August 2010 ordering the applicant ’ s detention and deportation were based on section 14 of the Aliens and Immigration Law, which permits the Chief Immigration Officer to order the deportation of any alien who is a prohibited immigrant and his or her detention in the meantime (see paragraph 63 above).", "208. It follows that the issue to be determined is whether the applicant ’ s detention under that provision was “lawful”, including whether it complied with “a procedure prescribed by law” ( see paragraphs 197-198 above).", "i. The applicant ’ s detention between 11 June and 20 August 2010 on the basis of the deportation and detention orders of 11 June 2010", "209. The Court notes that the applicant was charged on 11 June 2010 with the offence of unlawful stay and was detained, on the basis of deportation and detention orders issued on the same day, for a total of two months and nine days. These orders had been issued pursuant to section 6(1)(k) of the Aliens and Immigration Law on the ground that the applicant was a “ prohibited immigrant ” staying in the Republic unlawfully. However, it is clear from the information before the Court that this was not the case as, at the time, the re-examination of the applicant ’ s asylum application was still pending. Indeed, the Government admitted in their observations of 20 September 2011 that the applicant had been legally residing in the Republic and that a mistake was made by the authorities.", "210. In these circumstances, the Court finds that during this period the applicant was unlawfully deprived of his liberty. There has therefore been a violation of Article 5 § 1 of the Convention.", "ii. The applicant ’ s detention between 20 August 2010 and 3 May 2011 on the basis of the deportation and detention orders of 20 August 2010", "211. By a letter dated 12 October 2010, the Government informed the Court that on 17 August 2010 the Minister of Interior had declared the applicant an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law, on the basis of information that he had been involved in activities relating to the receipt of money from prospective Kurdish immigrants in exchange for securing residence and work permits in Cyprus. Deportation and detention orders had then been issued on 20 August 2010 on the basis of the above provision and the previous orders of 11 June 2010 were annulled (see paragraphs 47-48 above). The applicant was therefore detained on the basis of these orders for another eight months and twelve days until his release on 3 May 2011. The applicant, however, claims that the orders had not been communicated to him in accordance with domestic law and that he had found out about the decision of the Minister of the Interior following an exchange of information between the parties in the context of the Court proceedings.", "212. The Court first observes that there does not appear to have been any follow-up to the allegations against the applicant so as to lend support to what was imputed to him.", "213. Secondly, the Court notes that, according to section 14(6) of the Aliens and Immigration Law, a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for the decision unless this is not desirable on public-security grounds (see paragraph 63 above). This provision affords certain minimum guarantees to persons against whom a decision to deport and/or detain has been taken (see the Supreme Court ’ s judgments in Uros Stojicic and Kamran Sharajeel, paragraph 64 above ).", "214. The Government, on 12 October 2010, provided the Court with a copy of the deportation and detention orders, which were written in Greek. However, they have not submitted any evidence that the applicant was notified by the authorities of the issuance of these orders and the new grounds for his detention. Indeed, the Government have not made any submissions on this matter.", "215. Consequently, in the absence of any evidence or explanation by the Government to the contrary, the Court finds that the applicant was not given notice of the new deportation and detention orders in accordance with section 14(6) of the Aliens and Immigration Law. Although section 14(6 ) provides an exception to this rule on public-security grounds, the Government have not pleaded this as a reason for not communicating the orders to the applicant. Nor can it be said, on the basis of the file in any event, that there was a potential public-security issue.", "216. The Court therefore finds that the procedure prescribed by law was not followed (see Voskuil v. the Netherlands, no. 64752/01, §§ 81-83, 22 November 2007).", "There has accordingly also been a violation of Article 5 § 1 of the Convention in so far as this period of detention is concerned.", "C. Overall conclusion", "217. The Court finds a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s entire period of detention, namely, from 11 June 2010 until 3 May 2011 (see paragraphs 197 -203, 209-210 and 211 ‑ 216 above).", "V. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION", "218. The applicant complained that the authorities had not complied with the requirements of Article 5 § 2 of the Convention. This provision reads as follows:", "“ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”", "219. The Government contested that argument.", "A. Admissibility", "220. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "221. First of all, the applicant submitted that he had not been informed of the grounds for his arrest either at the place of protest or when he was brought to the ERU headquarters. It was only on 14 June 2010, more than 72 hours after his arrest, that he had been informed orally that he would be deported to Syria on the same day. Relying on the Court ’ s judgment in Saadi v. the United Kingdom ([GC], no. 13229/03, ECHR 2008), the applicant pointed out that this could not be considered to be “prompt” and therefore in line with the requirements of Article 5 § 2. Although the applicant, along with a number of others, had submitted a Rule 39 request the day after his arrest, this had been due to the involvement of other members of the Kurdish community in Cyprus and the Yekiti Party who had been afraid that there was a serious possibility of deportation and instructed a lawyer to take action on behalf of those concerned.", "222. Furthermore, the applicant pointed out that the deportation and detention orders had not been served on him. He had found out about them through his lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court. Likewise, the applicant had not been served with the letter of 11 June 2010. In this connection, the applicant noted that he had never refused to take receipt of any kind of information in writing. He also considered it strange that police officers in different detention centres had managed to co-ordinate and deliver all these letters to so many people on the same day. In any event, the letter addressed to the applicant was in English, a language that he could not understand. Moreover, it did not contain any information as to the remedies available for challenging the decision to detain and deport him.", "223. Lastly, the applicant had not been notified of the new orders issued against him on 20 August 2010 but had found out about the decision of the Minister of the Interior when he received a copy of the Government ’ s letter of 12 October 2010 to the Court informing the latter of the issuance of those orders (see paragraphs 47 -48 above ).", "(b) The Government", "224. The Government submitted that once he had been identified at the ERU headquarters, the applicant was arrested and charged with the flagrant offence of unlawful stay in the Republic. He had been told there and then of the reasons for his arrest and detention, namely, that he had been staying on the territory unlawfully and was therefore a “prohibited immigrant”. He had also been informed that he had been detained with a view to his deportation and that this was imminent. Further, he had been informed of his right, under the Law on the Rights of Persons who are Arrested and Detained (Law no. 163(1)/2005 ), to contact a lawyer of his own choice (see paragraph 93 above). As a result the applicant had been able to appoint a lawyer and apply to the Court for an interim measure. In any event, the Government considered that in view of the identification process at the ERU headquarters, during which the police had asked the applicant for his identity papers and questioned him about his immigration status, the reasons for his arrest and detention must have been evident to him.", "225. In addition, the Government noted that a letter had been prepared in English by the Civil Registry and Migration Department informing the applicant of the authorities ’ decision to deport him and the reasons for that decision. The letter also informed the applicant that his temporary residence permit had been revoked and that he had the right to be represented before the authorities, to seek the services of an interpreter and to express possible objections to his deportation. The applicant had, however, refused to sign and receive the letter (see paragraph 44 above).", "226. The Government did not make any submissions as to whether the applicant had been notified on 20 August 2010 of the new deportation and detention orders and, consequently, the change of the legal basis of his detention (see paragraph 183 above).", "2. The Court ’ s assessment", "(a) General principles", "227. The Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that anyone who has been arrested should know why he is being deprived of his liberty. This is a minimum safeguard against arbitrary treatment. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 anyone who is arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed are sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182). Anyone entitled to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the reasons relied on to deprive him of his liberty (see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A). Further, if the grounds for detention change, or if new relevant facts arise concerning the detention, a detainee has a right to this further information (see X. v. the United Kingdom, no. 6998/75, Commission ’ s report of 16 July 1980, § 105, Series B no. 41).", "228. The constraints of time imposed by the notion of promptness will be satisfied where the reasons for the arrest are provided within a few hours of arrest (see Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999, and Fox, Campbell and Hartley, cited above, § 41 ). A violation was found by the Court where seventy-six hours elapsed before the applicants were informed of the reasons of detention ( Saadi, §§ 55-56, cited above; see also Shamayev and Others v. Georgia and Russia, § 416, cited above, where the Court found a violation in respect of a four-day delay; and Rusu v. Austria, no. 34082/02, § 43, 2 October 2008 in respect of a ten-day delay).", "229. As regards the manner of communicating the reasons for the arrest, Article 5 § 2 does not require the reasons to be given in writing to the detained person or otherwise in a particular form ( see Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011, and X. v. Germany, no. 8098/77, Commission decision of 13 December 1978, DR 16, p. 111). Further, the reasons may be provided or become apparent in the course of post-arrest interrogations or questioning (see Kerr, cited above; Murray v. the United Kingdom, 28 October 1994, § 77, Series A no. 300 ‑ A; and Fox, Campbell and Hartley, § 41, cited above).", "230. It should also be noted that when a person is arrested with a view to extradition, the information given may be even less complete (see Kaboulov v. Ukraine, no. 41015/04, §§ 143-144, 19 November 2009, with further references; Ryabikin v. Russia (dec.), no. 8320/04, 10 April 2007; and K. v. Belgium, no. 10819/84, Commission decision of 5 July 1984, DR 38, p. 230). A similar approach has been taken in deportation cases ( see, for example, Kane, cited above).", "(b) Application to the present case", "231. In the present case on 11 June 2010 the applicant, along with the other protesters, was taken to the ERU headquarters and kept there for identification purposes. His detention continued on the basis of deportation and detention orders issued on the same day which remained in force until 20 August 2010. New orders were then issued on the latter date, changing the grounds for the applicant ’ s detention.", "232. In view of the above, the Court considers that the applicant ’ s complaint under this provision is twofold.", "233. First of all, the Court has to examine whether the applicant was informed of the reasons for his detention on 11 June 2010. In this respect, the Court notes that the parties differ as to the exact date when the applicant found out about the reasons for his detention. On the one hand, the applicant claimed that he had not been informed orally of the grounds for his arrest and detention until 14 June 2010, that is, after more than seventy-two hours. He also stated in that connection that he had not received any information in writing. According to the Government, on the other hand, the applicant had been informed orally on 11 June 2010, once his identity had been checked, of the grounds for his arrest and detention as well as the fact that he was facing imminent deportation. They also claimed that in any event, these grounds must have become apparent to him during the identification procedure. As to the written reasons, they stated that attempts had also been made to serve the applicant with the relevant letter.", "234. The Court observes that upon his transfer to the ERU headquarters the applicant, along with the rest of the protesters, underwent an identification procedure which was aimed at ascertaining whether any of them were staying in Cyprus unlawfully. The Court has no reason to doubt, in the circumstances, that the applicant was informed at the time that he had been arrested on the ground of unlawful stay or that he at least understood, bearing in mind the nature of the identification process, that the reason for his arrest and detention related to his immigration status. In this connection, the Court notes that the applicant filed a Rule 39 request, along with a number of other protesters, the very next day, seeking the suspension of their deportation. A reading of this request indicates that they were all aware of the fact that they were detained for the purpose of deportation.", "235. The foregoing considerations are sufficient to enable the Court to conclude that the requirements of Article 5 § 2 of the Convention were complied with.", "236. There has accordingly been no violation of this provision as regards the first part of the applicant ’ s complaint.", "237. The second issue under this provision concerns the notification of the applicant of the new grounds for his detention on 20 August 2010. However, having regard to its findings under Article 5 § 1 of the Convention pertaining to the applicant ’ s detention on this new basis (see paragraphs 2 11-216 above), the Court considers that it is not necessary to examine this part of the case under Article 5 § 2 as well.", "VI. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 4 TO THE CONVENTION", "238. Lastly, the applicant complained of a violation of Article 4 of Protocol No. 4 in that the authorities were going to deport him and others collectively without having carried out an individual assessment and examination of his case. This provision provides as follows:", "“Collective expulsion of aliens is prohibited.”", "A. Admissibility", "239. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "240. The applicant, relying on the Čonka judgment (cited above), submitted that he had been the subject of a collective expulsion operation. In his view, the intention of the authorities had been to deal with a group of individuals, namely Syrian Kurds, collectively. This had been evident from all the circumstances of the case. The relevant meetings that had been held by the authorities concerned the handling of the situation of Syrian Kurdish failed asylum - seekers. The Minister of the Interior had given instructions to proceed with the deportation of Syrian Kurdish failed asylum-seekers with the exception of those who were Ajanib or Mahtoumeen. The police had been instructed to use discreet methods of arrest and execute the deportation orders starting with the leaders of the protest. As a result, the police had carried out an operation on 11 June 2010 against the whole group of protesters, including women and children. According to the Government only those whose asylum applications had still been pending were released. The rest had been kept in detention pending deportation. However, in reality, the asylum procedure had not been completed for the applicant as well as a number of other protesters whom the Government had intended to deport. If it had not been for the application of Rule 39 by the Court they would all have been deported. In fact, some of the protesters had been released by the authorities following the application of Rule 39 and had had their deportation orders annulled. The applicant also noted that the authorities had issued deportation orders against stateless Syrian Kurds and that some of the asylum-seekers concerned had had their asylum applications dismissed purely on procedural grounds without having benefited from an examination of the merits of their claim.", "241. The applicant further pointed out that everyone had been arrested at the same time and had been informed orally of the same thing, namely, that they would be deported. The letters prepared by the authorities had been couched in identical terms and had therefore just been a formality. The same could be said for a number of the letters sent, requesting the individuals concerned to make arrangements to depart from Cyprus, as they had been issued just before the operation was carried out or just after and, in one case, even after the person in question had been sent back to Syria.", "242. Consequently, it could not be said in the circumstances that an individual examination of each case had taken place. The applicant submitted therefore that all the elements indicated that the authorities had carried out a collective expulsion operation in violation of Article 4 of Protocol No. 4.", "(b ) The Government", "243. The Government submitted that the authorities had carried out a detailed individual examination of the immigration status of all the protesters in order to ascertain whether or not they were staying in the Republic unlawfully. Letters proposing detention and deportation had been issued on the same day and separate deportation and detention orders had then been issued against each person. Although the instructions given by the Minister of the Interior to the authorities had been that the deportation of Kurdish failed asylum-seekers from Syria should go ahead in the normal way, these instructions could not have been enforced without the issuing of deportation and detention orders. The latter had been issued on the ground of unlawful stay and not on the basis of the aforementioned instructions. The authorities had already been searching for a number of people who were among the protesters and had been staying in Cyprus unlawfully. Some of them had already been asked to leave the country following the rejection of their asylum applications.", "244. The authorities would have therefore proceeded in any event to deport these individuals once traced, even if the Minister had not given the relevant instructions. The Government therefore maintained that it had acted in compliance with Article 4 of Protocol No. 4.", "2. The Court ’ s assessment", "(a) General principles", "245. According to the well-established case ‑ law of the Commission and the Court, collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure of the competent authority compelling aliens, as a group, to leave the country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien in the group ( see, for example, Hirsi Jamaa and Others v. Italy, [GC], no. 27765/09, §§ 166-167, ECHR 2012; Čonka, cited above; § 59, Ghulami v. France (dec), no. 45302/05, 7 April 2009; Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts); Davydov v. Estonia (dec), no. 16387/03, 31 May 2005; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; A. and Others v. the Netherlands, no. 14209/88, Commission decision of 16 December 1988; O. and Others v. Luxembourg, no. 7757/77, Commission decision of 3 March 1978; K.G. v. the F.R.G ., no. 7704/76, Commission decision of 1 March 1977; and Henning Becker v. Denmark, no. 7011/75, Commission decision of 3 October 1975). It can be derived from this case-law that the purpose of Article 4 of Protocol No. 4 is to prevent States from removing certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority (see Hirsi, cited above, §177 ).", "246. The fact, however, that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see the judgments in Hirsi, § 184 and Sultani, § 81, both cited above; the Court ’ s decisions in Ghulami and Andric, both cited above; and the Commission ’ s decisions in Tahiri v. Sweden, no. 25129/94, decision of 11 January 1995 and B. and others v. the Netherlands, no. 14457/88, decision of 16 December 1988).", "247. Moreover, there will be no violation of Article 4 of Protocol No. 4 if the lack of an expulsion decision made on an individual basis is the consequence of an applicant ’ s own culpable conduct (see Berisha and Haljiti v. “the former Yugoslav Republic of Macedonia”, no. 18670/03, decision of 16 June 2005, where the applicants had pursued a joint asylum procedure and thus received a single common decision, and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011, where the applicants had refused to show their identity papers to the police and thus the latter had been unable to draw up expulsion orders in the applicants ’ names).", "248. The Court observes that, to date, it has found a violation of Article 4 of Protocol No. 4 in only two cases. First, in Čonka, which concerned the deportation of Slovakian nationals of Roma origin from Belgium to Slovakia, the Court found a breach because the procedure followed by the authorities did not enable it to eliminate all doubt that the expulsion might have been collective. This view was taken on the grounds that the applicants ’ arrest and consequent expulsion was ordered for the first time in a decision of 29 September 1999 on a legal basis unrelated to the requests for asylum, and in view of the large number of people of the same origin who had suffered the same fate as the applicants. The Court added that the doubt was reinforced by a series of factors:", "“ ... firstly, prior to the applicants ’ deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation ...; secondly, all the aliens concerned had been required to attend the police station at the same time; thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.”", "249. In these circumstances, the Court concluded that the procedure followed by the Belgian authorities had not afforded sufficient guarantees ensuring that the personal circumstances of each of those concerned had been genuinely and individually taken into account (§ 63).", "250. The Court considered that the measures taken on 29 September 1999 had to be seen in isolation from the earlier decisions regarding the asylum procedure in which the applicants ’ individual circumstances had been examined and which, according to the minority view, provided sufficient justification for the expulsion (see the separate opinions of Judge Velaers and Jungwiert joined by Judge Kūris).", "251. The recent case of Hirsi (cited above, §§ 166-186 ) concerned the return of migrants, intercepted on the high seas by Italian naval vessels, to Libya, which was the country of their departure. The Court came without difficulty to the conclusion that there had been a clear violation of Article 4 of Protocol No. 4. It first ruled on the complicated issue of the extraterritorial applicability of Article 4 of Protocol No. 4 which arose in that case. Once it had found that this provision was applicable, the violation was self-evident, as the transfer of the applicants to Libya had been carried out without any form of examination of each applicant ’ s individual situation. It was not disputed that the applicants had not undergone any identification procedure by the Italian authorities, who restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers. In the Court ’ s view this was sufficient to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination (§§ 185-186).", "(b) Application of the above principles", "252. In the instant case, the Court notes that an identification procedure in respect of the 149 Syrian Kurd protesters was carried out on 11 June 2010 at the ERU headquarters. Upon arrival at the headquarters registration took place and the status of each person was then examined using computers which had been specially installed the day before. According to the Government, this procedure revealed that seventy-six adults, along with their thirty children, were staying in the Republic unlawfully after having had their asylum applications rejected or their files closed. In this connection, the Court observes that it is clear from the information before it that their asylum applications had been dealt with on an individual basis over a period of more than five years. For those in respect of which the asylum procedure had been completed, the asylum applications had either been dismissed after an examination of their personal circumstances and any evidence they had provided or the files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals individually examined and dismissed. Separate letters had been sent out by the asylum authorities to the individuals concerned, informing them of the relevant decisions.", "253. Deportation and detention orders had already been issued in respect of some of the persons concerned. Orders against the remainder were issued on 11 June 2010. The authorities had carried out a background check with regard to each person before issuing the orders and separate deportation and detention orders were issued in respect of each person. Individual letters were also prepared by the Civil Registry and Migration Department informing those detained of the authorities ’ decision to detain and deport them.", "254. It is clear from the above that all those concerned did have an individual examination of their personal circumstances. As a result of this examination some of the persons arrested were allowed to return home as their immigration status was found to be in order and thus their presence on Cypriot territory was lawful. In these circumstances, the fact that all the persons concerned were taken together to the ERU headquarters and that the authorities decided to deport them in groups did not render their deportation a collective measure within the meaning attributed to that term by the Court ’ s case-law. Similarly, the fact that the deportation orders and the corresponding letters were couched in formulaic and, therefore, identical terms and did not specifically refer to the earlier decisions regarding the asylum procedure is not itself indicative of a collective expulsion. What is important is that every case was looked at individually and decided on its own particular facts (see Andric, cited above ). Although not expressly stated in the deportation orders and letters, the decision to deport was based on the conclusion that the person concerned was an illegal immigrant following the rejection of his or her asylum claim or the closure of the asylum file. Although a mistake was made in relation to the status of some of the persons concerned, including that of the applicant (see paragraphs 58 and 134 above) this, while unfortunate, cannot be taken as showing that there was a collective expulsion.", "255. In view of the foregoing, the Court is not persuaded that the measure taken by the authorities reveals the appearance of a collective expulsion within the meaning Article 4 of Protocol No. 4. There has therefore not been a violation of this provision.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "256. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "257. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.", "258. The Government contested this claim in so far as it concerned Articles 2 and 3 of the Convention as the applicant had not been deported. They also considered that the claim was excessive.", "259. Having regard to the nature of the violations found in the present case and the relevant case-law, the Court, ruling on an equitable basis as required under Article 41, awards the amount claimed by the applicant under this head in full.", "B. Costs and expenses", "260. The applicant also claimed EUR 1,700 plus VAT for costs and expenses incurred before the Court, less the sum granted as legal aid by the Council of Europe. In this respect he submitted that this was the amount agreed upon with his representative and it represented the sum normally awarded for costs by the Supreme Court in successful recourse proceedings.", "261. The Government contested the applicant ’ s claim and maintained that it was excessive.", "262. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant has failed to provide any supporting documents – such as itemised bills or invoices – substantiating his claim (Rule 60 §§ 1 and 2 of the Rules of Court). The Court accordingly makes no award under this head.", "C. Default interest", "263. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant, who is of Kurdish origin, was born in 1969 in north ‑ west Syria and lives in Nicosia.", "A. The applicant ’ s asylum claim and all relevant proceedings", "10. The applicant left Syria on 21 May 2005 and, after travelling to Turkey and then to the “Turkish Republic of Northern Cyprus” (“TRNC”), he entered Cyprus unlawfully.", "11. He applied for asylum on 12 September 2005 and an interview was held on 21 June 2006 with the Asylum Service.", "12. His application was dismissed by the Asylum Service on 21 July 2006 on the ground that the applicant did not fulfil the requirements of the Refugee Law of 2000-2005 [1], namely, he had not shown a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service noted that there had been discrepancies in his account of the facts which undermined his credibility. In particular, there had been significant contradictions regarding his origins. It was also observed that the applicant had not been able to reply satisfactorily and with precision to certain questions or to give the information required in a persuasive manner. In conclusion, the Asylum Service found that the asylum application had not been substantiated.", "13. On 1 August 2006 the applicant lodged an appeal with the Reviewing Authority for Refugees (hereafter “the Reviewing Authority”) against the Asylum Service ’ s decision. The appeal was dismissed on 1 February 2008.", "14. The Reviewing Authority upheld the decision of the Asylum Service. In its decision it observed that the applicant ’ s claims had not been credible and had been vague and unsubstantiated. The Reviewing Authority noted, inter alia, that although the applicant had stated in his interview with the Asylum Service that he had been arrested and detained for three days by the Syrian military security forces, that had been in 1992, thirteen years before he decided to leave the country. With the exception of this incident, he had confirmed that he had never been harassed by the Syrian authorities and had never been persecuted. Moreover, although the applicant claimed that he had stated in his interview with the Asylum Service that he had been subjected to electric shock treatment and the “wheel treatment” whilst in detention in Syria, it transpired from the minutes of that interview that he had in fact stated that the electric cables had not functioned and had not mentioned that the wheel had been used to torture him. The Asylum Service had therefore not considered it necessary to refer him for a medical examination. The Reviewing Authority also observed that the applicant had merely claimed that he had left Syria on account of the increased pressure on the Kurdish population in that country following the events in Qamishli in 2004 and his fear of being arrested in the future, and because of his political activities as a member of the Yekiti Party. His allegations, however, had been general and vague. Further, his written asylum application had been based on other grounds. In particular, in his application the applicant had stated that he had come to Cyprus in search of work and better living conditions.", "15. Lastly, the Reviewing Authority pointed out that the applicant had been able to obtain a passport lawfully and to leave Syria. As regards the applicant ’ s claims concerning his involvement with the Yekiti Party in Syria, it pointed out that the applicant ’ s replies to questions put to him about the party were too general and vague.", "16. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution and that if he returned to Syria his life would be in danger or he would be imprisoned.", "17. On 1 September 2008, following a request by the Cyprus-Kurdish Friendship Association to the Minister of the Interior on 22 July 2008, the applicant ’ s file was reopened by the Asylum Service in order to examine new information put forward by the applicant, mainly concerning his activities as the head of the Yekiti Party in Cyprus. The applicant was again interviewed by the Asylum Service on 16 February 2009.", "18. According to the Government, on 8 June 2010 an officer of the Asylum Service expressed the opinion that the information submitted by the applicant could not be considered as new evidence forming the basis of a new claim. The Government submitted an internal note to this effect.", "19. The applicant was arrested on 11 June 2010 and deportation and detention orders were issued against him on the same day (see paragraph 41 below).", "20. On 7 July 2010 the Asylum Service sent the applicant ’ s file to the Reviewing Authority following an opinion given by the Attorney-General that the relevant body which should examine the new evidence put forward by the applicant was the Reviewing Authority and not the Asylum Service.", "21. On 20 August 2010 the Minister of the Interior cancelled the deportation and detention orders of 11 June 201 0 and issued new ones against the applicant on other grounds (see paragraph 4 8 below).", "22. On 30 September 2010 the Reviewing Authority informed the applicant that the information submitted before it could not alter in any manner its initial decision not to recognise him as a refugee within the meaning of Articles 3 and 19 of the Refugee Law of 2000-2009 [2]. The applicant was served with the relevant letter on 6 October 2010. On the copy of the letter provided by the Government it is stated that the applicant was served with the letter on 6 October 2010 but refused to sign for it, requesting instead to see his lawyer.", "23. On 8 October 2010 the applicant brought a “ recourse ” (judicial review proceedings) before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Reviewing Authority of 30 September 2010.", "24. Following advice from the Attorney-General, the Reviewing Authority decided to re-open the applicant ’ s file in order to consider the content of his second interview at the Asylum Service on 16 February 2009 (see paragraph 17 above).", "25. The applicant was informed by letter dated 8 April 2011 that the Reviewing Authority had decided to withdraw its previous decision (see paragraph 22 above) and to reopen and re-examine his claim taking into consideration the content of his second interview with the Asylum Service.", "26. The applicant was called on by the Reviewing Authority to give another interview as an examination of the minutes of the applicant ’ s interview at the Asylum Service showed that it had been inadequate. The applicant was interviewed by the Reviewing Authority on 26 April 2011.", "27. On 29 April 2011 the Reviewing Authority decided to recognise the applicant as a refugee pursuant to the Refugee Law of 2000-2009 and the 1951 Geneva Convention relating to the Status of Refugees ( hereafter “the 1951 Geneva Convention”). The relevant excerpt of the decision reads as follows:", "“During the interview the applicant was asked about his activities in Cyprus and in particular about his membership of the Cypriot-Kurdish Friendship Association as well as his activities in the Yekiti opposition Party in Cyprus. From his interview it was ascertained that the applicant is credible in so far as his feelings for the rights of the Kurds in Syria are concerned. Consequently, the applicant started to get involved in political matters and to publicly express his opinion about the bad state of affairs in Syria. In particular, the applicant has an active role in the Yekiti Party in Cyprus as he is its founder and organises and coordinates his compatriots in anti-regime demonstrations and demonstrations for the rights of Kurds.", "Among the documents the applicant provided the Asylum Service with, there were photographs which show him organising, coordinating and leading the demonstrations that took place in the Republic of Cyprus. Consequently, his name has been connected with anti-regime demonstrations and with a negative stance towards the existing government of Syria. In addition, as an activist, the applicant is considered to be someone who causes problems for the Syrian authorities.", "Following his interview on 26 April 2011, the applicant provided the Reviewing Authority with additional documents. These are:", "1) Documents from the Kurdish Organisation for Human Rights in Austria which refer to the activity of the applicant in Cyprus and to photographs of him which were published in Cypriot newspapers and which have come to the attention of the Syrian authorities.", "2) The organigram of the Yekiti Party in Cyprus, which shows that the applicant is the head of the party.", "Lastly, following an inquiry, it was ascertained that the applicant had spoken about the problems faced by Kurds in the Republic and in Syria to local newspapers with pan -Cyprian circulation. More specifically, speaking as the representative of the Kurdish Yekiti Party in Cyprus the applicant had stated that Kurds did not have rights in Syria, as one of these rights was to speak one ’ s own language, something which is prohibited [for Kurds] in Syria. In addition, the applicant expressed fears that upon his return he would be arrested as [the authorities] knew him.", "The applicant has proved in a convincing manner that his fear of persecution and danger to his life in the event of his return to Syria is objectively credible. He is already stigmatised by the authorities of his country and according to the COI (country of origin information) a well-founded fear of persecution by the authorities in his country because of his political opposition activity has been substantiated. Upon examination it was ascertained that none of the exclusion clauses apply to the applicant ’ s case and, as a result, he should be granted refugee status as provided for in Article 3 of the Refugee Law.", "In view of all the above, it is evident that the real circumstances of the present application, [fulfil] the necessary conditions for the granting of refugee status provided for in section 3 of the Refugee Law 2000-2009 and the 1951 Geneva Convention.", "The applicant has succeeded in showing a well-founded fear of persecution on the basis of political opinions and should therefore be granted refugee status.", "On the basis of the above, it is decided that [the applicant] be granted refugee status.”", "28. Following the above decision, on 6 June 2011 the applicant withdrew his recourse with the Supreme Court (see paragraph 23 above).", "B. The applicant ’ s arrest and detention with a view to deportation", "29. On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia, near the Representation of the European Commission, the Ministry of Labour and Social Insurance and the Government Printing Office. They were protesting against the restrictive policies of the Cypriot Asylum Service in granting international protection. About 150 Kurds from Syria, including the applicant, remained in the area around the clock, having set up about eighty tents on the pavement. According to the Government, the encampment conditions were unsanitary and protesters were obstructing road and pedestrian traffic. The encampment had become a hazard to public health and created a public nuisance. The protesters performed their daily chores on the pavement, including cooking and washing in unsanitary conditions. The sewage pits had overflown, causing a nuisance and offensive odours. The public lavatories were dirty and the rubbish bins of the Government buildings were being used and, as a result, were continuously overflowing. Furthermore, the protesters were unlawfully obtaining electricity from the Printing Office. Members of the public who lived or worked in the area had complained to the authorities. The Government submitted that efforts had been made by the authorities to persuade the protesters to leave, but to no avail. As a result, the authorities had decided to take action to remove the protesters from the area.", "30. On 28 May 2010 instructions were given by the Minister of the Interior to proceed with the deportation of Syrian-Kurdish failed asylum seekers in the normal way.", "31. On 31 May 2010 the Minister requested the Chief of Police, among others, to take action in order to implement his instructions. Further, he endorsed suggestions made by the competent authorities that deportation and detention orders be issued against Syrian- Kurdish failed asylum seekers who had passports and did not have Ajanib or Maktoumeen status and that the police execute the orders starting with the ones issued against the leaders of the protesters. The police were also directed to take into account the policy guidelines and to use discreet methods of arrest.", "32. According to the Government, letters were sent by the Civil Registry and Migration Department to a number of failed Syrian- Kurdish asylum - seekers informing them that they had to make arrangements to leave Cyprus in view of their asylum applications being turned down. The Government submitted copies of thirty such letters. In thirteen cases the letters were dated 1 June 2010 (in some the asylum decisions having been taken as far back as 2007) and in one case 9 June 2010 (the asylum decision procedure having been completed at the end of 2009). Two other letters were dated 16 June 2010 (the asylum procedures having been completed in early 2008) and 28 June 2010 (the asylum procedures having been completed in March 2010). Further, one letter was dated 5 February 2011 in a case where the asylum procedure had been completed on 22 April 2010 and the person in question had voluntarily agreed and did return to Syria on 24 September 2010.", "33. From documents submitted by the Government it appears that from 31 May until 7 June 2010 the authorities kept the area under surveillance and kept a record of the protesters ’ daily activities and of all comings and goings. In the relevant records it is noted that invariably, between 1.30 a.m. and 5. 30 a.m., things were, in general, quiet, and everyone was sleeping apart from those keeping guard. During the above-mentioned period a large-scale operation was organised by the Police Emergency Response Unit, “ERU” (“ ΜΜΑΔ ”), and a number of other authorities, including the Police Aliens and Immigration Unit, for the removal of the protesters and their transfer to the ERU headquarters for the purpose of ascertaining their status on a case-by-case basis.", "34. In the meantime, between 28 May 2010 and 2 June 2010 orders for the detention and deportation of forty-five failed asylum seekers were issued following background checks. Letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, containing a short paragraph with information as to the immigration status of each person. This information included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service, the date of dismissal of the appeal by the Reviewing Authority, where lodged, and the date some of those concerned had been included on the authorities ’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). The letters recommended the issuance of deportation and detention orders. The Government submitted copies of two such letters with information concerning thirteen people.", "35. On 2 June 2010, letters were also prepared in English by the Civil Registry and Migration Department informing those concerned of the decision to detain and deport them. The Government submitted that, at the time, the authorities did not know whether those individuals were among the protesters.", "36. The removal operation was carried out on 11 June 2010, between approximately 3 a.m. and 5 a.m. with the participation of about 250 officers from the Police Aliens and Immigration Unit, the ERU, the Nicosia District Police Division, the Traffic Division, the Fire Service and the Office for Combating Discrimination of the Cyprus Police Headquarters. The protesters, including the applicant, were led to buses, apparently without any reaction or resistance on their part. At 3.22 a.m. the mini buses carrying the male protesters left. The women, children and babies followed at 3.35 a.m. A total of 149 people were located at the place of protest and were transferred to the ERU headquarters: eighty-seven men, twenty-two women and forty children. Upon arrival, registration took place and the status of each person was examined using computers which had been specially installed the day before. The Government submitted that during this period the protesters had not been handcuffed or put in cells but had been assembled in rooms and given food and drink. It appears from the documents submitted by the Government that by 6.40 a.m. the identification of approximately half of the group had been completed and that the whole operation had ended by 4.30 p.m.", "37. It was ascertained that seventy-six of the adults, along with their thirty children, were in the Republic unlawfully. Their asylum applications had either been dismissed or their files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals dismissed. Some final decisions dated back to 2006. A number of people had also been included on the authorities ’ “ stop list ”. Deportation orders had already been issued for twenty-three of them (see paragraph 34 above).", "38. The authorities deported twenty-two people on the same day at around 6.30 p.m. (nineteen adults and three children ). Forty-four people (forty-two men and two women), including the applicant, were charged with the criminal offence of unlawful stay in the Republic under section 19(2) of the Aliens and Immigration Law (see paragraph 6 5 below). They were arrested and transferred to various detention centres in Cyprus. The applicant was placed in the immigration detention facilities in the Nicosia Central Prisons ( Block 10). All those who were found to be legally resident in the Republic returned to their homes. Further, on humanitarian grounds, thirteen women whose husbands were detained pending deportation and who had a total of twenty-seven children between them were not arrested themselves.", "39. According to the Government the applicant and his co-detainees were informed orally that they had been arrested and detained on the basis that they had been staying in the Republic unlawfully and were thus “ prohibited immigrants” (see § 62 below). They were also informed of their rights pursuant to the Rights of Persons Arrested and Detained Law 2005 (Law no. 163(I)/of 2005) (see paragraph 9 3 below) and, in particular, of their right to contact by phone, in person and in private, a lawyer of their own choice. The applicant submitted that he had not been informed of the reasons for his arrest and detention on that date.", "40. On the same day letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, recommending the issuance of deportation and detention orders. The letters contained a short paragraph in respect of each person with information as to his or her immigration status. This included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service and the date of dismissal of the appeal by the Reviewing Authority where lodged. Some letters also referred to the date the asylum application had been lodged and the date some of the individuals concerned had been included on the authorities ’ “ stop list ”. The Government submitted copies of letters concerning thirty-seven people [3].", "41. Deportation and detention orders were also issued in Greek on the same day in respect of the remaining fifty-three people detained (see paragraph 37 above), including the applicant, pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “ prohibited immigrants ” within the meaning of section 6(1)( k ) of that Law. These were couched in identical terms. In respect of two people the orders also mentioned sections 6(1)(i) and 6 (1)(l) of the Law.", "42. Subsequently, on the same date, letters were prepared in English by the Civil Registry and Migration Department informing all the detainees individually, including the applicant, of the decision to detain and deport them. The Government submitted thirty-seven copies of these letters. The text of the letter addressed to the applicant reads as follows:", "“You are hereby informed that you are an illegal immigrant by virtue of paragraph (k). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because you of illegal entry [ sic ]", "Consequently your temporary residence permit/migration permit has been revoked and I have proceeded with the issue of deportation orders and detention orders dated 11th June 2010 against you.", "You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.”", "43. The text of the remaining copies of the letters submitted by the Government was virtually identical, a standard template having been used. The only differences were that some letters referred to illegal stay rather than illegal entry and that the letters issued earlier referred to 2 June 2010 as the date of issuance of the deportation and detention orders (see paragraph 34 above).", "44. On the copy of the letter to the applicant provided by the Government, there is a handwritten signed note by a police officer stating that the letter was served on the applicant on 18 June 2010 but that he refused to receive and sign for it. The other letters had a similar note or stamp on them with the same date, stating that the person concerned had refused to sign for and/or receive the letter. In a letter dated 7 September 2010 the Government stated that the applicant had been served on 18 June 2010. In their subsequent observations the Government submitted, however, that this was the second attempt to serve the letters, the first attempt having been made on 11 June 2010, that is, the day of the arrest.", "45. The applicant submitted that he had never refused to receive any kind of information in writing. He claimed that it had only been on 14 June 2010 that he had been informed orally that he would be deported to Syria on the same day but that the deportation and detention orders were not served on him on that date or subsequently. He submitted that he had eventually been informed by his lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court, that deportation and detention orders had been issued against him on 11 June 2010.", "46. From the documents submitted by the Government, it appears that at least another fourteen of the detainees were to be deported on 14 June 2010 [4].", "47. In a letter dated 12 October 2010 the Government informed the Court that on 17 August 2010 the Minister of the Interior had declared the applicant an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law on the basis of information that he had been involved in activities relating to receiving money from prospective Kurdish immigrants in exchange for “securing” residence and work permits in Cyprus.", "48. On 20 August 2010 the Minister of Interior issued deportation and detention orders based on the above-mentioned provision. The previous orders of 11 June 2010 were cancelled. The applicant submitted that he had not been notified of the new orders. The Government did not comment on the matter and did not submit a copy of a letter notifying the applicant of these orders.", "49. The applicant was released from detention on 3 May 2011 following the decision to grant him refugee status (see paragraph 27 above).", "C. Habeas corpus proceedings", "50. On 24 January 2011 the applicant filed a habeas corpus application claiming that his continued detention from 11 June 2010 had violated Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Members states for returning illegally staying third- country nationals. The applicant, relying on the Court ’ s judgment in Chahal v. the United Kingdom, 15 November 1996, ( Reports of Judgments and Decisions 1996 ‑ V ) and the Commission ’ s report in Samie Ali v. Switzerland (no. 24881/94, Commission ’ s report of 26 February 1997) also claimed that his detention had breached Article 11 ( 2 ) of the Constitution and Article 5 § 1 of the Convention.", "51. On 23 February 2011 the Supreme Court dismissed the application. With regard to the preliminary issues raised, the Supreme Court first of all held that it had the competence to examine the application as it was called upon to examine the lawfulness of the applicant ’ s protracted detention and not the lawfulness of the deportation and detention orders. The court could, within the context of a habeas corpus application, examine the conformity of the applicant ’ s detention with Article 15 (3) of the Directive and Article 11 (2) (f) of the Constitution. The applicant was not estopped from bringing a habeas corpus application due to the fact that he had not challenged the deportation and detention orders issued against him. Even if the lawfulness of the detention was assumed, detention for the purpose of deportation could not be indefinite and the detainee left without the right to seek his release. The Supreme Court also rejected the argument that the applicant was estopped from bringing the application because his continued detention had been brought about by his own actions, that is, by his application to the Strasbourg Court for an interim measure suspending his deportation.", "52. The Supreme Court then examined the substance of the application. It noted that the Directive had direct effect in the domestic law, as the period for transposition had expired and the Directive had not been transposed. It could therefore be relied on in the proceedings. However, it went on to hold that the six- month period provided for in the Directive had not yet started to run. The applicant had been arrested on 11 June 2010 with a view to his deportation but had not been deported by the Government in view of the application by the Court on 12 June 2010 of Rule 39 and the issuing of an interim measure suspending his deportation. Consequently, the authorities had not been able to deport him. As the applicant himself had taken steps to suspend his deportation, the ensuing time could not be held against the Government and could not be taken into account for the purposes of Article 15 (5) and (6) of the Directive. The six-month period would start to run from the moment that the interim measure had been lifted. From that moment onwards the Government had been under an obligation in accordance with Article 15 (1) of the Directive to proceed with the applicant ’ s deportation with due diligence. The situation would have been different if the deportation had not been effected owing to delays attributable to the authorities.", "53. In so far as the applicant ’ s complaints under Article 11 (2) of the Constitution and Article 5 § 1 of the Convention were concerned, the Supreme Court distinguished the applicant ’ s situation from those in the cases he relied on and in which responsibility for the protracted detention lay with the authorities. Further, it held that it had not been shown that the continued detention of the applicant had been arbitrary, abusive and contrary to the Court ’ s case- law (see paragraph 50 above).", "54. The applicant lodged an appeal with the Supreme Court (appellate jurisdiction) on 17 March 2011.", "55. The appeal was dismissed on 15 October 2012. The Supreme Court held that as the applicant had, in the meantime, been released, the application was without object.", "D. Background information concerning the applicant ’ s request under Rule 39 of the Rules of Court", "56. On Saturday, 12 June 2010, the applicant, along with forty-three other persons of Kurdish origin, submitted a Rule 39 request [5] in order to prevent their imminent deportation to Syria.", "57. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had had the opportunity to receive and examine all the documents pertaining to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation.", "58. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to maintain the interim measure in respect of five applications, including the present one. Rule 39 was lifted with regard to the thirty-nine remaining cases. In seven of these cases the deportation and detention orders were annulled by the authorities. It appears that in at least three out of the seven cases proceedings were still pending with the Asylum Service or the Reviewing Authority. Those applicants subsequently withdrew the applications they had lodged with the Court.", "59. By a letter dated 11 May 2011, the applicant ’ s representative informed the Court that the applicant, by a decision dated 26 April 201 1, had been recognised as a refugee under the 1951 Geneva Convention and had been released on 3 May 2011.", "60. On the basis of the above information, on 23 May 2011 the President of the First Section decided to lift the measure indicated under Rule 39.", "III. INTERNATIONAL TEXTS AND DOCUMENTS", "A. Relevant Council of Europe documents", "1. Guidelines of the Committee of Ministers of the Council of Europe", "94. Guideline X of the Guidelines on human rights protection in the context of accelerated asylum procedures adopted by the Committee of Ministers on 1 July 2009 at the 1062nd meeting of the Ministers ’ Deputies provides for the right to effective and suspensive remedies. It reads as follows:", "“ 1. Asylum seekers whose applications are rejected shall have the right to have the decision reviewed by a means constituting an effective remedy.", "2. Where asylum seekers submit an arguable claim that the execution of a removal decision could lead to a real risk of persecution or the death penalty, torture or inhuman or degrading treatment or punishment, the remedy against the removal decision shall have suspensive effect.”", "2. The Commissioner for Human Rights", "95. The Commissioner for Human Rights issued a recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19). This recommendation of 19 September 2001 included the following paragraph:", "“11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.”", "3. ECRI reports on Cyprus", "96. The European Commission against Racism and Intolerance (ECRI) published its third report on Cyprus on 16 December 2005. The relevant parts read as follows:", "“ 56. ECRI is also concerned that deportations of asylum seekers have sometimes been carried out in a way that jeopardises respect of the principle of non - refoulement. It has been reported to ECRI that deportations are effectively carried out before the individual has been given a chance to even formally apply for asylum. However, deportations have also been carried out after an asylum application has been filed and before the completion of its examination. This has reportedly included cases where the files were arbitrarily closed or the asylum seeker was forced to withdraw the application, but also cases where the asylum claim was still pending in the first or second instance. Furthermore, since filing an appeal for judicial review before the Supreme Court does not have a suspensive effect on the deportation order, deportations of asylum seekers who file such an appeal are reportedly carried out as a rule before its examination is completed.", "...", "61. ECRI urges the Cypriot authorities to ensure that the asylum seekers ’ right to protection from refoulement is thoroughly respected. In this respect, it recommends that the Cypriot authorities ensure that deportations are not carried out before asylum procedures at all instances are completed .”", "97. In its subsequent periodic report (fourth monitoring cycle) on Cyprus, published on 31 May 2011, ECRI stated as follows:", "“ Asylum seekers and refugees", "172. In its third report, ECRI made a large number of recommendations related to asylum seekers, namely that the authorities (i) ensure that adequate human and financial resources are available to deal effectively and within a reasonable time with all asylum applications; (ii) ensure that asylum seekers only be detained when it is absolutely necessary and that measures alternative to detention be used in all other cases; (iii) take urgent measures to ensure that the right of persons to apply for asylum is thoroughly respected; (iv) ensure that clear information on the rights of asylum seekers and the procedures to apply for asylum is available in a language that asylum seekers understand at police stations and at all places where they may apply for asylum; (v) increase training of the police in human rights, including asylum and non ‑ discrimination issues; (vi) ensure that any alleged instance of ill treatment of asylum seekers by police officers is thoroughly and rapidly investigated and that the persons found responsible are duly punished; (vii) take measures to improve asylum seekers ’ access to free or inexpensive legal aid and representation; (viii) take urgent measures to ensure that asylum seekers can access in practice all rights to which they are entitled by law, including in such areas as healthcare provision, welfare services, education and employment; (ix) ensure that asylum seekers are not discriminated against in exercising the right to employment granted to them by law, underlining that any measures taken by the Cypriot authorities with respect to asylum seekers ’ access to employment and welfare benefits should not push these persons towards illegality; (x) ensure that the asylum seekers ’ right to protection from refoulement is thoroughly respected and that deportations are not carried out before asylum procedures at all instances are completed; (xi) refrain from adopting deterrent policies in the field of asylum and from presenting any asylum policies to the public as deterrent policies.", "173. ECRI notes that relatively little has changed in respect of the numerous concerns raised in its third report. Some of the above issues have already been addressed in other parts of this report. Below are some additional observations relating to asylum seekers.", "...", "183. As for legal aid, this is not available in administrative proceedings. ECRI notes that the first two instances in the asylum procedure, before the Asylum Service and the Refugee Reviewing Authority, are both administrative proceedings. The authorities have stated that according to the Refugee Law, an applicant has the right to have a lawyer or legal advisor at his/her own cost during all stages of the asylum procedure and that asylum seekers have access to free legal aid through the programmes funded by the European Refugee Fund and the Republic of Cyprus. In reality, however, few asylum seekers have the financial resources to engage private lawyers and there are only two NGOs functioning in the country with an interest in assisting asylum seekers.", "...", "185. A person whose asylum application is rejected at second instance may appeal to the Supreme Court for judicial review. The recent Law 132(I)/2009 amended the Legal Aid Law of 2002, in accordance with the EU Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, to extend eligibility for free legal aid, including advice, help and representation, to asylum seekers and refugees in appeals before the Supreme Court. ECRI notes that applications for legal aid are subject to a means and merits test: asylum seekers must demonstrate that they lack sufficient financial resources and that the appeal is likely to succeed.", "186. International and civil society organisations have reported major difficulties in the application of the new legislation. Firstly, no information has been provided to asylum seekers of the new legal aid possibility. Secondly, since most asylum seekers do not have sufficient command of the Greek language, it is almost impossible for them to formulate a successful legal aid application, particularly as regards the merits test. Thirdly, it is reported that as soon as a negative second instance decision is taken, a deportation order is faxed to the police and rejected asylum seekers are frequently arrested before they even receive the letter informing them of the negative decision of the Refugee Reviewing Authority or have a chance to appeal to the Supreme Court. Filing an appeal in any case does not have a suspensive effect on the deportation order. This raises questions concerning respect of the principle of non-refoulement. The authorities, however, have assured ECRI that the Asylum Service takes all necessary measures to ensure that the principle of non-refoulement is fully respected and that no deportation takes place before the examination of an asylum case is completed. Lastly, if legal aid is granted there is no list of lawyers specialising in asylum for asylum seekers to choose from.", "187. ECRI understands that only two asylum seekers have been granted legal aid since the adoption of the amendment in December 2009 and around 100 have represented themselves before the Supreme Court without legal aid. Moreover, very few decisions have been made by the Supreme Court to send a case back to the Refugee Reviewing Authority.", "188. ECRI recommends that the authorities ensure that asylum seekers have access to appropriate legal aid throughout the asylum application procedure and not just at the appeal stage.", "189. ECRI recommends that the authorities ensure that asylum seekers are fully aware of the availability of legal aid to challenge negative asylum decisions before the Supreme Court.", "195. As administrative decisions, detention and deportation can be appealed at the Supreme Court. However, as observed in ECRI ’ s third report, an appeal has no suspensive effect, unless an interim injunction is granted by the Supreme Court. ”", "B. Relevant European Union Law", "98. Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals stipulates that:", "“ 1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:", "(a) there is a risk of absconding or", "(b) the third-country national concerned avoids or hampers the preparation of return or the removal process.", "Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence", "2. Detention shall be ordered by administrative or judicial authorities.", "Detention shall be ordered in writing with reasons being given in fact and in law.", "When detention has been ordered by administrative authorities, Member States shall:", "(a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;", "(b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.”", "The third-country national concerned shall be released immediately if the detention is not lawful.", "3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.", "4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.", "5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months.", "6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to:", "(a) a lack of cooperation by the third-country national concerned, or", "(b) delays in obtaining the necessary documentation from third countries. ”", "99. Article 18 (2) of Council Directive 200 5 / 85 /EC of 1 December 200 5 on minimum standards on procedures in Member States for granting and withdrawing refugee status provides that where an applicant for asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review.", "C. Amnesty International reports", "1. Report concerning the detention of migrants and asylum-seekers in Cyprus", "100. In June 2012 Amnesty International published a report on the detention of migrants and asylum-seekers in Cyprus entitled “Punishment without a crime”.", "101. In the report Amnesty International, noted, inter alia, that it had been made aware of asylum-seekers whose claims had been rejected at the initial stage and at appeal level, and who had subsequently been apprehended and kept in detention pending deportation even though they were awaiting a decision by the Supreme Court on their challenges against the rejection of their asylum applications. This was because although an application to the Supreme Court did not automatically suspend the deportation process, an application to suspend the deportation, including as an interim measure, had to be lodged with the Supreme Court. The suspension was not granted automatically; an applicant had to establish flagrant illegality or irreparable damage. This therefore meant that in Cyprus asylum-seekers might be at risk of forcible return to a place where they were at serious risk of human rights violations (breaching the principle of non-refoulement ) before their claim was finally determined unless the Supreme Court agreed to suspend the deportation order or, in cases where the asylum -seekers had petitioned the Court, an interim measure had been granted.", "102. As regards the safeguards against unlawful detention, Amnesty International pointed out that it had documented several cases attesting to a failure by the police authorities to explain to immigration detainees the reasons for their detention, its possible length and the rights they had whilst in detention. Detainees and their lawyers had told Amnesty International that often they were not provided with the reasons and justification for detention. Usually, detainees were given a short letter simply referring to the legislative provisions under which their detention had been ordered and to the fact that they were being detained pending deportation. In some cases, deportation and detention orders had been handed to the individuals concerned several months into their detention. The report noted that such shortcomings were particularly common in relation to detained asylum-seekers. A large number interviewed by Amnesty International, particularly those whose applications were pending, did not appear to know how long they would be detained, even when they were aware of the grounds for their detention.", "103. Furthermore, referring to the remedies available in Cyprus against detention, the report observed that according to lawyers, the average length of a recourse under Article 146 of the Constitution was one and a half years, whereas in a habeas corpus application it was one or two months. In the case of an appeal against an unsuccessful application, the length of the appeal proceedings in both cases was about five years on average. In addition, according to domestic legislation, the Minister of Interior reviewed immigration detention orders either on his or her own initiative every two months, or at a reasonable time following an application by the detainee. The Minister was also solely responsible for any decision to prolong detention for an additional maximum period of twelve months. However, the lack of automatic judicial review of the decision to detain was a cause of major concern. Referring to Article 5 § 4 of the Convention, Article 18 (2) of the Asylum Procedures Directive and Article 15 (2) of the EU Returns Directive the report concluded that because of the lack of an automatic judicial review of the administrative orders to detain, especially in cases of prolonged detention, it was clear that the procedural safeguards in Cypriot law fell short of international and regional standards.", "104. The report concluded that the routine detention of irregular migrants and of a large number of asylum-seekers was in clear violation of Cyprus ’ human rights obligations. It considered that this pattern of abuse was partly due to inadequate legislation, but more often it was down to the practice of the authorities. Lastly, the report set out a number of recommendations to the Cypriot authorities. These include, in so far as relevant:", "- Ending the detention of asylum-seekers for immigration purposes in law and in practice, in line with international human rights standards which require that such detention is only used in exceptional circumstances;", "- Ensuring that the recourse to the Supreme Court regarding a decision rejecting an asylum application at the initial stage or at appeal level automatically suspends the implementation of a deportation order;", "- Ensuring that the decision to detain is automatically reviewed by a judicial body periodically on the basis of clear legislative criteria;", "- Ensuring that migrants and asylum-seekers deprived of their liberty are promptly informed in a language they understand, in writing, of the reasons for their detention, of the available appeal mechanisms and of the regulations of the detention facility. The decision to detain must entail reasoned grounds with reference to law and fact;", "- Ensuring that detention was always for the shortest possible time;", "- Ensuring that the maximum duration for detention provided in law is reasonable;", "- Ensuring that migrants and asylum-seekers were granted effective access to remedies against administrative deportation and detention orders, including through the assistance of free legal aid to challenge detention and/or deportation and adequate interpretation where necessary;", "- Ensuring that deportation procedures contain adequate procedural safeguards, including the ability to challenge individually the decision to deport, access to competent interpretation services and legal counsel, and access to appeal before a judge.", "2. Annual report of 2011", "105. The chapter on Cyprus in the Amnesty International 2011 annual report refers, inter alia, to the events of June 2010. In so far as relevant, it states as follows:", "“ In late May, around 250 Syrian Kurd protesters camped outside the “EU House” in Nicosia to protest against the authorities ’ rejection of their asylum claims and to protest about residence rights. On 11 June, 143 of the protesters, including children, were reportedly arrested during an early morning police operation. Several of them were released immediately but, according to reports, 23 were forcibly removed to Syria that day. On 14 June, the European Court of Human Rights issued interim measures requesting that Cyprus suspend the removal of the 44 who were still in detention. Seven of these were then released, either because they had pending asylum applications or were stateless. According to reports, of those remaining, 32 were forcibly removed to Syria after the European Court lifted the interim measures in their cases in September. The remaining five continued to be detained in Cyprus. Seventeen of those forcibly removed were reportedly arrested and detained upon or after their arrival in Syria.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Entry, residence and deportation of aliens", "1. The Aliens and Immigration Law and the Refugee Law", "61. The entry, residence and deportation of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended).", "62. Under section 6(1) of the Law a person is not permitted to enter the Republic if he is a “prohibited immigrant”. This category includes any person who enters or resides in the country contrary to any prohibition, condition, restriction or limitation contained in the Law or in any permit granted or issued under the Law (section 6(1)(k )), any person who was deported from the Republic either on the basis of the Law or on the basis of any other legislation in force at the time of his or her deportation (section 6(1)(i)) and any alien who wishes to enter the Republic as an immigrant, but does not have in his or her possession an immigration permit granted in accordance with the relevant regulations (section 6(1)( l )). Furthermore, a person can be considered to be a “prohibited immigrant” on, inter alia, grounds of public order, legal order or public morals or if he or she constitutes a threat to peace (section 6(1)(g )).", "63. Under the Law the deportation and, in the meantime, the detention of any alien who is considered “ a prohibited immigrant” can be ordered by the Chief Immigration Officer, who is the Minister of the Interior (section 14). Section 14(6) provides that a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for this decision, unless this is not desirable on public - security grounds, and has the right to be represented before the competent authorities and to request the services of an interpreter. In addition, Regulation 19 of the Aliens and Immigration Regulations of 1972 (as amended ) provides that when the Immigration Officer decides that a person is a prohibited immigrant, written notice to that effect must be served on that person in accordance with the second schedule of the Regulations.", "64. In the case of Uros Stojicic v. the Republic of Cyprus, through the Immigration Officer (judgment of 27 June 2003, case no. 1018/2002) the Supreme Court pointed out that, due to its seriousness, a deportation order was subject to restrictions and conditions of a substantive and formal nature, which aimed to safeguard the fundamental rights of persons against whom a deportation procedure was being carried out to information and a hearing. These safeguards are provided for in the domestic law, in particular, section 14(6) of the Aliens and Immigration Law and Regulation 19 of the Aliens and Immigration Regulations, as well as in Article 1 of Protocol No. 7 to the Convention. The Supreme Court observed that Cypriot jurisprudence recognised the wide discretion of the Immigration Officer as an integral part of state sovereignty but at the same time imposed safety measures in order to prevent arbitrary acts by state organs and abuses which could lead to the infringement of fundamental and internationally safeguarded human rights.", "The exception provided for in section 14(6), which is grounded on reasons of public security, will apply where the authorities consider it undesirable to inform the person concerned of the reasons for the decision to detain and deport him. For example, in Kamran Sharajeel v. the Republic of Cyprus, through Minister of the Interior (judgment of 17 March 2006, case no. 725/2004, the Supreme Court accepted the application of the exception as it was obvious from the correspondence in the file that the case had been treated as urgent by the authorities and that the grounds for the deportation concerned national security. The applicant in that case had been arrested on the basis of information that he was reportedly involved with Al-Qaeda and was deported within three days of his arrest.", "65. Unauthorised entry and/or stay in Cyprus are criminal offences. Until November 2011, they were punishable by imprisonment or a fine (section 19(2)) of the Aliens and Immigration Law). Law 153(I)/2011, which entered into force in November 2011, removed the punishment of imprisonment but retained the criminal nature of the contraventions and their punishment with a fine (section 18). Such punishment is not applicable to asylum seekers. Furthermore, a person who has entered the Republic illegally will not be subject to punishment solely on the basis of his illegal entry or residence, provided that he appears without unjustified delay before the authorities and gives the reasons for his illegal entry or residence (Section 7(1) of the Refugee Law, Law 6 (I) of 2000, as amended).", "66. Further, section 19 A (2) of the Aliens and Immigration Law provides, inter alia, that a person who intentionally and with the aim of obtaining profit assists a third country national to enter or pass through the Republic in breach of the Aliens and Immigration Law, commits a criminal offence which is punishable, following conviction, with imprisonment of up to eight years or with a fine, or both.", "2. Challenging deportation and detention orders", "67. Deportation and detention orders can be challenged before the Supreme Court by way of administrative recourse under Article 146 ( 1 ) of the Constitution of the Republic of Cyprus. This provision provides as follows:", "“The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.”", "68. A recourse must be made within seventy-five days of the date when the decision or act was published or, if it was not published and in the case of an omission, when it came to the knowledge of the person making the recourse (Article 146 ( 3 ) ). Should the recourse succeed, the power of the Supreme Court is confined to declaring an act or decision null or void, or, in the case of an omission, that it ought not to have occurred, in that what had not been done should have been done (Article 146 (4)).", "The jurisdiction of the Supreme Court under Article 146 is limited to reviewing the legality of the act, decision or omission in question on the basis of the facts and circumstances existing at the time the act, decision or omission occurred. The Supreme Court will not go into the merits of the decision and substitute the decision of the administrative authority or organ concerned with its own decision; it will not decide the matter afresh. If the Supreme Court annuls the act or decision in question, the matter is automatically remitted to the appropriate administrative authority or organ for re-examination ( see the domestic case-law citations in Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, § 73, 21 July 2011 ).", "69. Article 146 (6) provides for compensation as follows:", "“Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant”.", "70. The Supreme Court has held that the lawfulness of deportation and detention orders can only be examined in the context of a recourse brought under Article 146 of the Constitution and not in the context of a habeas corpus application ( see, for example, the Supreme Court ’ s judgment of 30 December 2004 in Elena Bondar appeal no. 12166 against the refusal of an application for a writ of habeas corpus, (2004) 1 (C) CLR 2075 ).", "71. A recourse does not have automatic suspensive effect under domestic law. In order to suspend deportation an application must be made seeking a provisional order. The Supreme Court has the power to issue provisional orders, suspending the enforcement of the decision taken by the administrative authority, pending the hearing of the case on the merits. A provisional order is an exceptional discretionary measure and is decided on a case- by -case basis (rule 13 of the Supreme Constitutional Court Rules 1962). The Supreme Court will grant a provisional order if an applicant establishes that the contested decision is tainted by flagrant illegality or that he or she will suffer irreparable damage from its enforcement (see amongst a number of authorities, Stavros Loizides v. the Ministry of Foreign Affairs (1995) 3 C.L.R. 233; Elpida Krokidou and others v. the Republic, (1990) 3 C C.L.R. 1857; and Sydney Alfred Moyo & another v. the Republic (1988) 3 CLR 1203 ).", "72. Until recently, domestic law did not provide for legal aid in respect of a recourse under Article 146 of the Constitution against deportation and detention orders. In 2012 the Legal Aid Law (Law no. 165(I)/2002) was amended, enabling illegally staying third-country nationals to apply for legal aid (section 6C, Amending Law no. 8(I)/2012). However, legal aid is limited to first - instance proceedings and will be granted only if the recourse is deemed to have a reasonable chance of success (sections 6 C (2)(aa) and (bb)).", "B. Asylum", "73. The Cypriot Government assumed responsibility for assessing asylum claims from 1 January 2002. An Asylum Service was established for this purpose in the Migration Department of the Ministry of Interior. Prior to that, the UNHCR dealt with such claims.", "74. Asylum seekers can appeal against decisions by the Asylum Service to the Reviewing Authority, which was established by the Refugee Law (Law 6 (I) of 2000, as amended). Procedures before the Asylum Service and the Reviewing Authority are suspensive: asylum seekers have a right under section 8 of the Refugee Law to remain in the Republic pending the examination of their claim and, if lodged, their appeal. Although the authorities retain the power to issue deportation and detention orders against an applicant during this period, such orders can only be issued on grounds which are unrelated to the asylum application, for example, the commission of a criminal offence, and they are subject to the suspensive effect (see the Supreme Court ’ s judgment of 30 December 2004 in the case of Asad Mohammed Rahal v the Republic of Cyprus (2004) 3 CLR 741 ).", "75. The decision of the Reviewing Authority can be challenged before the Supreme Court by way of administrative recourse under Article 146 (1) of the Constitution (see paragraphs 6 7-70 above). According to section 8 of the Refugee Law, however, following the decision of the Reviewing Authority, an applicant has no longer the right to remain in the Republic. A recourse does not have automatic suspensive effect ( see paragraph 7 1 above).", "76. Finally, section 6B of the Legal Aid Law (Law no. 165(I)/2002 as amended by Amending Law 132(I)/2009), provides that asylum - seekers may apply for legal aid in respect of a recourse brought under Article 146 of the Constitution against decisions by the Asylum Service and the Reviewing Authority. As in the case of deportation and detention (see paragraph 72 above), legal aid will only be granted in respect of the first - instance proceedings (section 6 B (2)(aa)) and if there is a prospect of success (section 6B(2)(bb)).", "C. Cases relied on by the parties regarding “suspensiveness” and “speediness” in deportation and detention cases", "1. Cases relied on by the Government", "77. Recourses nos. 382/2011 ( Kazemyan Marvi Behjat v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ), 383/2011 ( Embrahimzadeh Poustchi Omid v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ) and 384/2011 ( Bagher Embrahim Zadeh v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ) against deportation and detention orders were lodged before the Supreme Court on 21 March 2011 by a couple and their son. An ex parte application for a provisional order was filed the next day. The hearing of the application took place on 20 April 2011. On that day the complainants agreed to an early hearing of the recourse and withdrew their application as part of an agreement with the Government to have their deportation suspended and have an early hearing of the main proceedings. The cases were then listed for a directions hearing to be held on 2 May 2001. The recourses were eventually withdrawn on 10 June 2011. They lasted two months and twenty days. The complainants were detained throughout this period, until their deportation on 17 July 2011.", "78. Recourse no. 601/11 ( Olha Voroniuk v. Minister of the Interior and Director of the Civil Registry and Migration Department ) against deportation and detention orders was lodged on 11 May 2011 along with an application for a provisional order. The application was heard on 1 June 2011 when it was withdrawn after an agreement was reached with the Government. The case was then listed for a clarifications hearing to be held on 29 June 2011. The complainant, however, withdrew the recourse on 28 June 2011 in order to return to her country. The proceedings lasted one month and seventeen days. The complainant was detained throughout this period, until her deportation on 8 July 2011.", "79. In recourse no. 439/2009 ( Sima Avani and Maral Mehrabi Pari v. the Republic of Cyprus – 1. Minister of the Interior and Director of the Civil Registry and Migration Department and 2. the Reviewing Authority for Refugees ) lodged on 16 April 2009, it appears that the complainants challenged both the Reviewing Authority ’ s decision and the deportation and detention orders. They also filed an application for a provisional order. Rule 39 was applied by the Court. On 16 April 2009 the Supreme Court granted the provisional order, suspending the complainants ’ deportation. It then gave judgment dismissing the recourse on 27 August 2009, upholding the asylum decision taken by the authorities. The proceedings lasted for four months and eleven days. The complainants were detained throughout this period. They were released on 1 September 2009 and were not detained during the appeal proceedings, which were concluded on 10 October 2011 (Revisional appeal no. 150/09).", "2. Cases relied on by the applicant", "80. In recourse no. 493/2010 ( Leonie Marlyse Yombia Ngassam v. the Republic of Cyprus - the General Director of the Ministry of the Interior and the Attorney-General of the Republic ) against deportation and detention orders, an application for a provisional order was filed on 21 April 2010. The application was withdrawn following an agreement with the Government. Judgment was given on 20 August 2010. The proceedings therefore lasted three months and twenty-nine days, for the duration of which the complainant remained in detention.", "81. In recourse no. 103/2012 ( Amr Mahmoud Youssef Mohammed Gaafar v. the Republic of Cyprus - Director of the Civil Registry and Migration Department and the Minister of the Interior ) the application for a provisional order was filed on 24 January 2012. It was subsequently withdrawn and the Supreme Court gave judgment on 23 July 2012. The proceedings lasted five months and twenty-nine days. The complainant was detained during this period.", "82. In recourse no. 1724/2011 ( Mustafa Haghilo v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General ) against deportation and detention orders, the application for a provisional order was filed on 28 December 2011. The application was subsequently withdrawn and judgment was given on 13 July 2012. The proceedings lasted six months and fifteen days. At the time of the submission of the applicant ’ s observations of 31 July 2012 the appeal proceedings were still pending and the complainant was still in detention.", "83. Recourse no. 1723/2011 ( Mohammad Khosh Soruor v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General ) against deportation and detention orders was lodged on 28 December 2011 along with an application for a provisional measure. The application was not withdrawn but was dismissed by the Supreme Court on 8 February 2012. At the time of the submission of the applicant ’ s observations of 31 July 2012 the main proceedings in this recourse were still pending and had up to that date lasted six months and twenty-two days. The complainant was still in detention.", "84. In recourse no. 1117/2010 ( Shahin Haisan Fawzy Mohammed v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General) the Supreme Court gave judgment on 23 December 2010, annulling deportation and detention orders issued against the complainant. Following this judgment the authorities issued new deportation and detention orders. A recourse challenging these orders along with an application for a provisional order to suspend deportation were filed on 30 December 2010 (recourse no. 1718/10; Shahin Haisan Fawzy Mohammed v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General). According to the minutes of the proceedings the authorities were notified of the application on 31 December 2010. On 4 January 2011, at the hearing of the application, however, the authorities informed the Court that the complainant had been deported on 2 January 2011. His representative withdrew the application but maintained the recourse. At the time, the complainant ’ s recourse against the Reviewing Authority ’ s decision was still pending before the Supreme Court (recourse no. 1409/2010).", "D. Detention pending deportation", "85. At the material time, Directive 2008 /115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals, “the EU Returns Directive”, had not been transposed into Cypriot domestic law. As the deadline for transposition expired on 24 December 2010 (see Article 20 of the Directive) the Directive had direct effect in domestic law and could therefore be relied on by an individual in court (see for example the Supreme Court judgments of 18 January 2011 in the case of Shanmukan Uthajenthiran, habeas corpus application no. 152/2010 and of 20 January 2011, and the case of Irfam Ahmad, habeas corpus application 5/2011).", "86. In accordance with Article 15 §§ 5 and 6 of the Directive, detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee represents a national security or public order risk, detention may be prolonged for a further twelve months, to a maximum of eighteen months (see paragraph 98 below). The Directive has been invoked before the Supreme Court in habeas corpus proceedings in which detainees challenged the lawfulness of their protracted detention for the purpose of deportation (see, for example, Supreme Court judgments of 12 March 2012 in the case of Yuxian Wing, habeas corpus application no. 13/2012; of 8 January 2011 in the case of Shanmukan Uthajenthiran, cited above; and of 22 December 2011 in the case of Mostafa Haghilo, habeas corpus application no. 133/2011).", "87. In November 2011, Law no. 153(I)/2011 introduced amendments to the Aliens and Immigration Law with the aim of transposing the “ EU Returns Directive ”. This Law expressly provides that habeas corpus applications before the Supreme Court challenging the lawfulness of detention with a view to deportation can be made on length grounds (for the previous situation, see Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011)).", "E. Relevant Constitutional provisions", "88. Part II of the Constitution contains provisions safeguarding fundamental human rights and liberties. Article 11 protects the right to liberty and security. It reads as follows, in so far as relevant:", "Article 11", "“1. Every person has the right to liberty and security of person.", "2. No person shall be deprived of his liberty save in the following cases when and as provided by law:", "...", "(f) the arrest or detention of a person to prevent him effecting an unauthorised entry into the territory of the Republic or of an alien against whom action is being taken with a view to deportation or extradition.", "3. Save when and as provided by law in case of a flagrant offence punishable with death or imprisonment, no person shall be arrested save under the authority of a reasoned judicial warrant issued according to the formalities prescribed by the law.", "4. Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing.", "5. The person arrested shall, as soon as is practicable after his arrest, and in any event not later than twenty-four hours after the arrest, be brought before a judge, if not earlier released.", "...", "7. Every person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.", "8. Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”.", "F. Other relevant domestic law", "1. The Police Law", "89. Section 24(2) of the Police Law 2004 (Law no. 73(I)/2004) concerns the general powers and duties of members of the police. It reads as follows:", "“ It is the duty of every member of the police readily to obey and execute all the orders and warrants which are lawfully issued to him by any competent authority, to collect and transmit information which affects public peace and the security of the Cyprus Republic, to prevent the commission of offences and public nuisance, to discover and bring transgressors to justice and to arrest all persons who he is lawfully authorised to arrest, for the arrest of whom there is a satisfactory ground. ”", "90. Section 29(1)(c) and (d) of the Police Law concerns the duty of the police to keep order on public roads. Its reads as follows:", "“ (1) It is the duty of every member of the police:", "...", "(c) to maintain order on public roads, streets, crossings, in airports and places of disembarkation and in other places of public recreation or places to which the public has access and", "(d) to regulate movement and the maintenance of order in cases of obstructions on public roads and streets or in other places of public recreation or places to which the public has access. ”", "2. The Public Roads Law and the Prevention of Pollution of Public Roads and Places Law", "91. Section 3 of the Public Roads Law (Cap. 83 as amended) provides, inter alia, that it is a criminal offence punishable by imprisonment to place any rubbish or any other matter or thing whatsoever on any public road, or allow any filth, refuse, offensive matter or thing whatsoever to flow or run into or onto it, or intentionally obstruct the free passage of the road (section 3).", "92. Section 3(1) of the Prevention of Pollution of Public Roads and Places Law of 1992 (Law no. 19(I)/92 as amended) provides, inter alia, that it is a criminal offence punishable by imprisonment to put, throw, leave, or tolerate or allow the throwing or leaving of, any refuse, waste or filth on a public road or in another public place.", "3. The Law on the Rights of Persons who are Arrested and Detained", "93. The Law on the Rights of Persons who are Arrested and Detained (Law no. 163(I)/2005) introduced a number of provisions regulating the rights and treatment of arrestees held in custody. It provides, inter alia, for the right of a person who is arrested by the police to a private telephone call to a lawyer of his or her choice immediately after his or her arrest (section 3(1)(a) ).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION", "106. Relying on Articles 2 and 3 of the Convention, the applicant complained that if deported to Syria, he would be exposed to a real risk of death or torture or inhuman or degrading treatment. These provisions read as follows:", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "...”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties ’ submissions", "107. The Government submitted that the applicant could no longer claim to be a victim of the alleged violation of Articles 2 and 3 of the Convention as he had been granted refugee status on 29 April 2011 and would therefore not be deported. Accordingly, they invited the Court to declare the applicant ’ s complaints under these provisions inadmissible on this ground. In the alternative, the Government argued that the applicant had failed to exhaust domestic remedies. They noted in this respect that the applicant had not, in the course of his recourse before the Supreme Court, filed an application seeking a provisional order to suspend his deportation. Further, he had not brought a recourse against the deportation and detention orders issued against him.", "108. The applicant accepted that he no longer faced a risk of deportation to Syria and the question of violation of Articles 2 and 3 of the Convention taken alone was not as such in issue anymore. He submitted that his recognition as a refugee was in substance an acknowledgment by the Government that his deportation to Syria would have been in violation of these provisions. He stressed, however, that if it had not been for the application of Rule 39 of the Rules of Court by the Court he would have been deported by the authorities. In reply to the Government ’ s plea of non-exhaustion he maintained that he did not have an effective domestic remedy at his disposal as required by Article 35 § 1 of the Convention. In this respect, the applicant pointed out, inter alia, that a recourse against a decision by the Reviewing Authority or against deportation and detention orders did not have automatic suspensive effect. Neither did an application for a provisional measure to suspend deportation made in the context of such proceedings. Lastly, the applicant argued that the scope of the recourse proceedings before the Supreme Court was too limited, as it did not entail an examination of the merits of the administrative decisions concerning asylum and deportation.", "B. The Court ’ s assessment", "1. Victim status", "109. The Court reiterates that, as a general rule, a decision or measure favourable to the applicant is not sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, amongst many other authorities, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012; I .M. v. France, no. 9152/09, §§ 94-95, 2 February 2012; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 56, ECHR 2007 ‑ II ).", "110. The Court notes that in the present case the applicant, on 29 April 2011, was granted refugee status. The President of the First Section decided to discontinue the application of Rule 39 on this basis. As the applicant is no longer at risk of deportation to Syria, he can no longer claim to be a victim of a violation of his rights under Articles 2 and 3 of the Convention within the meaning of Article 34 of the Convention. It follows that this part of the application must be rejected as being incompatible ratione personae with the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "2. Exhaustion of domestic remedies", "111. In view of the above conclusion, the Court does not need to examine the question of exhaustion of domestic remedies raised by the Government.", "II. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION", "112. Relying on Article 13 of the Convention, the applicant complained of the lack of an effective domestic remedy with regard to his complaints under Articles 2 and 3. In particular, he complained that a recourse challenging the decisions of the Reviewing Authority and the deportation and detention orders did not have automatic suspensive effect and did not entail an examination of the merits of the administrative decisions. Article 13 provides as follows:", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "1. The parties ’ submissions", "113. Despite the fact that he had been granted refugee status, the applicant considered that the Court should still proceed to examine his complaint under Article 13 of the Convention taken together with Articles 2 and 3. He submitted that he had had an arguable claim under the latter provisions. The authorities ’ decision to grant him refugee status confirmed this. He argued that he could still continue to claim to be a victim of a violation of Article 13 as he never had an effective domestic remedy at his disposal for the violation of his Convention rights. The applicant emphasised that he had not been removed to Syria only because of the interim measure indicated by the Court to the Cypriot Government.", "114. The Government did not make any specific submissions on this matter.", "2. The Court ’ s assessment", "115. Although the respondent State did not raise any objection as to the Court ’ s competence ratione personae, this issue calls for consideration proprio motu by the Court.", "116. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce - and hence to allege non-compliance with - the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. However, Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131 ).", "117. The Court has refrained from giving an abstract definition of the notion of arguability, preferring in each case to determine, in the light of the particular facts and the nature of the legal issue or issues raised, whether a claim of a violation forming the basis of a complaint under Article 13 is arguable and, if so, whether the requirements of this provision were met in relation thereto. In making its assessment the Court will also give consideration to its findings on the admissibility of the substantive claim (see Ivan Atanasov v. Bulgaria, no. 12853/03, §§ 100-101, 2 December 2010, and Boyle and Rice, cited above, § 54). The fact, however, that a substantive claim is declared inadmissible does not necessarily exclude the operation of Article 13 (see I. M. and Gebremedhin, and, mutatis mutandis, Boyle and Rice, §§ 54 -55; all cited above).", "118. More specifically, and of relevance to the present case, in deportation cases the Court has taken the view that loss of victim status in respect of alleged violations of Articles 2 and 3 of the Convention because an applicant was no longer exposed to the threat of deportation did not necessarily render that complaint non-arguable or deprive an applicant of his victim status for the purposes of Article 13. For example, in both the cases of I .M. and Gebremedhin (cited above), although the Court ruled that the applicants could no longer be considered as victims in respect of the alleged violation of Article 3, it found that the main complaint raised an issue of substance and that, in the particular circumstances, the applicants were still victims of the alleged violation of Article 13 taken together with Article 3. The same approach was taken recently by the Court in the case of De Souza Ribeiro in relation to a deportation complaint under Articles 8 and 13 ( De Souza Ribeiro v. France [GC], no. 22689/07, §§ 84 ‑ 100, 13 December 2012, read together with De Souza Ribeiro v. France, no. 22689/07, §§ 22-26, 30 June 2011).", "119. In the present case, having examined the case file, the Court considers that the applicant ’ s complaints under Articles 2 and 3 did raise a serious question as to the compatibility of his intended deportation in June 2010 with those provisions. It therefore finds that he can rely on Article 13. The Court observes in this respect that the Reviewing Authority in its decision granting the applicant refugee status held that the applicant had proved, in a convincing manner, that his fear of persecution and the danger to his life in the event of his return to Syria was objectively credible because of his political activity in Cyprus (see, mutatis mutandis, S.F. and Others v. Sweden, no. 52077/10, §§ 68-71, 15 May 2012 on the relevance of sur place activity in the receiving country).", "120. In the circumstances, it cannot be said that the applicant can no longer claim to be a victim of the alleged violation of Article 13 taken in conjunction with Articles 2 and 3.", "Firstly, as in the cases of I .M. and Gebremedhin (both cited above), the facts constituting the alleged violation had already materialised by the time the risk of the applicant ’ s deportation had ceased to exist. The applicant ’ s complaint is that when he was under threat of deportation there was no effective domestic remedy in respect of his complaints under Articles 2 and 3. The Court notes in this regard that at the time the applicant was to be sent back to Syria, his asylum application was being re-examined by the authorities and that it appears from the file that his deportation was halted only because of the application by the Court of Rule 39. The decision granting the applicant refugee status was taken more than ten months after he lodged his complaints before this Court. Secondly, although the authorities ’ decision to grant the applicant asylum has removed the risk that he will be deported, that decision does not acknowledge and redress his claim under Article 13 in conjunction with Articles 2 and 3 about the effectiveness of judicial review proceedings (see paragraphs 109-110 above). It cannot therefore deprive him of his status as a “victim” in respect of his complaint under this head.", "121. In the light of the foregoing and given that this complaint is not inadmissible on any other grounds, it must be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "122. The applicant claimed that there was no effective remedy in relation to his complaints under Articles 2 and 3 of the Convention as required by Article 13. Referring to the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ( [GC], no. 30696/09, §§ 288-293, ECHR 2011 ), he argued that the domestic remedies fell short of the requirements of Article 13 enunciated by the Court in its case-law.", "123. First of all, a recourse before the Supreme Court against a decision by the Reviewing Authority or deportation and detention orders did not have automatic suspensive effect; nor did the filing of an application for a provisional order. If an application for such an order was filed, whether or not deportation would be suspended boiled down to a matter of practice which rested on the authorities ’ discretion and required a concession on the part of the applicant. Moreover, and contrary to the Government ’ s submissions, the authorities did not always suspend deportation orders. The applicant relied on the court record in a recourse challenging a decision by the Reviewing Authority in a case in which deportation had taken place despite the fact that an application for a provisional order to suspend the execution of the deportation order had been filed. The person concerned had been deported the day before the hearing of the application by the Supreme Court. As a result the application was withdrawn ( Shahin Haisan Fawzy Mohammed, see paragraph 84 above). The applicant also claimed that asylum - seekers faced a number of difficulties in filing applications for provisional orders. Such an order would only be granted on proof of flagrant illegality or irreparable damage. Further, until recently, legal aid was not available either for the institution of a recourse against deportation and detention orders or for an application for a provisional order (see paragraph 7 2 above).", "124. Furthermore, although a decision by the Reviewing Authority was subject to judicial review, the Supreme Court could only examine its legality and could not examine the merits of the case. The scope of the Supreme Court ’ s jurisdiction was therefore too limited. Moreover, although it was possible, in view of recent amendments to the relevant domestic legislation, to apply for legal aid when challenging an asylum decision, it was rarely granted. The Supreme Court would only approve an application if it held that the recourse had a reasonable chance of success. It was, however, for the person concerned to establish the likelihood of success, which was a difficult hurdle to surmount since he or she would not have legal representation at that stage.", "125. Lastly, the applicant contended that there were significant shortcomings in the asylum procedures before the Asylum Service and the Reviewing Authority. As a result, the examination of asylum requests fell short of the standards required. The applicant referred to reports by, inter alia, local non- governmental organisations [6] and the fourth ECRI report on Cyprus (see paragraph 97 above).", "(b) The Government", "126. The Government submitted that the applicant had had effective domestic remedies in respect of his complaints under Articles 2 and 3 of the Convention as required by Article 13.", "127. The Government first pointed out that the applicant had had access to the asylum determination procedure at the Asylum Service and had been able to appeal to the Reviewing Authority. These remedies had suspensive effect. The applicant had then brought a recourse against the decision of the Reviewing Authority. Although these proceedings did not have automatic suspensive effect, in the course of the proceedings the applicant could have filed an application for a provisional order to suspend the execution of the deportation order issued against him. When such an application was filed, the authorities, as a matter of administrative practice, always suspended deportation either until the outcome of the main recourse or until the Supreme Court had reached a decision on the application. If an applicant agreed to an early hearing of the recourse and to withdraw the application for a provisional order, the authorities would suspend deportation for the duration of the entire main proceedings. Otherwise, deportation would be suspended only pending the examination of the application. The Government emphasised that the above practice was uniform and consistent and referred to a number of court records of judicial review proceedings in which both the above scenarios had taken place (see paragraphs 77-79 above).", "128. As regards the application for a provisional order, the Government pointed out that in accordance with domestic case-law, the Supreme Court would grant an order if an applicant established the flagrant illegality of the decision taken or that he or she had suffered irreparable damage as a result of the decision.", "129. The Government also claimed that the applicant should have brought a recourse challenging the deportation and detention orders issued against him. In such proceedings a provisional order could also be sought for the purpose of suspending deportation. The practice followed was the same as that in a recourse brought against a decision by the Reviewing Authority (see paragraph 12 7 above).", "130. In addition, the Government observed that the authorities, as a matter of usual practice, suspended the deportation order of a rejected asylum seeker if there were medical, family or humanitarian reasons for doing so. Additionally, before the execution of a deportation order, the authorities examined ex proprio motu whether there were reasons to believe that a rejected asylum seeker ’ s deportation would give rise to a real risk that he or she would be subjected to treatment in breach of Articles 2 and 3 of the Convention. The authorities also examined and decided any claim for suspension of the execution of the deportation irrespective of whether a recourse had been filed.", "2. The Court ’ s assessment", "131. The Court has already found that the applicant ’ s complaints under Articles 2 and 3 of the Convention are arguable and that the applicant can still claim to have been entitled to a remedy in that respect (see paragraphs 119 -1 21 above).", "132. The notion of an effective remedy under Article 13 in this context requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see M. and Others v. Bulgaria, no. 41416/08, § 129, 26 July 201 1; Salah Sheekh v. the Netherlands, no. 1948/04, § 153, 11 January 2007; and Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002 ‑ I ).", "133. In cases concerning the expulsion of asylum-seekers the Court has explained that it does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (see M.S.S., cited above, § 286) or to any other receiving country in which he or she would be at a real risk of suffering treatment in violation of Article 3 (see, for example in the specific context of the application of the Dublin Regulation, M.S.S., cited above, §§ 342 et seq ). Where a complaint concerns allegations that the person ’ s expulsion would expose him or her to a real risk of treatment contrary to Article 3 of the Convention, the effectiveness of the remedy for the purposes of Article 13 imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005 ‑ III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000 ‑ VIII ), as well as a particularly prompt response (see De Souza Ribeiro, cited above, § 82 ). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see, inter alia, De Souza, cited above, § 82, 1 3 December 2012; I.M. v. France, cited above, § 58; Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, § 32, 15 November 2011; Auad v. Bulgaria, no. 46390/10, § 120, 11 October 2011; Diallo v. the Czech Republic, no. 20493/07, § 74, 23 June 2011; M.S.S. , cited above, § 293; Baysakov and Others v. Ukraine, no. 54131/08, § 71, 18 February 2010; Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 108, 22 September 2009; and Gebremedhin, cited above, § 66 ). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right safeguarded by Article 2 of the Convention.", "134. Turning to the present case, the Court notes that the applicant ’ s asylum application and appeal thereto were initially rejected by the Cypriot authorities. His file, however, was subsequently re-opened for re ‑ examination in view of new information put forward by the applicant (see paragraph 17 above). When the first set of deportation and detention orders were issued on 11 June 2010 on the ground that the applicant was in Cyprus unlawfully, these proceedings were still pending (see paragraphs 17-22 above). Even though it appears that an internal note had been prepared a few days before by an officer of the Asylum Service with a negative proposal, no formal decision had been taken at this stage (see paragraph 18 above). The Reviewing Authority gave its decision on 30 September 2010 after having taken up the matter from the Asylum Service (see paragraph 22 above). The Court notes in this connection that under domestic law, proceedings before the Asylum Service and the Reviewing Authority are suspensive in nature. Consequently, as admitted by the Government in their observations of 20 September 2011 (see paragraph 182 below) a mistake had been made by the authorities as, at the time, the applicant had been in Cyprus lawfully. He should not, therefore, have been subject to deportation.", "135. The Government argued that the applicant should have lodged a recourse with the Supreme Court seeking the annulment of the deportation orders and that he should have applied for a provisional order to suspend his deportation in the context of those proceedings. The Court observes, however, that neither a recourse against deportation and detention orders, nor an application for a provisional order in the context of such proceedings, has automatic suspensive effect. Indeed, the Government have conceded this.", "136. The Government emphasised that an application for a provisional order was suspensive “in practice”. In particular, as a matter of administrative practice, the authorities refrained from removing the person concerned until a decision had been given by the Supreme Court on the application or, in the event of an agreement being reached between the parties entailing the withdrawal of the application and an early hearing, until the end of the main proceedings.", "137. The Court reiterates, however, that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. This is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention (see, mutatis mutandis, Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). The Court has, therefore, rejected similar arguments put before it in other cases concerning deportation advocating the sufficiency of a suspensive effect in “practice” (see, for example, Gebremedhin, § 66; and Čonka, §§ 81-83 both cited above). It has further pointed out the risks involved in a system where stays of execution must be applied for and are granted on a case-by-case basis (see Čonka, cited above, § 82).", "138. Given the above, the applicant cannot be found to be at fault for not having brought such proceedings (see, mutatis mutandis, Diallo, cited above, § 78).", "139. The Court further points out that the deportation and detention orders were obviously based on a mistake made by the authorities. Since the applicant ’ s asylum application was being re-examined, he continued to have the benefit of suspensive effect ( see paragraphs 74, 127 and 134 above). Yet, despite this the orders against the applicant continued to remain in force for more than two months, during which the re-examination of his asylum claim was still taking place, and the applicant was not removed to Syria during this period solely because of the application of Rule 39. No effective domestic judicial remedy was available to counter this error. Moreover, the Court notes the lack of any effective safeguards which could have protected the applicant from wrongful deportation at that time.", "140. The Court also observes that the deportation and detention orders of 11 June 2010 were subsequently annulled by the authorities and were replaced on 20 August 2010 by new orders issued on different grounds (see paragraph 48 above). Likewise, these too could not be executed until the re ‑ examination of his asylum claim by the authorities had been completed (see the judgment of the Supreme Court in Asad Mohammed Rahal, paragraph 74 above). Following the Reviewing Authority ’ s decision of 30 September 2010, however, the applicant was no longer authorised to remain in the country. Although the applicant filed a recourse before the Supreme Court against that decision, those proceedings were not automatically suspensive. Furthermore, in so far as the Government argue that the applicant should have filed an application for a provisional order to suspend his deportation in the course of those proceedings, the Court has already found that such an application does not have automatic suspensive effect (see paragraph 135 above). A recourse against the new orders would also suffer from the same shortcoming. As a result, the applicant could have been removed before the Supreme Court reached a decision on the matter.", "141. The Court concludes therefore that the applicant did not have an effective remedy in relation to his complaint under Articles 2 and 3 of the Convention.", "142. There has therefore been a violation of Article 13 of the Convention.", "143. In view of the above conclusion, the Court does not need to examine the applicant ’ s remaining complaint under this head concerning the scope of judicial review proceedings.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "144. The applicant complained that he did not have an effective remedy at his disposal to challenge the lawfulness of his detention. He relied on Article 5 § 4 of the Convention, which provides as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "145. The Government contested that argument.", "A. Admissibility", "146. The Government submitted that the applicant had not exhausted domestic remedies as he had failed to lodge a recourse under Article 146 of the Constitution challenging the lawfulness of the decision to detain and deport him.", "147. The applicant submitted in reply that this remedy was incompatible with Article 5 § 4 both in terms of “speediness” and scope.", "148. The Court finds that the issue raised by the Government ’ s plea of non- exhaustion of domestic remedies in reality goes to the merits of Article 5 § 4, namely, whether or not the applicant had at his disposal during his detention a remedy which would have provided him with an adequate and speedy judicial review of the lawfulness of his detention. The Court will therefore address this issue when examining the substance of the applicant ’ s complaint under this provision.", "149. It further notes that the applicant ’ s complaint is not manifestly ill- founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "150. The applicant submitted that there were no effective domestic remedies complying with the requirements of Article 5 § 4 of the Convention. First of all, he claimed that recourse proceedings before the Supreme Court against deportation and detention orders were excessively long and did not respect the requirement of speediness. In this connection, the applicant maintained that the average time for a recourse was one and a half to two years at first instance and three to four years on appeal. The applicant criticised the data provided by the Government, arguing that there was no information concerning the methodology used to calculate the average length of such proceedings. In particular, the Government had omitted to explain whether the average length of eight months provided in the data only concerned recourses which followed their normal course, or also recourses which were eventually withdrawn or in which an application for a provisional order had been filed and then withdrawn in exchange for an “accelerated” procedure. Further, the Government had failed to provide data on the length of appeal proceedings. In this respect, the applicant asserted that there was a significant delay in the examination of appeals. He noted that he had managed to find four cases in which appeal proceedings had been decided between 2008 and 2011, the average length of which had been three years. The applicant admitted, however, that he was not in a position to say whether the persons concerned had remained in detention during that period.", "151. As to the examples of recourses relied on by the Government (see paragraphs 77-79 above), the applicant submitted that these did not give an accurate picture of the situation. Four out of the five recourses had been eventually withdrawn by the persons concerned. The remaining one mainly concerned the lawfulness of the Reviewing Authority ’ s decision and not of the deportation and detention orders (see paragraph 7 9 above). A further three of the recourses could not be considered as separate cases as they involved members of the same family and had been jointly examined.", "152. The applicant also referred to four recourses in which the persons concerned had submitted an application for a provisional order and then withdrawn it in exchange for what the Government had claimed to be a speedy procedure. In these cases, the recourses had not been withdrawn and the duration of the proceedings ranged from approximately four months to over six months (see paragraphs 80-83 above).", "153. The applicant submitted that it was not reasonable to expect applicants in detention and deportation cases, with no means of subsistence, to have to lodge an ex parte application for a provisional order on top of a recourse, only to subsequently withdraw it in order to secure suspension of their deportation and a speedy determination of the legality of the deportation and detention orders. The applicant pointed out in this respect that there were practical difficulties associated with filing ex parte applications in deportation cases.", "154. The applicant also challenged the remedy in terms of its accessibility. First of all, the letters sent out by the authorities notifying the issuance of the deportation and detention orders made no mention of the remedies available to challenge their lawfulness. Secondly, although it was possible in view of recent amendments to the relevant domestic legislation to apply for legal aid in deportation and detention cases, this was, as in asylum cases, rarely granted (see paragraphs 72, 76 and 124 above).", "155. Besides these difficulties and the lack of speediness, the applicant argued that a recourse under Article 146 of the Constitution was also deficient in scope, as the Supreme Court ’ s jurisdiction was limited to examining the legality of the case and not its substance. Consequently, even if successful, this procedure was not always capable of leading to the release of the person concerned. The applicant explained that in the event of an annulment by the Supreme Court of deportation and detention orders, the authorities would simply issue new deportation and detention orders, taking care to ensure that they did not commit the same errors, and the detention would continue on the basis of the new orders. A fresh recourse would then have to be filed against the new decision.", "156. The applicant went on to stress that the domestic law did not provide for periodic review of detention for the purpose of deportation. Once deportation and detention orders were issued they were only subject to judicial review by the Supreme Court through the Article 146 procedure. A habeas corpus application could only be brought in order to challenge the lawfulness of detention in terms of its length. Although the applicant had used this remedy, he had been unsuccessful (see paragraphs 50-55 above). Referring to his habeas corpus application, the applicant, in his observations of 12 August 2012, complained that these proceedings did not comply with the requirements of Article 5 § 4.", "157. Finally, the applicant referred to the recent report by Amnesty International on the detention of migrants and asylum seekers in Cyprus, (see paragraphs 100-104 above).", "(b) The Government", "158. For their part, the Government submitted that the applicant had had an effective procedure at his disposal through which he could have obtained his speedy release. In particular, the applicant could have lodged a recourse under Article 146 of the Constitution challenging the lawfulness of the decision to detain and deport him. If he had succeeded, the relevant order would have been annulled and he would have been released. The applicant could also have filed, in the context of the recourse, an application for a provisional order seeking the suspension of his deportation. If the applicant had taken these steps he could have been released quickly. In this respect, the Government repeated their submissions under Article 13 of the Convention that, as a matter of administrative practice, if the applicant had agreed to an early hearing of the recourse and withdrawn his application for a provisional order, the authorities would have suspended the execution of the deportation order and the proceedings would have been expedited (see paragraphs 127-129 above). The lawfulness of the deportation and detention orders would have been adjudicated in a matter of weeks. The Government referred to the records of the proceedings in a number of recourses as examples of expedited judicial review proceedings (see paragraphs 77-79 above).", "159. The Government also submitted that according to official data the average length of first-instance proceedings in recourses against deportation and detention orders in the years 2010 and 2011 had been eight months. However, no data were available concerning appeal proceedings as, according to the Supreme Court registry records, only two appeals had been lodged during these two years. One had been withdrawn and one was still pending.", "2. The Court ’ s assessment", "(a) General principles", "160. Article 5 § 4 entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see, as a recent authority, Stanev v. Bulgaria [GC], no. 36760/06, § 168, ECHR 2012 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release (see Louled Massoud v. Malta, no. 24340/08, § 39 July 2010 ). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see Čonka, cited above, §§ 46 and 55). The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, amongst many authorities, Nasrulloyev v. Russia, no. 656/06, § 86, 11 October 2007, and Kadem v. Malta, no. 55263/00, § 41, 9 January 2003).", "161. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 with further references).", "162. Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful (see Sarban v. Moldova, no. 3456/05, § 118, 4 October 2005, and Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000 ‑ III ). The Court has laid down strict standards in its case-law concerning the question of State compliance with the speed requirement. In the cases of Sarban and Kadem (both cited above) and Rehbock v. Slovenia ( no. 29462/95, § 84, ECHR 2000-XII ), for example, the Court considered that time ‑ periods of twenty-one, seventeen and twenty-three days, respectively, were excessive.", "163. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case (see Rehbock, cited above; G.B. v. Switzerland, no. 27426/95, § 33, 30 November 2000; and M.B. v. Switzerland, no. 28256/95, § 37, 30 November 2000 ). An applicant, however, will not be required to pursue a particular remedy where the Court finds from the information and submissions before it that it would not have ensured a speedy review of his or her detention (see, for example, Louled Massoud, cited above, §§ 44-45, 27 July 2010, and Sabeur Ben Ali v. Malta, no. 35892/97, § 40, 29 June 2000).", "(b) Application to the present case", "164. Turning to the present case, the Court observes at the outset that the fact that the applicant was released on 3 May 2011 upon being granted refugee status does not render his complaint under this provision devoid of purpose bearing in mind that he was detained for more than ten months (see inter alia, Sadaykov v. Bulgaria, no. 75157/01, § 33, 22 May 2008; Čonka, cited above, § 55, in limine; and Louled Massoud, § 14, cited above; see also, mutatis mutandis, Kormoš v. Slovakia, no. 46092/06, §§ 93-94, 8 November 2011 ).", "165. The Court notes that under domestic law, the lawfulness of deportation and detention can only be examined in the context of a recourse brought under Article 146 of the Constitution within the required time- limit (see paragraphs 67-70 above). The Court has already examined the effectiveness of this remedy in so far as deportation is concerned for the purposes of Article 13 taken together with Articles 2 and 3. It must, however, now consider in so far as detention is concerned whether it meets the requirements of Article 5 § 4 of the Convention.", "166. The applicant did not make use of this remedy to challenge the detention orders issued against him as he claimed that it was deficient in speed and scope for the purposes of Article 5 § 4.", "167. As regards the requirement of “speediness”, the Court notes that according to the Government ’ s submissions the average length of a recourse challenging the lawfulness of a detention order, as also, at the same time, of a deportation order, is eight months at first instance (see paragraph 159 above). This is undoubtedly far too long for the purposes of Article 5 § 4.", "168. The Court has also examined the examples relied on by the Government in support of their contention that such proceedings can be expedited. These, however, are not at all satisfactory, even though the proceedings were of a lesser duration than the average given. The Court observes in this connection that the shortest time taken for the proceedings in these examples lasted one month and seventeen days and two months and twenty days respectively (see paragraphs 77-78 above). These periods are still excessive, bearing in mind the strict standards set down by the Court in its case-law (see paragraph 162 above) and the fact that they ended due to a withdrawal of the recourse by the persons concerned, without judgment having been given on the lawfulness of the decisions to deport and detain them. Not even one hearing had been held within the respective periods. The Court also notes that the applicants in these cases had to reach an agreement with the Government in order to expedite the proceedings. The Court reiterates in this respect that under Article 5 § 4 of the Convention the existence of domestic remedies must be sufficiently certain ( see paragraph 160 above) and that “speediness” is an indispensable requirement of that provision, which does not depend on the parties reaching an agreement in the proceedings.", "169. In view of the above considerations, the Court finds that pursuing a recourse would not have provided the applicant with a speedy review of the lawfulness of the decision to detain him, as required by Article 5 § 4 of the Convention. It is therefore unable to agree with the Government that the applicant should have tried that remedy.", "170. Accordingly, the Court concludes that there has been a violation of Article 5 § 4 of the Convention.", "171. Having regard to this finding, the Court does not consider it necessary to examine the remainder of the applicant ’ s complaints concerning the judicial review proceedings (see paragraphs 154-155 above) and those subsequently raised in his observations in relation to the habeas corpus proceedings (see paragraph 156 above).", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "172. The applicant further complained that his detention had been unlawful and therefore in breach of Article 5 § 1 (f) of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "A. The parties ’ submissions", "1. The applicant", "173. The applicant submitted that his detention from 11 June 2010 until 3 May 2011 had been arbitrary and contrary to Article 5 § 1 (f) of the Convention. First of all, he had been arrested on the above-mentioned date without a warrant even though he had not been arrested for committing a flagrant offence. Although the authorities claimed that the protesters, including the applicant, had committed a number of offences under, for example, the Public Roads Law, they had not arrested them on such grounds. Further, the authorities did not know at the time the names and particulars of the protesters and could not therefore have known whether they had been staying in Cyprus unlawfully. Consequently, until the deportation and detention orders were issued against him, his arrest and detention had not been in conformity with the procedural requirements of domestic law and Article 11 (3) of the Constitution (see paragraph 88 above). The applicant noted in this respect that in the light of the Government ’ s observations it was not at all clear on what grounds he had actually been arrested and detained during this period.", "174. Secondly, the authorities had proceeded to issue deportation and detention orders against him under the Aliens and Immigration Law on the basis that he was an unlawful immigrant. Yet, according to the domestic law, the applicant had been lawfully residing in Cyprus as his asylum application was still pending with the Reviewing Authority. In fact, the decision of the Reviewing Authority had been taken on 30 September 2010, that is, more than three months after his arrest. Nonetheless, the applicant had been kept in detention throughout this period.", "175. Thirdly, the new orders issued by the authorities on 20 August 2010 on public order grounds had been completely unjustified. The Government pleaded that the applicant had been dangerous to the public order and the security of the Republic but did not put forward any justification or evidence in this respect. In the applicant ’ s view the authorities had acted in bad faith and/or on the basis of misinformation. Furthermore, those orders had never been communicated to the applicant in accordance with section 14 (6) of the Aliens and Immigration Law. The applicant found out about the decision of the Minister of the Interior when he received a copy of the Government ’ s letter of 12 October 2010 to the Court informing the latter of the issuance of these orders ( see paragraphs 47 -48 above).", "176. Even assuming, however, that his detention had been compatible with the domestic law, the applicant considered that it had ceased to be so because of its excessive duration. Unlike in the case of Chahal v. the United Kingdom (15 November 1996, Reports 1996 ‑ V), the length of detention in his case could not be justified on the basis of any exceptional circumstances. The authorities had not been able to deport the applicant only because of the Court ’ s interim measure. In addition, the maximum period of detention of six months, provided for in Directive 2008/115/ EC (see paragraphs 86 and 9 8 above) which had been directly applicable in domestic law, had elapsed. Despite this the authorities had continued to detain him. In the applicant ’ s view, his continued detention could only be considered as a form of punishment. The authorities could have released him and granted him a temporary residence permit on humanitarian grounds pending the examination of his case both domestically and by the Court.", "2. The Government", "177. The Government submitted that an unacceptable situation had been created by the protesters on one of the busiest streets of Nicosia, on which office blocks and public buildings were situated. It posed a risk to the health of both the public and the protesters themselves, it obstructed the free passage of traffic and pedestrians, it caused a public nuisance and it created a risk of spreading disease to members of the public who worked and lived in the area and who had complained to the authorities. The protesters had refused to co-operate with the authorities and efforts to persuade them to leave had been to no avail.", "178. There had been two avenues open to the authorities: either to arrest the protesters for a number of flagrant criminal offences committed at the place of protest and punishable by imprisonment, for example, under the Public Roads Law (Cap. 83, as amended) and the Prevention of Pollution of Public Roads and Places Law (Law 19 (I)/92, as amended) (see paragraphs 91-92 above), or to take measures to peacefully remove the protesters. They had opted for the latter course of action in order to avoid a risk of a violent reaction or clashes and to enable a careful examination of the immigration status of each protester. It would have been impossible for the police to do an on-the-spot check. In taking their decision the police had also considered that there were women and children among the protesters.", "179. The Government noted that on 11 June 2010 the police, in removing the protesters, including the applicant, had acted in the exercise of their duties under the Police Law (Law no. 73(I)/2004 as amended) in order to, among other things, prevent the commission of criminal offences and public nuisance, maintain order on public roads, streets, passages and places to which the public had access and regulate the maintenance of order in cases of obstruction of public roads and streets and other places to which the public had access (sections 24(2) and 29(1)(c) and (d) of the Law, see paragraphs 89-90 above). The aim of the police had been to remove the protesters peacefully and transfer them to the ERU headquarters in order to question them for the purpose of ascertaining their names and status and, in particular, to identify those whose asylum applications had been rejected and who were unlawfully residing in the Republic. The Government considered that it had been completely legitimate, in the course of an operation for the removal of the protesters from the street, to also try to identify any Kurds from Syria who had been staying in the Republic unlawfully following the rejection of their asylum applications.", "180. The Government emphasised in this regard that neither the applicant nor the other protesters had been deprived of their liberty when they had been removed from the street and taken to the ERU headquarters along with the other protesters. Nor had they been deprived of their liberty at the headquarters during the examination of their papers for the purpose of determining their immigration status. The authorities had transferred the protesters, including the applicant, to the ERU headquarters for identification purposes and not to arrest and detain them (relying on X. v Germany, no. 8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) vol. 24, p. 158). They had not been kept in cells, they had not been handcuffed and they had been given food and drink. Those who had been identified as being lawfully resident in the Republic had gone home. The rest had been arrested. The applicant ’ s detention had commenced once he had been charged with the flagrant criminal offence of unlawful stay in the Republic and arrested on this ground.", "181. In this connection, in their first set of observations to the Court dated 3 June 2011, the Government maintained that the applicant ’ s arrest and detention on the ground of unlawful stay had been lawful as it had been in conformity with domestic law and procedure. The applicant had been arrested on the ground that he had been a “prohibited immigrant” staying in the Republic unlawfully after the rejection of his asylum application. They noted in this respect that the criminal offence of unlawful stay was a flagrant offence punishable by imprisonment under section 19 (2) of the Aliens and Immigration Law. Article 11 (4) of the Constitution permitted arrest without a warrant for flagrant offences carrying a term of imprisonment. The deportation and detention orders had been issued on the same day, before the lapse of the twenty-four hour time-limit set by Article 11 (5) of the Constitution. His detention had continued on the basis of these orders for the purpose of effecting his deportation.", "182. In their subsequent observations of 20 September 2011, however, the Government admitted that a mistake had been made with regard to the applicant. As his asylum application had been pending with the authorities at the time, the applicant had in fact at the time of his arrest been legally residing in the Republic.", "183. The Government made no submissions, further to their letter of 12 October 2010 ( see paragraph 47 above), with regard to the new deportation and detention orders issued against the applicant on 20 August 2010 and his continued detention on that basis. They did not comment on whether the applicant had been given notice of those orders either.", "B. The Court ’ s assessment", "184. The Court notes that the applicant ’ s complaint under Article 5 § 1 of the Convention can be divided into three parts that require separate examination:", "- the first part concerns his transfer, along with the other protesters, to the ERU headquarters on 11 June 2010 and his stay there pending his identification;", "- the second part concerns his detention on the basis of the deportation and detention orders issued against him on 11 June 2010 under section 6(1)(k) of the Aliens and Immigration Law; and", "- the third part concerns his detention on the basis of the deportation and detention orders issued against him on 20 August 2010 under section 6(1)(g) of the Aliens and Immigration Law.", "1. The applicant ’ s transfer to and stay at the ERU headquarters on 11 June 2010", "(a) Admissibility", "185. The Court notes that the parties disagree on whether or not the applicant ’ s situation during this period amounted in practice to a deprivation of liberty. The Government dispute the applicant ’ s arguments and, hence, the applicability of Article 5 § 1 of the Convention to this period.", "186. Article 5 § 1, which proclaims the “right to liberty”, is concerned with a person ’ s physical liberty. Its aim is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion. In determining whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, the starting -point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see, amongst many authorities, Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, 15 March 2012; Stanev, cited above, § 115, 17 January 2012; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010; and Guzzardi v. Italy, 6 November 1980, §§ 92- 93). It is clear that the question whether there has been a deprivation of liberty is very much based on the particular facts of a case (see, for example, Austin, § 61, cited above).", "187. In determining whether or not there has been a violation of Convention rights it is often necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( for example, in relation to Article 5 § 1, see, Creangă v. Romania [GC], no. 29226/03, § 91, 23 February 2012 and Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50). The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court ’ s conclusion as to the existence of a deprivation of liberty.", "188. The Court notes that in cases examined by the Commission, the purpose of the presence of individuals at police stations, or the fact that the parties concerned had not asked to be allowed to leave, were considered to be decisive factors. Thus, children who had spent two hours at a police station in order to be questioned without being locked up were not found to have been deprived of their liberty (see X. v. Germany, no 8819/79, cited above) nor was an applicant who had been taken to a police station for humanitarian reasons, but who was free to walk about on the premises and did not ask to leave (see Guenat v. Switzerland (dec.), no. 24722/94, Commission decision of 10 April 1995). Likewise, the Commission attached decisive weight to the fact that an applicant had never intended to leave the courtroom where he was taking part in a hearing (see E.G. v. Austria, no. 22715/93, Commission decision of 15 May 1996).", "189. The case-law has evolved since then, as the purpose of measures taken by the authorities depriving applicants of their liberty no longer appears decisive for the Court ’ s assessment of whether there has in fact been a deprivation of liberty. To date, the Court has taken this into account only at a later stage of its analysis, when examining the compatibility of the measure with Article 5 § 1 of the Convention (see Creangă, § 93, cited above; Osypenko v. Ukraine, no. 4634/04, §§ 51-65, 9 November 2010; Salayev v. Azerbaijan, no. 40900/05, §§ 41-42, 9 November 2010; Iliya Stefanov v. Bulgaria, no. 65755/01, § 71, 22 May 2008; and Soare and Others v. Romania, no. 24329/02, § 234, 22 February 2011).", "190. Furthermore, the Court reiterates its established case-law to the effect that Article 5 § 1 may also apply to deprivations of liberty of a very short length (see, among many authorities, Brega and Others v. Moldova, no. 61485/08, § 43, 24 January 2012; Shimovolos v. Russia, no. 30194/09, §§ 48-50, 21 June 2011; Iskandarov v. Russia, no. 17185/05, § 140, 23 September 2010; Rantsev v. Cyprus and Russia, no. 25965/04, § 317, ECHR 2010 (extracts); and Foka v. Turkey, no. 28940/95, § 75, 24 June 2008).", "191. Turning to the facts of the present case, the Court observes that according to the available information a large-scale operation was carried out on 11 June 2010 at 3 a.m. involving about 250 police officers, in order to remove the protesters from the place of protest (see paragraph 36 above). The applicant and another 148 protesters were boarded on buses and taken to the ERU headquarters where they remained for a number of hours pending their identification and ascertainment of their immigration status.", "192. The Court first notes in this respect that in contrast to the exceptional circumstances examined by the Court in Austin (cited above, §§ 66 and 68), there is no evidence in the instant case that the police were faced, at the place of protest, with a volatile or dangerous situation that gave rise to a real and immediate risk of violent disorder or serious injury to persons or property.", "193. Second, although it appears that there was no resistance on the part of the protesters, it cannot be said that they had in the circumstances a real choice and that they boarded the buses and remained on the police premises voluntarily. The Court notes in this respect that the operation took place at 3 a.m., at a time when the majority of the protesters were sleeping (see paragraph 36 above). Bearing in mind the nature, scale and aim of the operation, the manner in which it was carried out and the overall measures taken by the authorities, it would be unrealistic to assume that the protesters were free to refuse to board the buses or to leave the police headquarters. Nor have the Government indicated that they were. It is clear that the aim of the operation was also to identify the protesters who were staying in the country unlawfully with a view to deporting them. Only those who were found to be lawfully residing in Cyprus were able to leave the premises. There was undoubtedly an element of coercion, which in the Court ’ s view is indicative of a deprivation of liberty within the meaning of Article 5 § 1. The fact that nobody had been handcuffed, put in cells or otherwise physically restrained during the period in question does not constitute a decisive factor in establishing the existence of a deprivation of liberty ( see I.I. v. Bulgaria, no. 44082/98, § 87, 9 June 2005, and Osypenko, cited above, § 32).", "194. The Court also refers, in this respect, to the instructions received by the police to use “discreet methods of arrest ” (see paragraph 31 above).", "195. In these circumstances the Court considers that the applicant ’ s transfer to and stay in the ERU headquarters during this period amounted to a de facto deprivation of liberty within the meaning of Article 5 § 1 and that this provision applies to his case ratione materiae.", "196. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "197. The Court must now determine whether the applicant ’ s detention was compatible with Article 5 § 1. It reiterates that in order to comply with this provision, the detention in issue must first of all be “lawful”. This must include the observance of a procedure prescribed by law. In this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see Benham v. the United Kingdom, 10 June 1996, § 40, Reports 1996 ‑ III ). However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion.", "198. The Court must, moreover, ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see Zervudacki v. France, no. 73947/01, § 43 and Baranowski v. Poland, §§ 50 ‑ 52, cited above ).", "199. In the present case, the Government have submitted that the applicant, along with the other protesters, was not deprived of his liberty during this period (see paragraph 180 above). It appears that for this reason, although they have given explanations for the actions of the authorities, they have not relied on any particular provision as a legal basis for the deprivation of liberty.", "200. In this particular regard, the Government have submitted that the authorities opted for the peaceful removal of the protesters and that the police acted in exercise of their duties under the Police Law in order to, inter alia, prevent the commission of certain criminal offences and public nuisance and to maintain order on public roads and in public areas (see paragraphs 89-90 above). The specific provisions referred to by the Government concern the powers and duties of police officers to arrest people they are lawfully authorised to arrest and their duty to preserve order on public roads and to regulate movement, but it has not been claimed that any of these powers were actually used to effect the arrest of the applicant and the other protesters.", "201. At the same time, the Government submitted that the operation also aimed to identify the protesters and ascertain their legal status. The authorities suspected that a number of the protesters were failed asylum seekers and, therefore, “ prohibited immigrants ”, but considered that it would have been impossible to carry out an effective on-the-spot inquiry without provoking a violent reaction. Consequently, all the protesters were taken to the ERU headquarters for identification purposes and to determine whether or not they were unlawful immigrants. The Government have not, however, acknowledged that there was a deprivation of liberty on this ground.", "202. The Court is conscious of the difficult situation that the Cypriot authorities found themselves in and that an operational decision had to be taken. This, however, cannot justify the adoption of measures giving rise to a deprivation of liberty without any clear legal basis.", "203. It follows that the applicant ’ s deprivation of liberty during this period was contrary to Article 5 § 1 of the Convention. There has, therefore, been a violation of this provision.", "2. The applicant ’ s detention on the basis of the deportation and detention orders issued on 11 June 2010 and 20 August 2010", "(a) Admissibility", "204. The Court notes that it is not disputed that the applicant was deprived of his liberty from 11 June 2010 until 3 May 201 1 on the basis of deportation and detention orders issued under the Aliens and Immigration Law.", "205. The Court further notes that the applicant ’ s complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "(b) Merits", "206. The Court is satisfied that the applicant ’ s deprivation of liberty from 11 June 2010 to 3 May 2011 fell within the ambit of Article 5 § 1 (f) of the Convention as he was detained for the purpose of being deported from Cyprus. This provision does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c) (see Chahal §§ 112-113 and Čonka, § 38, both cited above). All that is required under this provision is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Chahal, cited above, § 112).", "207. The Court notes that Cypriot law allows for the possibility of detention with a view to deportation. The Court observes in this respect that both the decisions of 11 June and 20 August 2010 ordering the applicant ’ s detention and deportation were based on section 14 of the Aliens and Immigration Law, which permits the Chief Immigration Officer to order the deportation of any alien who is a prohibited immigrant and his or her detention in the meantime (see paragraph 63 above).", "208. It follows that the issue to be determined is whether the applicant ’ s detention under that provision was “lawful”, including whether it complied with “a procedure prescribed by law” ( see paragraphs 197-198 above).", "i. The applicant ’ s detention between 11 June and 20 August 2010 on the basis of the deportation and detention orders of 11 June 2010", "209. The Court notes that the applicant was charged on 11 June 2010 with the offence of unlawful stay and was detained, on the basis of deportation and detention orders issued on the same day, for a total of two months and nine days. These orders had been issued pursuant to section 6(1)(k) of the Aliens and Immigration Law on the ground that the applicant was a “ prohibited immigrant ” staying in the Republic unlawfully. However, it is clear from the information before the Court that this was not the case as, at the time, the re-examination of the applicant ’ s asylum application was still pending. Indeed, the Government admitted in their observations of 20 September 2011 that the applicant had been legally residing in the Republic and that a mistake was made by the authorities.", "210. In these circumstances, the Court finds that during this period the applicant was unlawfully deprived of his liberty. There has therefore been a violation of Article 5 § 1 of the Convention.", "ii. The applicant ’ s detention between 20 August 2010 and 3 May 2011 on the basis of the deportation and detention orders of 20 August 2010", "211. By a letter dated 12 October 2010, the Government informed the Court that on 17 August 2010 the Minister of Interior had declared the applicant an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law, on the basis of information that he had been involved in activities relating to the receipt of money from prospective Kurdish immigrants in exchange for securing residence and work permits in Cyprus. Deportation and detention orders had then been issued on 20 August 2010 on the basis of the above provision and the previous orders of 11 June 2010 were annulled (see paragraphs 47-48 above). The applicant was therefore detained on the basis of these orders for another eight months and twelve days until his release on 3 May 2011. The applicant, however, claims that the orders had not been communicated to him in accordance with domestic law and that he had found out about the decision of the Minister of the Interior following an exchange of information between the parties in the context of the Court proceedings.", "212. The Court first observes that there does not appear to have been any follow-up to the allegations against the applicant so as to lend support to what was imputed to him.", "213. Secondly, the Court notes that, according to section 14(6) of the Aliens and Immigration Law, a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for the decision unless this is not desirable on public-security grounds (see paragraph 63 above). This provision affords certain minimum guarantees to persons against whom a decision to deport and/or detain has been taken (see the Supreme Court ’ s judgments in Uros Stojicic and Kamran Sharajeel, paragraph 64 above ).", "214. The Government, on 12 October 2010, provided the Court with a copy of the deportation and detention orders, which were written in Greek. However, they have not submitted any evidence that the applicant was notified by the authorities of the issuance of these orders and the new grounds for his detention. Indeed, the Government have not made any submissions on this matter.", "215. Consequently, in the absence of any evidence or explanation by the Government to the contrary, the Court finds that the applicant was not given notice of the new deportation and detention orders in accordance with section 14(6) of the Aliens and Immigration Law. Although section 14(6 ) provides an exception to this rule on public-security grounds, the Government have not pleaded this as a reason for not communicating the orders to the applicant. Nor can it be said, on the basis of the file in any event, that there was a potential public-security issue.", "216. The Court therefore finds that the procedure prescribed by law was not followed (see Voskuil v. the Netherlands, no. 64752/01, §§ 81-83, 22 November 2007).", "There has accordingly also been a violation of Article 5 § 1 of the Convention in so far as this period of detention is concerned.", "C. Overall conclusion", "217. The Court finds a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s entire period of detention, namely, from 11 June 2010 until 3 May 2011 (see paragraphs 197 -203, 209-210 and 211 ‑ 216 above).", "V. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION", "218. The applicant complained that the authorities had not complied with the requirements of Article 5 § 2 of the Convention. This provision reads as follows:", "“ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”", "219. The Government contested that argument.", "A. Admissibility", "220. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "221. First of all, the applicant submitted that he had not been informed of the grounds for his arrest either at the place of protest or when he was brought to the ERU headquarters. It was only on 14 June 2010, more than 72 hours after his arrest, that he had been informed orally that he would be deported to Syria on the same day. Relying on the Court ’ s judgment in Saadi v. the United Kingdom ([GC], no. 13229/03, ECHR 2008), the applicant pointed out that this could not be considered to be “prompt” and therefore in line with the requirements of Article 5 § 2. Although the applicant, along with a number of others, had submitted a Rule 39 request the day after his arrest, this had been due to the involvement of other members of the Kurdish community in Cyprus and the Yekiti Party who had been afraid that there was a serious possibility of deportation and instructed a lawyer to take action on behalf of those concerned.", "222. Furthermore, the applicant pointed out that the deportation and detention orders had not been served on him. He had found out about them through his lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court. Likewise, the applicant had not been served with the letter of 11 June 2010. In this connection, the applicant noted that he had never refused to take receipt of any kind of information in writing. He also considered it strange that police officers in different detention centres had managed to co-ordinate and deliver all these letters to so many people on the same day. In any event, the letter addressed to the applicant was in English, a language that he could not understand. Moreover, it did not contain any information as to the remedies available for challenging the decision to detain and deport him.", "223. Lastly, the applicant had not been notified of the new orders issued against him on 20 August 2010 but had found out about the decision of the Minister of the Interior when he received a copy of the Government ’ s letter of 12 October 2010 to the Court informing the latter of the issuance of those orders (see paragraphs 47 -48 above ).", "(b) The Government", "224. The Government submitted that once he had been identified at the ERU headquarters, the applicant was arrested and charged with the flagrant offence of unlawful stay in the Republic. He had been told there and then of the reasons for his arrest and detention, namely, that he had been staying on the territory unlawfully and was therefore a “prohibited immigrant”. He had also been informed that he had been detained with a view to his deportation and that this was imminent. Further, he had been informed of his right, under the Law on the Rights of Persons who are Arrested and Detained (Law no. 163(1)/2005 ), to contact a lawyer of his own choice (see paragraph 93 above). As a result the applicant had been able to appoint a lawyer and apply to the Court for an interim measure. In any event, the Government considered that in view of the identification process at the ERU headquarters, during which the police had asked the applicant for his identity papers and questioned him about his immigration status, the reasons for his arrest and detention must have been evident to him.", "225. In addition, the Government noted that a letter had been prepared in English by the Civil Registry and Migration Department informing the applicant of the authorities ’ decision to deport him and the reasons for that decision. The letter also informed the applicant that his temporary residence permit had been revoked and that he had the right to be represented before the authorities, to seek the services of an interpreter and to express possible objections to his deportation. The applicant had, however, refused to sign and receive the letter (see paragraph 44 above).", "226. The Government did not make any submissions as to whether the applicant had been notified on 20 August 2010 of the new deportation and detention orders and, consequently, the change of the legal basis of his detention (see paragraph 183 above).", "2. The Court ’ s assessment", "(a) General principles", "227. The Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that anyone who has been arrested should know why he is being deprived of his liberty. This is a minimum safeguard against arbitrary treatment. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 anyone who is arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed are sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182). Anyone entitled to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the reasons relied on to deprive him of his liberty (see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A). Further, if the grounds for detention change, or if new relevant facts arise concerning the detention, a detainee has a right to this further information (see X. v. the United Kingdom, no. 6998/75, Commission ’ s report of 16 July 1980, § 105, Series B no. 41).", "228. The constraints of time imposed by the notion of promptness will be satisfied where the reasons for the arrest are provided within a few hours of arrest (see Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999, and Fox, Campbell and Hartley, cited above, § 41 ). A violation was found by the Court where seventy-six hours elapsed before the applicants were informed of the reasons of detention ( Saadi, §§ 55-56, cited above; see also Shamayev and Others v. Georgia and Russia, § 416, cited above, where the Court found a violation in respect of a four-day delay; and Rusu v. Austria, no. 34082/02, § 43, 2 October 2008 in respect of a ten-day delay).", "229. As regards the manner of communicating the reasons for the arrest, Article 5 § 2 does not require the reasons to be given in writing to the detained person or otherwise in a particular form ( see Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011, and X. v. Germany, no. 8098/77, Commission decision of 13 December 1978, DR 16, p. 111). Further, the reasons may be provided or become apparent in the course of post-arrest interrogations or questioning (see Kerr, cited above; Murray v. the United Kingdom, 28 October 1994, § 77, Series A no. 300 ‑ A; and Fox, Campbell and Hartley, § 41, cited above).", "230. It should also be noted that when a person is arrested with a view to extradition, the information given may be even less complete (see Kaboulov v. Ukraine, no. 41015/04, §§ 143-144, 19 November 2009, with further references; Ryabikin v. Russia (dec.), no. 8320/04, 10 April 2007; and K. v. Belgium, no. 10819/84, Commission decision of 5 July 1984, DR 38, p. 230). A similar approach has been taken in deportation cases ( see, for example, Kane, cited above).", "(b) Application to the present case", "231. In the present case on 11 June 2010 the applicant, along with the other protesters, was taken to the ERU headquarters and kept there for identification purposes. His detention continued on the basis of deportation and detention orders issued on the same day which remained in force until 20 August 2010. New orders were then issued on the latter date, changing the grounds for the applicant ’ s detention.", "232. In view of the above, the Court considers that the applicant ’ s complaint under this provision is twofold.", "233. First of all, the Court has to examine whether the applicant was informed of the reasons for his detention on 11 June 2010. In this respect, the Court notes that the parties differ as to the exact date when the applicant found out about the reasons for his detention. On the one hand, the applicant claimed that he had not been informed orally of the grounds for his arrest and detention until 14 June 2010, that is, after more than seventy-two hours. He also stated in that connection that he had not received any information in writing. According to the Government, on the other hand, the applicant had been informed orally on 11 June 2010, once his identity had been checked, of the grounds for his arrest and detention as well as the fact that he was facing imminent deportation. They also claimed that in any event, these grounds must have become apparent to him during the identification procedure. As to the written reasons, they stated that attempts had also been made to serve the applicant with the relevant letter.", "234. The Court observes that upon his transfer to the ERU headquarters the applicant, along with the rest of the protesters, underwent an identification procedure which was aimed at ascertaining whether any of them were staying in Cyprus unlawfully. The Court has no reason to doubt, in the circumstances, that the applicant was informed at the time that he had been arrested on the ground of unlawful stay or that he at least understood, bearing in mind the nature of the identification process, that the reason for his arrest and detention related to his immigration status. In this connection, the Court notes that the applicant filed a Rule 39 request, along with a number of other protesters, the very next day, seeking the suspension of their deportation. A reading of this request indicates that they were all aware of the fact that they were detained for the purpose of deportation.", "235. The foregoing considerations are sufficient to enable the Court to conclude that the requirements of Article 5 § 2 of the Convention were complied with.", "236. There has accordingly been no violation of this provision as regards the first part of the applicant ’ s complaint.", "237. The second issue under this provision concerns the notification of the applicant of the new grounds for his detention on 20 August 2010. However, having regard to its findings under Article 5 § 1 of the Convention pertaining to the applicant ’ s detention on this new basis (see paragraphs 2 11-216 above), the Court considers that it is not necessary to examine this part of the case under Article 5 § 2 as well.", "VI. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 4 TO THE CONVENTION", "238. Lastly, the applicant complained of a violation of Article 4 of Protocol No. 4 in that the authorities were going to deport him and others collectively without having carried out an individual assessment and examination of his case. This provision provides as follows:", "“Collective expulsion of aliens is prohibited.”", "A. Admissibility", "239. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "240. The applicant, relying on the Čonka judgment (cited above), submitted that he had been the subject of a collective expulsion operation. In his view, the intention of the authorities had been to deal with a group of individuals, namely Syrian Kurds, collectively. This had been evident from all the circumstances of the case. The relevant meetings that had been held by the authorities concerned the handling of the situation of Syrian Kurdish failed asylum - seekers. The Minister of the Interior had given instructions to proceed with the deportation of Syrian Kurdish failed asylum-seekers with the exception of those who were Ajanib or Mahtoumeen. The police had been instructed to use discreet methods of arrest and execute the deportation orders starting with the leaders of the protest. As a result, the police had carried out an operation on 11 June 2010 against the whole group of protesters, including women and children. According to the Government only those whose asylum applications had still been pending were released. The rest had been kept in detention pending deportation. However, in reality, the asylum procedure had not been completed for the applicant as well as a number of other protesters whom the Government had intended to deport. If it had not been for the application of Rule 39 by the Court they would all have been deported. In fact, some of the protesters had been released by the authorities following the application of Rule 39 and had had their deportation orders annulled. The applicant also noted that the authorities had issued deportation orders against stateless Syrian Kurds and that some of the asylum-seekers concerned had had their asylum applications dismissed purely on procedural grounds without having benefited from an examination of the merits of their claim.", "241. The applicant further pointed out that everyone had been arrested at the same time and had been informed orally of the same thing, namely, that they would be deported. The letters prepared by the authorities had been couched in identical terms and had therefore just been a formality. The same could be said for a number of the letters sent, requesting the individuals concerned to make arrangements to depart from Cyprus, as they had been issued just before the operation was carried out or just after and, in one case, even after the person in question had been sent back to Syria.", "242. Consequently, it could not be said in the circumstances that an individual examination of each case had taken place. The applicant submitted therefore that all the elements indicated that the authorities had carried out a collective expulsion operation in violation of Article 4 of Protocol No. 4.", "(b ) The Government", "243. The Government submitted that the authorities had carried out a detailed individual examination of the immigration status of all the protesters in order to ascertain whether or not they were staying in the Republic unlawfully. Letters proposing detention and deportation had been issued on the same day and separate deportation and detention orders had then been issued against each person. Although the instructions given by the Minister of the Interior to the authorities had been that the deportation of Kurdish failed asylum-seekers from Syria should go ahead in the normal way, these instructions could not have been enforced without the issuing of deportation and detention orders. The latter had been issued on the ground of unlawful stay and not on the basis of the aforementioned instructions. The authorities had already been searching for a number of people who were among the protesters and had been staying in Cyprus unlawfully. Some of them had already been asked to leave the country following the rejection of their asylum applications.", "244. The authorities would have therefore proceeded in any event to deport these individuals once traced, even if the Minister had not given the relevant instructions. The Government therefore maintained that it had acted in compliance with Article 4 of Protocol No. 4.", "2. The Court ’ s assessment", "(a) General principles", "245. According to the well-established case ‑ law of the Commission and the Court, collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure of the competent authority compelling aliens, as a group, to leave the country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien in the group ( see, for example, Hirsi Jamaa and Others v. Italy, [GC], no. 27765/09, §§ 166-167, ECHR 2012; Čonka, cited above; § 59, Ghulami v. France (dec), no. 45302/05, 7 April 2009; Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts); Davydov v. Estonia (dec), no. 16387/03, 31 May 2005; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; A. and Others v. the Netherlands, no. 14209/88, Commission decision of 16 December 1988; O. and Others v. Luxembourg, no. 7757/77, Commission decision of 3 March 1978; K.G. v. the F.R.G ., no. 7704/76, Commission decision of 1 March 1977; and Henning Becker v. Denmark, no. 7011/75, Commission decision of 3 October 1975). It can be derived from this case-law that the purpose of Article 4 of Protocol No. 4 is to prevent States from removing certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority (see Hirsi, cited above, §177 ).", "246. The fact, however, that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see the judgments in Hirsi, § 184 and Sultani, § 81, both cited above; the Court ’ s decisions in Ghulami and Andric, both cited above; and the Commission ’ s decisions in Tahiri v. Sweden, no. 25129/94, decision of 11 January 1995 and B. and others v. the Netherlands, no. 14457/88, decision of 16 December 1988).", "247. Moreover, there will be no violation of Article 4 of Protocol No. 4 if the lack of an expulsion decision made on an individual basis is the consequence of an applicant ’ s own culpable conduct (see Berisha and Haljiti v. “the former Yugoslav Republic of Macedonia”, no. 18670/03, decision of 16 June 2005, where the applicants had pursued a joint asylum procedure and thus received a single common decision, and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011, where the applicants had refused to show their identity papers to the police and thus the latter had been unable to draw up expulsion orders in the applicants ’ names).", "248. The Court observes that, to date, it has found a violation of Article 4 of Protocol No. 4 in only two cases. First, in Čonka, which concerned the deportation of Slovakian nationals of Roma origin from Belgium to Slovakia, the Court found a breach because the procedure followed by the authorities did not enable it to eliminate all doubt that the expulsion might have been collective. This view was taken on the grounds that the applicants ’ arrest and consequent expulsion was ordered for the first time in a decision of 29 September 1999 on a legal basis unrelated to the requests for asylum, and in view of the large number of people of the same origin who had suffered the same fate as the applicants. The Court added that the doubt was reinforced by a series of factors:", "“ ... firstly, prior to the applicants ’ deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation ...; secondly, all the aliens concerned had been required to attend the police station at the same time; thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.”", "249. In these circumstances, the Court concluded that the procedure followed by the Belgian authorities had not afforded sufficient guarantees ensuring that the personal circumstances of each of those concerned had been genuinely and individually taken into account (§ 63).", "250. The Court considered that the measures taken on 29 September 1999 had to be seen in isolation from the earlier decisions regarding the asylum procedure in which the applicants ’ individual circumstances had been examined and which, according to the minority view, provided sufficient justification for the expulsion (see the separate opinions of Judge Velaers and Jungwiert joined by Judge Kūris).", "251. The recent case of Hirsi (cited above, §§ 166-186 ) concerned the return of migrants, intercepted on the high seas by Italian naval vessels, to Libya, which was the country of their departure. The Court came without difficulty to the conclusion that there had been a clear violation of Article 4 of Protocol No. 4. It first ruled on the complicated issue of the extraterritorial applicability of Article 4 of Protocol No. 4 which arose in that case. Once it had found that this provision was applicable, the violation was self-evident, as the transfer of the applicants to Libya had been carried out without any form of examination of each applicant ’ s individual situation. It was not disputed that the applicants had not undergone any identification procedure by the Italian authorities, who restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers. In the Court ’ s view this was sufficient to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination (§§ 185-186).", "(b) Application of the above principles", "252. In the instant case, the Court notes that an identification procedure in respect of the 149 Syrian Kurd protesters was carried out on 11 June 2010 at the ERU headquarters. Upon arrival at the headquarters registration took place and the status of each person was then examined using computers which had been specially installed the day before. According to the Government, this procedure revealed that seventy-six adults, along with their thirty children, were staying in the Republic unlawfully after having had their asylum applications rejected or their files closed. In this connection, the Court observes that it is clear from the information before it that their asylum applications had been dealt with on an individual basis over a period of more than five years. For those in respect of which the asylum procedure had been completed, the asylum applications had either been dismissed after an examination of their personal circumstances and any evidence they had provided or the files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals individually examined and dismissed. Separate letters had been sent out by the asylum authorities to the individuals concerned, informing them of the relevant decisions.", "253. Deportation and detention orders had already been issued in respect of some of the persons concerned. Orders against the remainder were issued on 11 June 2010. The authorities had carried out a background check with regard to each person before issuing the orders and separate deportation and detention orders were issued in respect of each person. Individual letters were also prepared by the Civil Registry and Migration Department informing those detained of the authorities ’ decision to detain and deport them.", "254. It is clear from the above that all those concerned did have an individual examination of their personal circumstances. As a result of this examination some of the persons arrested were allowed to return home as their immigration status was found to be in order and thus their presence on Cypriot territory was lawful. In these circumstances, the fact that all the persons concerned were taken together to the ERU headquarters and that the authorities decided to deport them in groups did not render their deportation a collective measure within the meaning attributed to that term by the Court ’ s case-law. Similarly, the fact that the deportation orders and the corresponding letters were couched in formulaic and, therefore, identical terms and did not specifically refer to the earlier decisions regarding the asylum procedure is not itself indicative of a collective expulsion. What is important is that every case was looked at individually and decided on its own particular facts (see Andric, cited above ). Although not expressly stated in the deportation orders and letters, the decision to deport was based on the conclusion that the person concerned was an illegal immigrant following the rejection of his or her asylum claim or the closure of the asylum file. Although a mistake was made in relation to the status of some of the persons concerned, including that of the applicant (see paragraphs 58 and 134 above) this, while unfortunate, cannot be taken as showing that there was a collective expulsion.", "255. In view of the foregoing, the Court is not persuaded that the measure taken by the authorities reveals the appearance of a collective expulsion within the meaning Article 4 of Protocol No. 4. There has therefore not been a violation of this provision.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "256. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "257. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.", "258. The Government contested this claim in so far as it concerned Articles 2 and 3 of the Convention as the applicant had not been deported. They also considered that the claim was excessive.", "259. Having regard to the nature of the violations found in the present case and the relevant case-law, the Court, ruling on an equitable basis as required under Article 41, awards the amount claimed by the applicant under this head in full.", "B. Costs and expenses", "260. The applicant also claimed EUR 1,700 plus VAT for costs and expenses incurred before the Court, less the sum granted as legal aid by the Council of Europe. In this respect he submitted that this was the amount agreed upon with his representative and it represented the sum normally awarded for costs by the Supreme Court in successful recourse proceedings.", "261. The Government contested the applicant ’ s claim and maintained that it was excessive.", "262. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant has failed to provide any supporting documents – such as itemised bills or invoices – substantiating his claim (Rule 60 §§ 1 and 2 of the Rules of Court). The Court accordingly makes no award under this head.", "C. Default interest", "263. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant, allegedly a Sierra Leone national, was born in 1983 and was detained at Safi Barracks at the time of the introduction of the application.", "A. Background to the case", "7. The applicant entered Malta in an irregular manner by boat on 8 April 2011. Upon arrival, he was arrested by the police and presented with a document containing both a Return Decision and a Removal Order in view of his presence in Malta as a prohibited immigrant in terms of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta). He was defined as such owing to his entry into Malta in an irregular manner and in consideration of the fact that he did not have sufficient means to support himself. The Return Decision informed the applicant of the possibility to apply for a period of voluntary departure. The lower half of the same document contained a Removal Order based on the rejection of the applicant ’ s request for a period of voluntary departure. It noted that the request had not been acceded to for the following reasons: the risk that the applicant might abscond; the fact that his application for legal stay was considered to be manifestly unfounded or fraudulent; and the fact that he was considered to be a threat to public policy, public security or national security (see paragraph 27 below).", "8. In fact, the applicant never actually made a request for a voluntary departure period, since the rejection was, as explained above, automatically presented to him with the information regarding the possibility of making such a request. The applicant was never informed of the considerations leading to this decision or given any opportunity to present information, documentation and/or other evidence in support of a possible request for a voluntary departure period.", "9. The applicant was further informed, through the joint Return Decision and Removal Order, of his right to appeal against the Decision and Order before the Immigration Appeals Board (“ the IAB”) within three working days. No further information was provided on the appeals procedure, including the availability of legal assistance; the latter assertion was denied by the Government.", "10. On the basis of the Return Decision and Removal Order, and in accordance with the Immigration Act, the applicant was detained in Safi Barracks.", "B. Asylum proceedings", "11. On 14 April 2011, whilst in Safi Barracks, the applicant submitted the Preliminary Questionnaire, the first stage of his application for asylum in Malta.", "12. On 31 December 2011 the applicant ’ s asylum application was rejected by the Office of the Refugee Commissioner, who considered that the claim as presented failed to meet the criteria for recognition of refugee status.", "13. On 24 January 2012 the applicant appealed to the Refugee Appeals Board. The parties presented submissions on 29 March 2012.", "14. On 2 April 2012 the Refugee Appeals Board rejected the applicant ’ s appeal, thereby definitively closing the asylum procedure almost twelve months after his arrival in Malta.", "C. Proceedings challenging the legality of detention", "15. In the meantime, pending the above asylum proceedings, the applicant lodged an application with the IAB on 28 June 2011 in order to challenge the legality of his detention in terms of the Immigration Act. The application was based on Article 5 § 1 of the Convention and Regulation 11(10) of the Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations (Legal Notice 81 of 2011, hereinafter “LN 81” ) ( see “ Relevant domestic law ” below). In his application the applicant argued that the decision to detain him, as well as his ongoing detention, were contrary to the law. With regard to the original decision to detain him, the applicant argued that, contrary to the requirements of Regulation 11(8) of LN 81, when he was presented with the Return Decision and Removal Order no assessment had been made as to the possibility of exploring “other sufficient and less coercive measures”. Furthermore, in deciding to detain him, the responsible authorities had decided a priori and without an individual assessment of his situation that he presented a risk of absconding and that he was avoiding or hindering the return or removal procedure. Moreover, the decision was taken without the applicant having had an opportunity to make a request for voluntary departure. The applicant further argued that his ongoing detention was also contrary to the law because once he had presented his asylum application in April 2011, return procedures could not be commenced or continued in his regard under Regulation 12 of the Procedural Standards in Examining Applications for Refugee Status Regulations (Legal Notice 243 of 2008, hereinafter “LN 243” ) (see “ Relevant domestic law ” below ).", "16. On 27 September 2011 the Immigration Police responded to the applicant ’ s application before the IAB; this was followed by further submissions by the applicant. On 22 November 2011 the IAB issued a decree requesting the parties to submit further information on specific queries raised by it. The applicant made further submissions highlighting the delay that was being created in the proceedings, and final submissions were also made by the Immigration Police.", "17. On 5 July 2012, more than a year after the applicant ’ s challenge, the IAB rejected his application. It noted that, despite the fact that, according to Regulation 11 (1) of LN 81, Part IV of those Regulations did not apply to persons who were apprehended or intercepted by the competent authorities in connection with the irregular crossing by sea or air of the external border of Malta and who did not subsequently obtain an authorisation or a right to stay in Malta, the applicant had obtained the right to stay (“ joqgħod ”) in Malta on lodging his application for asylum. Indeed it had been correct to rely on Regulation 12(1) of LN 243, which stated that an individual had the right to enter or remain on the island pending a decision on his asylum request. In the present case, that situation had applied to the applicant when he instituted his challenge before the IAB. In the applicant ’ s case, had the asylum request still been pending, Section IV of LN 81 would in fact have been applicable, in particular in so far as an individual could not be kept in detention unless return proceedings were under way or he or she presented a risk of absconding. However, the situation had changed, given that on 2 April 2012 the applicant ’ s asylum request had been rejected by a final decision. The latter implied that Section IV of LN 81 was no longer applicable to the applicant and thus the IAB could no longer decide on the request in terms of Regulation 11(8) of LN 81. Moreover, the applicant was not arguing the illegality of his detention on the basis of its length. In any event the IAB was not competent to decide whether there had been a breach of Article 5 of the Convention.", "D. Criminal proceedings", "18. While the above procedures were pending, on 16 August 2011, a riot broke out at Safi Barracks, resulting in a number of detained migrants, police officers and soldiers of the Armed Forces of Malta being injured. That same day, twenty-three migrants were arrested and charged in court in relation to the riot. The applicant was amongst the persons arrested and, together with the others, was accused of a number of offences including damage to private property, use of violence against public officers, refusal to obey lawful orders and breach of public peace and good order. The arrested men, including the applicant, were taken to Corradino Correctional Facility to await the outcome of the criminal proceedings.", "19. The following day, on 17 August 2011, the Court of Magistrates confirmed that the arrest of the migrants, including the applicant, was justified and in accordance with the law. They were remanded in custody.", "20. On 30 January 2012 the Court of Magistrates granted the applicant bail, under the terms of which he was released from Corradino Correctional Facility and returned to Safi Barracks.", "E. Latest information", "21. The applicant was released from detention in Safi Barracks on 21 March 2013, following 546 days of detention in an immigration context. The criminal proceedings in relation to the riot at Safi Barracks were still pending.", "22. On an unspecified date (around January 2013), in an effort to make arrangements for the deportation of the applicant, the authorities interviewed him in the presence of a representative from the Consulate of the Republic of Sierra Leone. The latter, by a communication of 11 February 2012, informed the Maltese authorities that the applicant did not hail from Sierra Leone and that they could therefore not provide further assistance." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Immigration Act", "23. Immigration and asylum procedures are mainly regulated by the Immigration Act (“the Act”), Chapter 217 of the Laws of Malta. Article 5 of the Act defines the term “ prohibited immigrant ” and, in so far as relevant, reads as follows:", "“ (1) Any person, other than one having the right of entry, or of entry and residence, or of movement or transit under the preceding Parts, may be refused entry, and if he lands or is in Malta without leave from the Principal Immigration Officer, he shall be a prohibited immigrant.", "(2) Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he was granted a residence permit, a person shall, unless he is exempted under this Act from any of the following conditions or special rules applicable to him under the foregoing provisions of this Act, be a prohibited immigrant also -", "( a ) if he is unable to show that he has the means of supporting himself and his dependants (if any) or if he or any of his dependants is likely to become a charge on the public funds; or ... ”", "24. Articles 6 and 9 regarding the powers of the Principal Immigration Officer in granting entry, and the relevant procedure, read as follows:", "Article 6", "“ (1) Without prejudice to any rights arising from the preceding Parts, for the purposes of this Act, the Principal Immigration Officer may –", "...", "(b) grant leave to land or leave to land and remain to any other person arriving in Malta, under such conditions and for such period as the Principal Immigration Officer may deem proper to establish;", "... ”", "Article 9", "“ (1) Without prejudice to any regulations made under Part III of this Act, leave to land or to land and remain in Malta shall be signified either by a written permit delivered to, or by an appropriate endorsement on the passport of, the person concerned, but the conditions attached to such leave may be contained in a separate document delivered to such person. ”", "25. Article 10 of the Act regarding temporary detention reads, in so far as relevant, as follows:", "“ (1) Where leave to land is refused to any person arriving in Malta on an aircraft ...", "(2) Where leave to land is refused to any person arriving in Malta by any other means, such person at his own request may, with the leave of the Principal Immigration Officer, be placed temporarily on shore and detained in some place approved by the Minister and notified by notice in the Gazette:", "Provided that he shall be returned to the vessel by which he is to leave Malta immediately that he makes a request to that effect or that the Principal Immigration Officer so directs, whichever is the earlier.", "(3) Any person, while he is detained under sub-article (1) or (2), shall be deemed to be in legal custody and not to have landed.”", "26. Article 14 of the Act, in so far as relevant, reads as follows:", "“(1) If any person is considered by the Principal Immigration Officer to be liable to removal as a prohibited immigrant under any of the provisions of article 5, the said Officer may issue a removal order against such person who shall have a right to appeal against such order in accordance with the provisions of article 25A: ...", "(2) Upon such order being made, such person against whom such order is made, shall be detained in custody until he is removed from Malta.", "Provided that if the person in respect of whom an expulsion order has been made is subject to criminal proceedings for a crime punishable with imprisonment or is serving a sentence of imprisonment, the Minister may give such directions as to whether the whole or part of the sentence is to be served before the expulsion of such person from Malta, and, in default of such directions, such person shall be removed after completion of the sentence ”", "27. In practice, on being apprehended prohibited immigrants are issued with a Return Decision and a Removal Order (on the same sheet of paper), in accordance with Article 14 of the Act. The document consists of a standard - format text which, in the applicant ’ s case, read as follows:", "RETURN DECISION", "“ It transpires that you are a prohibited immigrant by virtue of Article 5 of the Immigration Act, Chapter 217, because you", "entered Malta illegally and have no means of subsistence", "Therefore, by virtue of the powers vested in me as the Principal Immigration Officer by Regulation 3 of Legal Notice 81 of 2 011, I am issuing this return decision and therefore terminating your stay. You have the right to apply for an appropriate period of voluntary departure", "REMOVAL ORDER", "This Return Decision is accompanied by a Removal Order in accordance with the same regulation since the request for a period of voluntary departure has not been acceded to for the following reasons,", "a) there is a risk that you may abscond", "b) your application for legal stay is considered as manifestly unfounded or fraudulent,", "c) you are considered to be a threat to public policy, public security or national security", "By virtue of regulation 7 of the above mentioned Legal Notice an entry ban will be issued against you and this shall remain valid for a period of five years and is subject to renewal", "You have the right to appeal from this Decision/Order/Entry Ban to the Immigration Appeals Board within three working days at the Board ’ s Registry, Fort St Elmo, Valletta ”", "28. An “irregular” immigrant is entitled to apply for recognition of refugee status by means of an application (in the form of a Preliminary Questionnaire) to the Commissioner for Refugees within two months of arrival. While the application is being processed, in accordance with Maltese policy, the asylum seeker will remain in detention for a period of up to eighteen months, which may be extended if, on rejection of the application, he or she refuses to cooperate in respect of his or her repatriation.", "29. Article 25A of the Act concerns the appeals and applications ( lodged by virtue of the provisions of the Act or regulations made thereunder, or by virtue of any other law) to be heard and determined by the Immigration Appeals Board ( “ the Board ” ). Article 25A reads, in so far as relevant, as follows:", "“ (5) Any person aggrieved by any decision of the competent authority under any regulations made under Part III, or in virtue of article 7 [residence permits], article 14 [removal orders] or article 15 [responsibility of carriers] may enter an appeal against such decision and the Board shall have jurisdiction to hear and determine such appeals.", "(6) During the course of any proceedings before it, the Board, may, even on a verbal request, grant provisional release to any person who is arrested or detained and is a party to proceedings before it, under such terms and conditions as it may deem fit, and the provisions of Title IV of Part II of Book Second of the Criminal Code shall, mutatis mutandis apply to such request.", "(7) Any appeal has to be filed in the Registry of the Board within three working days from the decision subject to appeal: ...", "(8) The decisions of the Board shall be final except with respect to points of law decided by the Board regarding decisions affecting persons as are mentioned in Part III, from which an appeal shall lie within ten days to the Court of Appeal (Inferior Jurisdiction).", "(9) The Board shall also have jurisdiction to hear and determine applications made by persons in custody in virtue only of a deportation or removal order to be released from custody pending the determination of any application under the Refugees Act or otherwise pending their deportation in accordance with the following subarticles of this article.", "(10) The Board shall only grant release from custody under subarticle (9) where in its opinion the continued detention of such person is taking into account all the circumstances of the case, unreasonable as regards duration or because there is no reasonable prospect of deportation within a reasonable time:", "Provided that where a person, whose application for protection under the Refugees Act has been refused by a final decision, does not co-operate with the Principal Immigration Officer with respect to his repatriation to his country of origin or to any other country which has accepted to receive him, the Board may refuse to order that person ’ s release.", "(11) The Board shall not grant such release in the following cases:", "(a) when the identity of the applicant including his nationality has yet to be verified, in particular where the applicant has destroyed his travel or identification documents or used fraudulent documents in order to mislead the authorities;", "(b) when elements on which any claim by applicant under the Refugees Act is based, have to be determined, where the determination thereof cannot be achieved in the absence of detention;", "(c) where the release of the applicant could pose a threat to public security or public order.", "(12) A person who has been released under the provisions of subarticles (9) to (11) may, where the Principal Immigration Officer is satisfied that there exists a reasonable prospect of deportation or that such person is not co-operating with the Principal Immigration Officer with respect to his repatriation to his country of origin or to another country which has accepted to receive him, and no proceedings under the Refugees Act are pending, be again taken into custody pending his removal from Malta.", "(13) It shall be a condition of any release under subarticles (9) to (12) that the person so released shall periodically (and in no case less often than once every week) report to the immigration authorities at such intervals as the Board may determine. ”", "B. Relevant subsidiary legislation", "30. Part IV of Subsidiary Legislation 217.12, Common Standards and Procedures for Returning Illegally Staying Third-Country Nationals Regulations, Legal Notice 81 of 2011 ( transposing Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in member States for returning illegally staying third-country nationals) reads, in so far as relevant, as follows:", "Regulation 11", "“ (1) The provisions of Part IV shall not apply to third country nationals who are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by sea or air of the external border of Malta and who have not subsequently obtained an authorisation or a right to stay in Malta.", "(2) A return decision, an entry-ban decision and a removal order shall be issued in writing and shall contain reasons in fact and in law and information on legal remedies:", "Provided that the reasons in fact may be given in a restrictive way where the withholding of information is regulated by law, in particular where the disclosure of information endangers national security, public policy, and the prevention, detection, investigation and prosecution of criminal offences.", "(3) A return decision shall be issued in a standard form and general information as regards such form shall be given in at least five languages which third-country nationals may reasonably be supposed to understand.", "(4) The Board shall review decisions related to return on application by the third ‑ country national as referred to in subregulation (2), and may temporarily suspend their enforcement.", "(5) For the purposes of sub-regulation (4) a legal adviser shall be allowed to assist the third-country national and, where entitled to, free legal aid shall be provided to the third-country national.", "(6) The Principal Immigration Officer shall provide, upon request, a written or oral translation of the main elements of a return decision and information on the legal remedies in a language the third-country national may reasonably be supposed to understand. ( ... )", "(8) Where a third-country national is the subject of return procedures, unless other sufficient and less coercive measures are applicable, the Principal Immigration Officer may only keep him in detention in order to carry out the return and removal procedure, in particular where:", "( a ) there is a risk of absconding; or", "( b ) the third-country national avoids or hinders the return or removal procedure:", "Provided that the detention shall be for a short period and shall subsist as long as the removal procedure is in progress and is executed with due diligence.", "(9) Detention shall be a consequence of the removal order issued by the Principal Immigration Officer and it shall contain reasons in fact and in law.", "(10) The third-country national subject to the provisions of subregulation (8) shall be entitled to institute proceedings before the Board to contest the lawfulness of detention and such proceedings shall be subject to a speedy judicial review.", "(11) Where the third-country national is entitled to institute proceedings as provided in sub-regulation (10) he shall immediately be informed about such proceedings.", "(12) The third country-national shall be immediately released from detention where in the opinion of the Board such detention is not lawful.”", "31. Regulation 12 of the Procedural Standards in Examining Applications for Refugee Status Regulations (Legal Notice 243 of 2008), Subsidiary Legislation 420.07, provides, in so far as relevant, as follows:", "“(1) Notwithstanding the provisions of any other law to the contrary, and except where a subsequent application will not be further examined, or where an applicant is to be surrendered or extradited as appropriate to another Member State pursuant to obligations in accordance with a European Arrest Warrant or otherwise, or to a third country or to international criminal courts or tribunals, an applicant shall not be removed from Malta before his application is finally determined and such applicant shall be allowed to enter or remain in Malta pending a final decision of his application.", "(2) An applicant for asylum shall -", "(a) not seek to enter employment or carry on business unless with the consent of the Minister;", "(b) unless he is in custody, reside and remain in the places which may be indicated by the Minister;", "(c) report at specified intervals to the immigration authorities as indicated by the Minister;", "(d) hand over all documents in his possession;", "(e) be subject to search and his oral statements may be recorded subject to the applicant being previously informed thereof;", "(f) be photographed and have his fingerprints taken: ”", "32. Subsidiary legislation 12.09, namely the Court Practice and Procedure and Good Order Rules, makes specific reference to constitutional cases. Rule 6 thereof reads as follows:", "“Once a case has been set down for hearing the court shall ensure that, consistently with the due and proper administration of justice, the hearing and disposal of the case shall be expeditious, and the hearing of the cause shall as far as possible continue to be heard on consecutive days, and, where this is not possible, on dates close to one another.”", "C. Relevant international texts", "33. The following are extracts of the relevant international reports and guidelines or recommendations relied on by the parties:", "1. Concluding observations of the UN Committee on the Elimination of Racial Discrimination Malta, l4 September 2011, paragraphs 13 ‑ 14;", "“13. While noting the large inflow of immigrants and efforts made by the State party to dealing therewith, the Committee is concerned about reports that their legal safeguards are not always guaranteed in practice. The Committee is also concerned about the detention and living conditions of immigrants in irregular situations in detention centres, in particular of women and families with children (art. 5).", "14. The Committee is concerned about the recurrence of riots (2005, 2008 and 2011) by detained immigrants against their detention conditions, for example at Safi Barracks, and about the reported excessive use of force to counter the riots. ”", "2. Amnesty International Report 2012: The State of the World ’ s Human Rights, 2012, page 231;", "“ During 2011, more than 1,500 people arrived by sea from either the Middle East or North Africa, returning to the levels seen in 2009. Immigration detention continued to be mandatory for anyone whom the authorities deemed to be a “prohibited immigrant”, and was often prolonged for up to 18 months.", "According to reports, conditions in both detention and open reception centres worsened as a consequence of the number of new arrivals, increasing the impact on detainees ’ mental and physical health.", "In March, the EU ’ s 2008 “Returns Directive” was transposed into domestic legislation. The Directive provided common standards and procedures in EU member states for detaining and returning people who stay in a country illegally. However, the domestic legislation excluded those who had been refused entry – or had entered Malta irregularly – from enjoying these minimum safeguards. The Directive would therefore not apply to the vast majority of those it was meant to protect. ”", "3. Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe following his visit to Malta from 23 to 25 March 2011, 9 June 2011, paragraphs 19-20;", "“19. At the end of their detention, migrants, including refugees, beneficiaries of subsidiary protection, asylum seekers and persons whose asylum claims have been rejected, are accommodated in open centres around Malta. Conditions prevailing in these centres vary greatly, with adequate arrangements reported in the smaller centres that cater for some vulnerable groups, such as families with children or unaccompanied minors, and far more difficult conditions in the bigger centres. As mentioned above, when the Commissioner ’ s visit took place the number of irregular arrivals had been very low for over 18 months and the 2011 arrivals from Libya had not yet started. As a result, the vast majority of migrants had moved out of the detention centres and were living in open centres, with the respective populations numbering at 49 and 2 231 respectively. The Commissioner visited the detention centre in Safi, and three open centres - the Hal-Far tent village, the Hangar Open Centre in Hal-Far and Marsa.", "20. At the time of the visit the material conditions in the Safi detention centre, where all 49 of the migrant detainees were kept, appeared to be considerably better than those in open centres. Although a number of issues remained to be addressed, including those regarding the detainees ’ access to a diversified diet and water other than from the tap, the premises visited, including the dormitories, toilets and showers had been recently refurbished. The only female detainee of the centre was accommodated in a separate facility. The Commissioner wishes to note however, that in accordance with the mandatory detention policy referred to above, most of the persons (approximately 1 100) who have arrived from Libya since his visit have been placed in detention centres. This is naturally bound to have a significant impact on the adequacy of the conditions in these centres.”", "4. Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 19 to 26 May 2008, 17 February 2011 ).", "“ 52. In accordance with Maltese policy on administrative detention of foreigners under aliens ’ legislation, all foreigners arriving illegally in Malta are still detained for prolonged periods, in the case of asylum seekers until such time as their request for refugee status is determined (normally 12 months) and for irregular immigrants for up to a maximum of 18 months. In practice, however, some may spend even longer periods in detention. The only declared exceptions to this general rule concern persons deemed to be vulnerable because of their age and/or physical condition, unaccompanied minors and pregnant women ...", "53. The situation found in the detention centres visited by the delegation had not substantially improved since the CPT ’ s previous visit in 2005. Indeed, many of the problems identified in the report on that visit still remain unresolved. In several parts of the detention centres, the combined effects of prolonged periods of detention in poor, if not very poor, material conditions, with a total absence of purposeful activities, not to mention other factors, could well be considered to amount to inhuman and degrading treatment.", "material conditions", "...", "60. At Safi Barracks Detention Centre, which at the time of the visit accommodated a total of 507 immigration detainees, living conditions for detainees had slightly improved in comparison to the situation observed by the CPT in 2005.", "At Warehouse No. 1, living conditions were less cramped than when last visited by the CPT, and the toilet facilities were new and clean. That said, the Committee has strong reservations as regards the use of converted warehouses to accommodate detainees. This should only be seen as a temporary - and short term - solution.", "B Block has been refurbished since the CPT ’ s last visit. The sanitary facilities have been renovated and a large exercise area is at the disposal of the immigration detainees. However, conditions were still difficult in certain rooms, where immigration detainees were sleeping on mattresses on the floor.", "Surprisingly, poor conditions of detention were observed in the new C Block. Living conditions were cramped, access to natural light was insufficient and ventilation very poor. Further, access to running water was limited, as well as access to hot water, the latter being unavailable for prolonged periods.", "In addition, the internal regulation in force at Safi Barracks provided for the compulsory closing of the doors in B and C Blocks every afternoon at 5 p.m., thereby preventing access to the outdoor yard. This exacerbated significantly the already far from ideal living conditions in these blocks. ”", "5. UNHCR Guidelines on Applicable Criteria and Standards on the Detention of Asylum Seekers and Alternatives to Detention (2012) – guideline 9.1 paragraph 49;", "“Because of their experience of seeking asylum, and the often traumatic event precipitating flight, asylum seekers may present with psychological illness, trauma, depression, anxiety, aggression and other physical, psychological and emotional consequences. Such factors need to be weighed in the assessment of the necessity to detain (see Guideline 4). Victims of torture and other serious physical, psychological or sexual violence also need special attention and should generally not be detained. ”", "6. Recommendation Rec(2003)5 of the Committee of Ministers to member states on measures of detention of asylum seekers (Adopted by the Committee of Ministers on 16 April 2003 at the 837th meeting of the Ministers ’ Deputies) – point 3 of the general provisions;", "“ The aim of detention is not to penalise asylum seekers. Measures of detention of asylum seekers may be resorted to only in the following situations:", "– when their identity, including nationality, has in case of doubt to be verified, in particular when asylum seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state;", "– when elements on which the asylum claim is based have to be determined which, in the absence of detention, could not be obtained;", "– when a decision needs to be taken on their right to enter the territory of the state concerned, or", "– when protection of national security and public order so requires. ”", "7. The Council of Europe ’ s Twenty Guidelines on Forced Return – CM2005(40) - Guideline 6;", "“A person may only be deprived of his/her liberty with a view to ensuring that a removal order will be executed, if this is in accordance with a procedure prescribed by law and if, after a careful examination of the necessity of deprivation of liberty in each individual case, the authorities of the host state have concluded that compliance with the removal order cannot be ensured as effectively by resorting to non-custodial measures such as supervision systems, the requirement to report regularly to the authorities, bail or other guarantee systems.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION", "34. The applicant complained that the Maltese legal system had not provided him with a speedy and effective remedy, contrary to Article 5 § 4 of the Convention. Despite slight changes in respect of the Immigration Appeals Board (“IAB”) following the Louled Massoud v. Malta judgment (application no. 24340/08, 27 July 2010), it had taken more than a year to determine his application. Any other remedies had already been found to be inadequate by the Court in the Louled Massoud judgment. The applicant relied on Article 5 § 4 of the Convention, which reads as follows:", "“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”", "35. The Government contested that argument.", "A. Admissibility", "36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "37. The applicant submitted that, as the Court had held in Louled Massoud, there was no effective domestic remedy for the purposes of Article 5 § 4 which he could undertake in order to challenge the lawfulness of his detention. Indeed, although the applicant had attempted a remedy, it had taken more than a year for the IAB to determine his claim.", "38. As to the constitutional redress proceedings, and particularly the request for hearing with urgency, the applicant noted that the two cases cited by the Government had been in the context of the enforcement of a return order concerning a child following wrongful removal under the relevant Maltese law incorporating the Hague Convention on the International Aspects of Child Abduction, and thus represented exceptional situations. Moreover, the Hague Convention explicitly mentioned a six week time- limit within which the courts must reach a decision. The applicant considered that it was uncertain whether such a request for hearing with urgency would be effective in other circumstances. He made reference to the application in the case of Tafarra Besabe vs Commissioner of Police et al (27/2007), which had been lodged in 2007 with a request to be treated with urgency and in April 2013 ( the date of writing) was still pending. According to the applicant, despite the rules regarding court practice and procedure mentioned by the Government, it transpired from the Maltese judgments database that constitutional applications which ended with a judgment on the merits (as opposed to those struck out or withdrawn) generally required over a year to be concluded. The applicant submitted that in 2011 approximately eighty applications had been lodged before the courts exercising constitutional jurisdiction and only fourteen had been decided at first instance in that same year; a further thirty-three were still pending at first instance at the time of writing. One case had been decided on appeal in that same year, nine had been decided on appeal in 2012, ten in 2013, and eight were still pending on appeal. The statistics (submitted to the Court ) were even worse for applications lodged in 2012. These clearly showed that as a rule constitutional redress proceedings were not determined within days. Indeed, according to the 2013 EU Justice Scoreboard, the Maltese judicial system was one of the systems with the longest delays among the Member States. The two cases mentioned by the Government underlined the limited applicability of the urgent procedure before the courts exercising constitutional jurisdiction, which were the final level of judicial proceedings. Moreover, given that the courts exercising constitutional jurisdiction reviewed points of law, they rarely entered into a detailed examination of the facts, which would have been done by the courts below; thus, it could not be said that the whole judicial process was determined during the period of weeks when the case was being heard before them under the urgent procedure.", "39. Moreover, in the present case, before lodging a complaint before the courts exercising constitutional jurisdiction, the applicant had to exhaust ordinary remedies, an action he had undertaken by instituting proceedings before the IAB. These, however, had lasted for over a year, a delay which itself was not compatible with the Convention.", "40. Lastly, the applicant submitted that, as a migrant, he had access to the constitutional courts in theory but not in practice. Although he had the right to request legal aid, no legal - aid lawyers regularly visited immigration detention centres to render their services or make known their availability. Nor was any explanation given to persons in the same situation as the applicant ’ s regarding their legal rights and the applicable procedures. The applicant ’ s only chance of instituting such proceedings was dependent on a small number of pro bono NGO lawyers.", "41. As to the Government ’ s submissions in respect of a bail application, the applicant submitted that the Government had failed to explain in what way this procedure was accessible to him, noting particularly that bail was usually granted in the course of appeals against removal orders and return decisions. In any event the granting of bail was subject to conditions such as the deposit of an amount usually in the region of EUR 1,000 and a guarantor who would provide subsistence and accommodation, conditions which were hardly ever met by immigrants reaching Malta by boat. Moreover, IAB practice showed that such bail was granted exclusively to persons having overstayed their visa to remain in Malta. Furthermore, a bail application was not intended to assess the legality of detention or to provide a remedy in the event that a violation was upheld.", "(b) The Government", "42. The Government submitted in particular that the applicant could have sought judicial review in respect of the lawfulness of his detention by instituting constitutional redress proceedings before the domestic courts, which had wide - ranging powers and could redress any Convention violation. As to the length of such proceedings the Government submitted that a mechanism was in place for such proceedings to be treated expeditiously. They firstly made reference to subsidiary legislation 12.09 namely, the Court Practice and Procedure and Good Order Rules, which emphasised the need for speedy resolution of such matters (see “Relevant domestic law ” above). Secondly, they noted that it was possible for an applicant to request that a case be treated, heard and concluded with urgency. The Government submitted two examples : Richard John Bridge vs Attorney General, where the case had been decided by two levels of jurisdiction over approximately a month and a half (from 6 July 2012 to 24 August 2012), and a second case, Michael Caruana vs Attorney General, which had been brought on 2 August and decided on 14 August 2012 (no appeal having been lodged), in the context of Hague Convention proceedings. In their further observations at a later stage in the case, the Government submitted a further two examples, namely Stacy Chircop vs Attorney General (4/2013) concerning a breach of fair - trial rights in ongoing criminal proceedings, which had been lodged on 22 January 2013 and decided at first instance on 8 February 2013 (no appeal lodged ), and Jonathan Attard vs the Commisioner of Police and the Attorney General in representation of the Government (13/2013), concerning complaints under Articles 5 and 6 of the Convention, which had been lodged on 14 February 2013, had been decided at first instance on 1 April 2013 and was ( in May 2013 ) pending on appeal before the Constitutional Court.", "43. The Government further noted that the statistical data submitted by the applicant did not reflect the subject matter and the complexity of the cases, nor did they refer to cases where hearing with urgency had been requested and granted. Similarly, in relation to the reference to the Tefarra Besabe case, the applicant had not proved that a request for hearing with urgency had been lodged in that case. The Government considered that delays were exceptional and not the rule, and that the EU Justice Scoreboard should be ignored by the Court as there were no guarantees of its accuracy; moreover, it had not referred to constitutional cases. It was also wrong to consider that constitutional proceedings did not assess the facts as this was often the case, given that the complaints differed from those debated before the ordinary courts.", "44. The Government strongly objected to the fact that the Court was allowing applicants in cases involving irregular immigrants to circumvent domestic remedies. They considered that this could only be done when there were no effective remedies, which was in their view clearly not the case, given the examples above. It further noted that in Louled Massoud the Court had erred in finding that constitutional redress proceedings were ineffective. They considered that the Court had reached that conclusion on the basis of incomplete information about the workings of that system with regard to requests for hearing with urgency. They requested the Court to act in accordance with the principle of subsidiarity and to let the domestic courts asses the evidence, allowing the Government to cross- examine witnesses.", "45. The Government further noted that legal aid was provided to prohibited immigrants at the appellate stage of their asylum application, as well as for the purposes of criminal proceedings and constitutional redress proceedings, together with appropriate facilities where they could meet such lawyers. Moreover, there was unlimited access to legal assistance provided by NGOs. The Government alleged that, had the applicant asked the detention centre staff for the services of a lawyer, he would have been provided with the services of a legal - aid lawyer. To substantiate their claim the Government submitted one example where a legal - aid lawyer had instituted legal proceedings on behalf of a person in detention ( Mourad Mabrouk vs Ministry of Justice and Home Affairs (39/2008) ).", "46. Albeit not under their submissions related to Article 5 § 4, in their objection of non- exhaustion of domestic remedies in respect of the applicant ’ s complaint under Article 5 § 1, the Government submitted that the applicant could have lodged an application for bail under Article 25A (6) of the Act. While such a remedy was usually used in the context of challenges to removal orders, Article 25A (9) did not exclude the possibility that such an application could be made in other circumstances. The Government considered that Article 25 A (10) addressed the applicant ’ s complaint and although sub- article (11) provided for exceptions, release could not be excluded completely – in particular, the prospects of success were greater if the applicant ’ s identity had been established. Again, such a procedure could have been accompanied by a request for hearing with urgency. The Government considered that what the applicant sought was his release and that the remedy in question could have provided that.", "47. Given that the remedies were adequate and accessible and would have had high prospects of success had the complaints been justified, the Government considered that there had been no violation of the provision in question.", "(c) The third - party intervener", "48. The International Commission of Jurists ( “ ICJ ” ), in their report (see paragraph 81 et seq. below), expressed concern at allegations heard from detainees that public lawyers did not always provide effective representation to detained migrants. It was suggested that lawyers sometimes spoke only very briefly to detainees and did not, or did not have time to, advise them in detail or gather sufficient information on their cases.", "49. Furthermore, in the case of Louled Massoud this Court had found that the IAB system did not constitute an effective remedy guaranteeing the detainee ’ s right under Article 5 § 4 to challenge his or her detention. The ICJ report considered that there was a need for substantial reform of the system of immigration appeals, by, among other things, entrusting to a court of law the task of reviewing in full the decisions taken by the executive immigration authorities or, at least, reviewing in full the IAB ’ s decision, with automatic suspensive effect on the execution of the expulsion.", "1. The Court ’ s assessment", "(a) General principles", "50. Under Article 5 § 4, an arrested or detained person is entitled to bring proceedings for a review by a court bearing upon the procedural and substantive conditions which are essential for the “lawfulness” of his or her detention (see Amie and Others v. Bulgaria, no. 58149/08, § 80, 12 February 2013 ). The notion of “lawfulness” under Article 5 § 4 of the Convention has the same meaning as in Article 5 § 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law, but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181, Louled Massoud v. Malta, no. 24340/08, § 39, 27 July 2010; and Rahmani and Dineva v. Bulgaria, no. 20116/08, § 75, 10 May 2012 ). Article 5 § 4 does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the lawful detention of a person according to Article 5 § 1 (see S.D. v. Greece, no. 53541/07, § 72, 11 June 2009; and Popov v. France, nos. 39472/07 and 39474/07, § 94, 19 January 2012 ).", "51. According to the Court ’ s case-law, Article 5 § 4 refers to domestic remedies that are sufficiently certain, otherwise the requirements of accessibility and effectiveness are not fulfilled. The remedies must be made available during a person ’ s detention with a view to that person obtaining a speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release (see Kadem v. Malta, no. 55263/00, § 41, 9 January 2003 and Raza v. Bulgaria, no. 31465/08, § 76, 11 February 2010 ). Indeed, Article 5 § 4, in guaranteeing arrested or detained persons a right to bring proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of that detention (see Musial v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II).", "(b) Application of these principles to the present case", "52. The Court notes that the courts exercising constitutional jurisdiction in the Maltese legal system would have been competent to examine the lawfulness of the applicant ’ s detention in the light of the Convention. However, the Court has also held on numerous occasions that constitutional proceedings in Malta are rather cumbersome for Article 5 § 4 purposes, and that lodging a constitutional application does not ensure a speedy review of the lawfulness of an applicant ’ s detention (see Sabeur Ben Ali v. Malta, no. 35892/97, § 40, 29 June 2000; Kadem, cited above § 53; Stephens v. Malta (no. 2), no. 33740/06, § 90, 21 April 2009; and Louled Massoud, cited above, § 45). Where an individual ’ s personal liberty is at stake, the Court has very strict standards concerning the State ’ s compliance with the requirement of a speedy review of the lawfulness of detention (see, for example, Kadem, cited above, §§ 44-45; Rehbock v. Slovenia ( no. 29462/95, § 82-86, ECHR 2000 ‑ XII, where the Court considered periods of seventeen and twenty-six days excessive for deciding on the lawfulness of the applicant ’ s detention ); and Mamedova v. Russia ( no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “ speediness ” requirement) ).", "53. The Court notes that the first two cases submitted by the Government refer to the specific context of Hague Convention proceedings, where, as also noted by the applicant, the courts are bound by a strict time ‑ limit established by law. The other two cases mentioned in their supplementary observations are more recent. One of them can be said to have been dealt with speedily, although it is unclear for what reason this was so, but in any case the Court notes that in that case no appeal had been lodged. On the other hand the second case (concerning Article 5 § 3 ) was still pending on appeal three months after it was lodged. Consequently, the only example submitted by the Government which could be of some relevance, bearing in mind the subject matter, itself fails to fulfil the speediness criterion required by Article 5 § 4.", "54. Moreover, this has to be seen against the background of the statistics supplied by the applicant. While it is true that those statistics failed to mention whether a request for hearing with urgency had been granted in any of the cases concerned, the Government failed to shed light on that matter. Likewise, the Government did not submit any details as to how often requests for hearing with urgency were granted, nor did they argue that requests for hearing with urgency in proceedings regarding the lawfulness of detention were, as a rule, acceded to by the courts exercising constitutional jurisdiction. It cannot be ignored that the example submitted by the applicant concerning the lawfulness of immigrants ’ detention and the conditions of such detention (as apparent from public information) was still pending six years after it was lodged. Against this background, little comfort can be found in the subsidiary legislation cited by the Government, which states that constitutional cases “ shall be expeditious”.", "55. It is clear from the above that the Government have not submitted any information or case-law capable of casting doubt on the Court ’ s prior conclusions as to the effectiveness of this remedy. In these circumstances, the Court remains of the view that, in the Maltese system, pursuing a constitutional application would not have provided the applicant with a speedy review of the lawfulness of his detention.", "56. As to the Government ’ s submission that the applicant could have obtained release by lodging an application for release (bail) under Article 25A of the Act, the Court sets out the following considerations.", "The Government made reference to both sub-article (6) and sub- article (9), seemingly considering them as one remedy to which sub - articles (10) and (11) applied. On reading the law the Court observes that it is unclear whether the provisions are independent : the first, sub- article (6), refers to provisional release and the second, sub- article (9), refers simply to “release from custody”. While it is clear that sub- articles ( 10 ) - ( 13 ) refer to release under sub -article (9), it is unclear whether they have any connection with sub ‑ article ( 6 ), the purpose of which remains vague in the absence of any appropriate explanations by the Government or the domestic case-law.", "In any event, the Court observes that both provisions deal solely with provisional release from detention. Indeed, sub-article ( 6 ) is explicit to that effect, while under sub-article (9) this conclusion transpires from the fact that, as clearly stated in sub-article ( 12 ), a decision granting release can be revoked.", "The Government considered that Article 25A (10) addressed the applicant ’ s complaint and that, although sub- article (11) provided for exceptions, release could not be excluded completely. The Court observes that release under the said provisions may be granted only if it is shown that the detention was unreasonable on account of its duration or if there is no prospect of deportation. It follows that such a remedy is not applicable to a person in the initial stages of detention, pending a decision on an asylum application, and in consequence cannot be considered as a remedy for persons in that situation.", "57. In so far as this remedy may have been available to the applicant at a later stage, namely after his application for asylum had been determined, the Court notes that, even assuming that it could have resulted in his temporary release (had the applicant not been excluded for the reasons mentioned below), it would not have provided for a formal assessment of the lawfulness of his detention as required under Article 5 § 4. The Government did not deny this, limiting themselves to considering that there was no distinction between such temporary release and a finding that the person ’ s detention was not lawful. The Court cannot agree. It suffices to mention two basic notions : ( a) if that were the case, in a criminal context there would be no purpose in having two separate provisions in the Convention, namely Article 5 § 3 and Article 5 § 4; and ( b) while a finding that a period of detention was unlawful allows an applicant to raise a claim under Article 5 § 5, a decision granting bail does not, given that it is granted or refused irrespective of the legality of the detention.", "58. However – even if one were to consider that a decision on provisional release which was dependent on whether the duration of the detention was excessive or on whether there was any prospect of deportation could in substance be considered as an informal assessment of lawfulness in view of the link with the requirements of the second limb of Article 5 § 1 (f) – the Court has already held such remedy to be ineffective. Indeed, in Louled Massoud ( cited above, § 44 ), the Court held that proceedings under Article 25 are limited in scope and offer no prospects of success for someone in the applicant ’ s situation (namely where the identity of the detainee, including his nationality, has yet to be verified). It is inconsistent for the Government to argue that despite the exceptions in sub ‑ article ( 11 ) the applicant ’ s release could not be excluded, given that the Government ’ s arguments under Article 5 § 1 revolve around the lack of cooperation by the applicant, his voluntarily misleading the authorities as to his identity and the threat he posed to national security and public order, all exceptions under the said sub-article. Moreover, in Louled Massoud the Court also held that such proceedings could not be considered to determine requests speedily as required by Article 5 § 4 of the Convention. The Government submitted no new examples capable of altering that conclusion, nor did they substantiate their argument that such proceedings could be heard with urgency. Indeed, the proceedings undertaken by the applicant to contest the lawfulness of his detention ( albeit under Regulation 11(10) of LN 81 and not Article 25A of the Act ) were also duly lodged before the same Board, and it took the IAB more than a year to determine the claim, only to find that the provision no longer applied at that stage and that it was not competent to assess any violation of Article 5. In the light of all this, the Court cannot but reiterate that, as they stand, proceedings before the IAB cannot be considered to determine requests speedily as required by Article 5 § 4 of the Convention.", "59. The foregoing considerations are sufficient for the Court to conclude that it has not been shown that the applicant had at his disposal an effective and speedy remedy under domestic law by which to challenge the lawfulness of his detention.", "60. Article 5 § 4 of the Convention has therefore been violated.", "61. The Court finds it appropriate to point out that, as the applicant and the third - party intervener have submitted, had these remedies been effective in terms of their scope and speed, issues in relation to accessibility might also arise, particularly in respect of constitutional court proceedings. The Court notes the apparent lack of a proper system enabling immigration detainees to have access to effective legal aid. Indeed, the fact that the Government were able to supply only one example of a detainee under the Immigration Act making use of legal aid – despite the thousands of immigrants who have reached Maltese shores and have subsequently been detained in the past decade and who, as submitted by the Government, have no means of subsistence – appears merely to highlight this deficiency. The Court notes that, although the authorities are not obliged to provide free legal aid in the context of detention proceedings ( see Lebedev v. Russia, no. 4493/04, § 84, 25 October 2007 ), the lack thereof, particularly where legal representation is required in the domestic context for the purposes of Article 5 § 4, may raise an issue as to the accessibility of such a remedy (see Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 141, 22 September 2009, and Amuur v. France, 25 June 1996, § 53 in fine, Reports of Judgments and Decisions 1996 ‑ III ).", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "62. The applicant complained that his detention from 8 April 2011 [ sic ] to 16 August 2011 and from 30 January 2012 to the date of his release did not fall within any of the situations provided for by Article 5 and, more particularly, that it had not been carried out to prevent his unauthorised entry into Malta or with a view to his deportation, given that he had been awaiting a decision on his asylum application and the consequent authorisation under the terms of Regulation 12 of LN 243. Without prejudice to the above, he contended that the Maltese authorities had not sought alternatives to his detention despite its length, and that his conditions of detention had been inadequate. Moreover, making reference to the case of Louled Massoud (cited above ), he noted that to date there were no procedural safeguards against arbitrary detention. He invoked Article 5 § 1 of the Convention, which in so far as relevant reads as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”", "63. The Government contested that argument.", "A. Admissibility", "64. The Government submitted that the applicant had failed to exhaust domestic remedies, in so far as he had neither made a request for bail before the IAB nor had he instituted constitutional redress proceedings.", "65. The applicant reiterated his submissions under Article 5 § 4 above.", "66. The Court has already held that the applicant did not have at his disposal an effective and speedy remedy by which to challenge the lawfulness of his detention (see paragraph 59 above). It follows that the Government ’ s objection must be dismissed.", "67. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "68. The applicant complained that his detention from 8 April 2011 [ sic ] to 16 August 2011 and from 30 January 2012 to 21 March 2 0 1 3 did not fall within any of the situations provided for by Article 5.", "69. In view of his asylum application and consequent authorisation to enter or remain in Malta in pursuance of Regulation 12 of LN 243, from the date of his presentation of the Preliminary Questionnaire (14 April 2011) his detention could not have been carried out to prevent his unauthorised entry into Malta or with a view to his deportation (given that his application for asylum was still pending). The applicant recalled Malta ’ s obligations under Article 31 of the Convention Relating to the Status of Refugees, and particularly the prohibition of refoulement. The applicant argued that the Court ’ s statement in Saadi v. the United Kingdom ( [GC], no. 13229/03, ECHR 2008 ), to the effect that temporary admission to enter a country after applying for asylum did not amount to a lawful entry, had been confined to situations where a State had not authorised entry. In his view it was not a universally applicable principle that no asylum seeker could be considered to have been granted lawful entry, an assertion which would be contrary to the sovereign right of States to regulate entry into their territories. The applicant considered that he had received explicit authorisation under Regulation 12 of LN 243. Moreover, the applicant made reference to the European Union ’ s Return Directive (Preamble, recital 9) which, albeit not legally binding, provided that a third - country national who had applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as an asylum seeker, had entered into force.", "70. In so far as the period of detention following the negative decision on his asylum claim ( 2 April 2012 -21 March 2013) could be considered to have been for the purposes of deportation, the applicant noted that the Government had admitted that the deportation had been stalled as a result of the ongoing criminal proceedings against the applicant. Nevertheless, on 7 January 2013, nine months after the applicant had ceased to be an asylum seeker, the Government had initiated deportation proceedings despite the fact that the criminal proceedings were then still ongoing. The applicant pointed out that the Government had failed to explain in what way the process in his case had satisfied the due diligence test. The applicant submitted that he had at no point directly or indirectly hindered his deportation. He had always stated that he was from Sierra Leone, and the Consulate ’ s denial of his nationality claim (based on an extremely short interview during which no request for official documentation had been made) could not be considered conclusive.", "71. Without prejudice to the above considerations, the applicant submitted that the decision to detain him and the decision to keep him in detention had been taken automatically, without any consideration of his individual circumstances. In this regard, the applicant noted how parallels could be drawn between recent statements by the Court ( he referred to Yoh ‑ Ekale Mwane v. Belgium, no. 10486/10, § 12 4, 20 December 2011 ) and the obligation of all Member States of the European Union to only detain third-country nationals where no other “ sufficient but less coercive measures [could] be applied effectively in a specific case” (Article 15, Return Directive). As in Yoh-Ekale Mwane, in the present situation the applicant ’ s identity had been known to the Maltese authorities – upon his arrival, since he had disclosed all details requested of him, following his completion of the Preliminary Questionnaire and following his interview with the Office of the Refugee Commissioner – and at no stage had the Maltese authorities indicated the presence of a real risk of his absconding. In fact, the applicant had applied for asylum in Malta, clearly expressing his wish to be granted international protection in that country. Furthermore, the applicant pointed to the Court ’ s statements in Louled Massoud ( § 68) highlighting the possibility for the authorities to seek effective alternatives to detention in order to ensure that the applicant remained in Malta.", "72. The applicant also argued that his continued detention violated Convention Article 5 § 1 (f) owing to its unlawfulness and arbitrariness ( he referred to Louled Massoud, cited above, § 71). Despite the Court ’ s conclusions in that case, no changes to Maltese legislation or administrative practice had been made to address the matter. The applicant submitted that, significantly, the legal basis for his detention had been insufficiently clear and precise. The length of his detention had been based on a Government policy that had not had the force of law. In exacerbation of this lack of clarity and legal basis, the Government policy stated that if a detained migrant was imprisoned in Corradino Correctional Facility for any number of days (167 in the applicant ’ s case), this duration was deemed not to form part of the period of mandatory detention for that specific migrant, despite the fact that the asylum application would still be processed during that time.", "73. The applicant further submitted that the requirement that his detention should not be arbitrary had also not been fulfilled ( the applicant referred to A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009 ). He underlined that at no stage had an individual assessment been conducted in his regard in order to ascertain whether he did in fact present a threat to national security or otherwise, his detention being an automatic decision. The Maltese authorities had repeatedly stated that detention was necessary to safeguard national security, to ensure the smooth provision of services and to guarantee an efficient asylum procedure. In the light of that, the applicant opined that they could easily have applied reception arrangements that did not involve deprivation of his liberty. In his view, the provision of medical assistance, shelter, sustenance and other basic needs could certainly be carried out in an environment that was more conducive to a person ’ s physical and psychological well-being than Malta ’ s detention centres. Moreover, the nature and material conditions of the detention centres certainly did not conform to the Maltese Government ’ s stated intention of securing orderly and efficient procedures. The applicant stressed that the place and conditions of his detention had been inappropriate for the purpose pursued (whatever this may have been). He referred to several expert reports that not only highlighted the military nature of Malta ’ s detention centres but also commented on the low standard of the material conditions in those centres ( see the relevant extracts under “ Relevant international reports ” above, and the report relied on by the third party intervener ). He noted that Safi B ‑ Block was an apartment - style building entirely closed off by chicken wire and constantly guarded by soldiers or security officers, where no provision was made for the special situation of asylum seekers highlighted by the Court ( he cited, for example, M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, and Louled Massoud, cited above ) and by UNHCR (see paragraph 33 above). In fact, the applicant noted that the building was not originally intended as asylum- seeker accommodation, but was part of a larger military barracks; only in 2002 had the premises been converted to their present use.", "74. The applicant pointed out that he had been detained for just over one month before the ICJ visit on which the latter had based their report used for the purposes of the submissions in the present case. During such time no changes to the structure, management or policy had been undertaken; thus, those submissions were entirely relevant.", "(b) The Government", "75. The Government submitted that, as held in Saadi v the United Kingdom (cited above), temporary admission to enter a country after applying for asylum did not amount to lawful “entry” for the purposes of Article 5 § 1 (f). Asylum seekers remained unauthorised entrants and were liable to be detained under Article 5 § 1 (f) to prevent their unauthorised entry. Moreover, such detention needed not be necessary in each case. They submitted that the sole fact that the applicant had made an asylum claim was not capable of regularising his position, nor could such an application render his detention unlawful. The Saadi judgment had clearly stated that a State could detain immigrants pending an asylum application; therefore, it was not necessary to assess each case on its merits. Likewise, the Government did not consider that they were obliged to grant lawful entry under the terms of LN 243.", "76. The Government further submitted that the applicant ’ s detention had been connected to the purpose of preventing an unauthorised entry and had been carried out in good faith as the detention centre had been set up especially for that purpose. Moreover, the place and conditions of detention had been appropriate. The Safi detention centre had been used as a detention centre since 2002, it was a two - storey building fully refurbished in 2007, and again in 2009 and 2010. Although security grilles had been put in front of and over the windows to prevent escape, it was not a prison and while the facility was basic it provided sleeping, dining and recreational facilities, toilets, showers, a television and telephones ( a telephone card was provided to the immigrants every two months), a veranda and two large recreational yards (to which access was allowed from sunrise to sunset). The State had attempted other entertainment measures such as installing sports equipment, which had been vandalised and turned into weapons after a few days. The detainees were allowed to move freely on the floor where they were accommodated and were allowed daily visits by NGOs (open door policy ). Immigrants could also join two EU - funded projects. The centre was also equipped with a medical clinic. In relation to the length of the applicant ’ s detention, the Government submitted that his detention had been required for the purposes of his repatriation, as he was a failed asylum seeker [ sic ].", "77. In respect of the period following the determination of the applicant ’ s asylum application, the Government submitted that his detention had been in accordance with the second limb of Article 5 § 1 (f). The Government made reference to Chahal v. the United Kingdom ( 15 November 1996, Reports 1996 ‑ V ), noting that once action was being taken with a view to deportation it was immaterial whether the person ’ s detention could be reasonably considered necessary. The Government further considered that the present case was different from that of Louled Massoud (cited above). They noted that in the present case the applicant ’ s deportation had been stalled only as a consequence of the pending criminal proceedings (in relation to the riot) against the applicant as a result of which the authorities could not deport him, given that his presence was essential to safeguard his fair trial rights. However, “attempts in order to prepare” for the applicant ’ s deportation had been made once the criminal proceedings had been finally determined. The Government claimed that it was only after the reply of the Consulate of Sierra Leone that it had become clear that the applicant could not be repatriated, and in consequence he had been released.", "78. The Government submitted that in the present case the applicant had not been subjected to indefinite detention. Indeed, the policy in place established that rejected asylum seekers could only be kept in detention up to a maximum of eighteen months. They noted that none of the irregular immigrants reaching Malta carried documents, making it impossible for the authorities to ascertain the identity of the persons concerned upon entry. This resulted in a lengthy process which depended on the immigrants ’ cooperation. In the present case it was the applicant who had intentionally given wrong information (about his country of origin), thereby hindering the process of deportation. The Government submitted that the detention policy had been framed with reference to the situation regarding migration in Malta. It was based on domestic law and was not discriminatory. Detention applied to persons irregularly entering Malta or whose presence in Malta was otherwise irregular. However, vulnerable persons were not subject to detention.", "79. In relation to the third - party submissions, the Government submitted a press release which they had issued as a reaction to the International Commission of Jurists (“ICJ”) report, in which they criticised the report as highly unrealistic. They considered that the ICJ had portrayed a very negative picture of a small country which had been doing its best to cope with a totally disproportionate influx of prohibited immigrants. The Court therefore had to take this into consideration. The Government considered that the limitations referred to in Article 25A (11) of the Immigration Act were in line with the Council of Europe Committee of Ministers ’ Recommendation to member states on measures of detention of asylum seekers (Recommendation Rec (2003)5 ) (see paragraph 33 above). Detention was consequent to breaches of domestic law and as such protected immigrants by giving them shelter, medical assistance, food and clothing, without which they would be homeless and without means of subsistence. In that light there was no point in deciding cases on a case - by - case basis. They further considered that the Return Directive did not apply to the applicant given that he had crossed irregularly by sea and had not subsequently obtained authorisation or a right to stay. Moreover, the twelve or eighteen months ’ detention periods were maximum periods justified by the need to prevent individuals from absconding and avoiding deportation. Such absconding was common, as evidenced by the various immigrants returned to Malta under the Dublin II Regulation. Indeed, the authorities made constant efforts to repatriate immigrants in the shortest possible time even though they faced all sorts of tricks and deceit by immigrants. These were, however, lengthy operations dependent on third - party cooperation.", "80. Lastly, the Government noted that the ICJ report referred to the period between 26 and 30 September 2011, during which the applicant had not been in detention and during which time there had been an extraordinary influx of detainees due to the Libyan crisis. Nevertheless, they submitted that the detainees ’ needs had still been met.", "(c) The third - party intervener", "81. The International Commission of Jurists (“ICJ”) submitted a report entitled “Not here to stay”, Report of the international Commission of Jurists on its visit to Malta on 26 ‑ 30 September 2011, May 2012, which assessed migration and asylum practice in Malta (at the time of the Libyan crisis). They highlighted a number of conclusions relevant to the present case.", "82. The intervener drew attention to the fact that detention for the purposes of preventing unauthorised entry could be justified only where the detention could be shown to be closely connected to that purpose, for the whole period of the detention. In the light of international refugee law, as well as the relevant European standards, the circumstances in which it was permissible to detain an asylum seeker on the grounds of unauthorised entry had to be narrowly drawn. They noted that the recently revised UNHCR Guidelines (mentioned above at paragraph 33) and the Conclusions adopted by the Executive Committee on the International Protection of Refugees, established a presumption against detention. Those provisions stipulated that detention could only be resorted to where necessary on specified grounds prescribed by law (guidelines 4.1 and 4.2). They stipulated that the detention of asylum seekers for other purposes, such as to deter future asylum seekers, or to dissuade asylum seekers from pursuing their claims, or for punitive or disciplinary reasons, was contrary to the norms of refugee law. The ICJ considered that inconsistency of national laws or practices with these norms would be an indicator of arbitrariness under Article 5 § 1 (f). Moreover, EU legislation clearly considered asylum seekers as “lawfully staying” in a Member State during the process of their asylum application. As a consequence, their detention on grounds of unauthorised entry could not be provided for except for very short periods and in exceptional circumstances. The ICJ submitted that European Union law in the field of asylum should be interpreted as constituting “national law” for the purposes of Article 5 of the European Convention, unless domestic law provided for higher standards, since the Common European Asylum System was directly applicable in EU Member States as a minimum standard.", "83. As to the second limb of Article 5 § 1 (f) – detention pending expulsion – this could only be justified so long as deportation or extradition proceedings were in progress. The test had to be applied strictly, ensuring that a real prospect of expulsion was being diligently pursued at all stages of the person ’ s detention. In the case of asylum seekers, detention would not be justified for any significant length of time during the course of asylum proceedings where national and international law prohibited expulsion in the course of those proceedings.", "84. As to the other requirements set forth in the Court ’ s case - law, the ICJ submitted that good faith in the imposition of detention implied a measure of openness and due process so that the procedures under national law which allowed for alternatives to detention or for release from detention, such as a period of voluntary departure, were not circumvented or manipulated so as to deprive them of meaning. They made reference to Čonka v. Belgium (no. 51564/99, ECHR 2002 ‑ I ) and R.U. v. Greece ( no. 2237/08, 7 June 2011 ). In their view, where the law or procedure was applied so as to deprive it of effect. In its report, the ICJ expressed concern at the expulsion decision notification routinely given to undocumented migrants on arrival in Malta based on the rejection of the inexistent voluntary return request. The ICJ noted that this practice constituted a breach of the EU Return Directive 2008/115/EC.", "85. As to procedural protection against arbitrariness, the ICJ referred to the above mentioned UNHCR Guidelines which also stated that asylum seekers “ are entitled to minimum procedural guarantees ” (Guideline 7).", "86. Further, the ICJ referred to the Council of Europe ’ s Twenty Guidelines on Forced Return which established a general principle whereby alternatives to the detention of migrants should be considered first, irrespective of vulnerability. Guideline 6 (see paragraph 33 above) had been held by the Court of Justice of the European Union to be an authoritative instrument of interpretation of EU asylum law, alongside the European Convention and the Court ’ s case-law. Similarly, the said UNHCR Guidelines clearly spelt out the pre-eminence of alternative measures over detention (Guideline 4.3). In a series of cases, this Court had found the measure of detention not to have been carried out in good faith, as, despite the situation of vulnerability, the authorities had not considered less severe measures ( the third-party intervener made reference to Yoh- Ekale Mwanje, cited above ). Even the UN Human Rights Committee, in C v Australia ( Communication No. 900/1999, 28 October 2002) had found a violation of the right to liberty because the respondent State had not demonstrated that there were no less invasive means of achieving the same ends. However, in Malta, any prohibited immigrant subject to a removal order had to “ be detained until he [was] removed from Malta”. This meant that the detention of undocumented migrants was the rule and not the exception; it was not applied on a case ‑ by ‑ case basis or where necessary as a last resort. The EU Return Directive excluded arrivals by sea from the further protection contained in it. Whether this exclusion also referred to persons authorised under national law (Article 12 of LN 243 of 2008) to stay in Malta pending the resolution of their application was unclear.", "87. By expressing the maximum length of detention only in policy documents rather than in primary legislation, Malta was acting contrary to the principle of legality under international law, including under Article 5 § 1 ECHR, as held in Abdolkhani and Karimnia v Turkey (cited above). Moreover, in the third-party intervener ’ s view, the period of eighteen months of administrative detention was per se contrary to the requirement under Article 5 § 1 ( f ), as no deportation procedure lasting that long could be said to have been undertaken with due diligence.", "88. Lastly, the ICJ expressed concern that the Safi Barracks detention centres, including B-Block, were located on two military bases – a situation at odds with international law and standards. The guidance of the Committee for the Prevention of Torture (CPT) stipulated that, except for short periods, detained migrants should be held in specifically designed centres in conditions tailored to their legal status and catering for their particular needs. The ICJ report concluded that the accumulation of poor conditions of detention, brought the situation in the Safi Barracks detention centre beyond the threshold of degrading treatment, in violation of Malta ’ s international human rights obligations under Article 3 of the Convention.", "2. The Court ’ s assessment", "(a) General principles", "89. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. The text of Article 5 makes it clear that the guarantees it contains apply to “everyone” (see Nada v. Switzerland [GC], no. 10593/08, § 224, ECHR 2012 ). Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions, contained in sub ‑ paragraph (f), permits the State to control the liberty of aliens in an immigration context.", "90. In Saadi ( cited above, §§ 64-66 ) the Grand Chamber interpreted for the first time the meaning of the first limb of Article 5 § 1 (f), namely, “ to prevent his effecting an unauthorised entry into the country”. It considered that until a State had “authorised” entry to the country, any entry was “unauthorised” and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be, without any distortion of language, to “prevent his effecting an unauthorised entry”. It did not accept that, as soon as an asylum seeker had surrendered himself to the immigration authorities, he was seeking to effect an “authorised” entry, with the result that detention could not be justified under the first limb of Article 5 § 1 (f) (§ 65). It considered that to interpret the first limb of Article 5 § 1 (f) as permitting detention only of a person who was shown to be trying to evade entry restrictions would be to place too narrow a construction on the terms of the provision and on the power of the State to exercise its undeniable right of control referred to above. Such an interpretation would, moreover, be inconsistent with Conclusion No. 44 of the Executive Committee of the United Nations High Commissioner for Refugees ’ Programme, the UNHCR ’ s Guidelines and the Committee of Ministers ’ Recommendation (see §§ 34-35 and § 37 of the Saadi judgment), all of which envisaged the detention of asylum seekers in certain circumstances, for example while identity checks were taking place or when elements on which the asylum claim was based had to be determined. However, detention had to be compatible with the overall purpose of Article 5, which was to safeguard the right to liberty and ensure that no-one should be dispossessed of his or her liberty in an arbitrary fashion ( ibid ., § 66).", "91. As to the second limb of Article 5 § 1 (f), any deprivation of liberty will be justified only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15 November 1996, Reports 1996-V ).", "92. Under the sub- paragraphs of Article 5 § 1 any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a)-(f), be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention ( see Saadi, cited above, § 67).", "93. To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate, bearing in mind that “the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country”; and the length of the detention should not exceed that reasonably required for the purpose pursued ( ibid. , § 7 4; see also A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, and Louled Massoud, cited above, § 62 ).", "(b) Application of these principles to the present case", "94. The Court notes that the Government ’ s submissions are to some extent contradictory and despite specific questions on the matter they do not refer to specific time-lines. However, the Government appeared to consider that the applicant ’ s first period of detention (before he had obtained a final decision on his asylum claim) was carried out in pursuance of the first limb of Article 5 § 1 (f). Nevertheless, they considered that the duration of that detention was required for the purposes of repatriation of the applicant, who was “ a failed asylum seeker ”.", "95. Furthermore, the Court notes that hardly any submissions have been made as to the effect of Legal Notice 243, on which the applicant based most of his arguments. The Government simply submitted their interpretation of that provision, namely that it did not oblige them to provide the applicant with any authorisation to stay. However, the Court notes that the IAB itself had interpreted the provision differently. Indeed, in the determination of the applicant ’ s case, the IAB upheld the argument that the provision authorised entry and that therefore in principle the circumstances of the applicant ’ s case were such that he could not be detained.", "96. The Court notes that its case-law does not appear to offer specific guidelines as to when detention in an immigration context ceases to be covered by the first limb of Article 5 § 1. In Saadi the Grand Chamber considered that the applicant ’ s detention for seven days while his asylum application was being determined fell under that limb. Similarly, in the case of Kanagaratnam v. Belgium (no. 15297/09, 13 December 2011), the Court considered that the applicant ’ s detention pending his asylum claim fell under the first limb of Article 5 § 1 (f), namely to prevent his effecting an unauthorised entry into the country. Nevertheless, in the context of Greece, the Court examined and found a violation of Article 5 § 1 under its second limb on the basis that the applicant ’ s detention pending asylum proceedings could not have been undertaken for the purposes of deportation, given that national law did not allow for deportation pending a decision on asylum (see Ahmade v. Greece, no. 50520/09, §§ 142-144, 25 September 2012, and R.U. v. Greece, no. 2237/08, § § 88-96, 7 June 2011 ).", "97. The Court considers that the applicant ’ s argument to the effect that Saadi should not be interpreted as meaning that all member States may lawfully detain immigrants pending their asylum claim, irrespective of national law, is not devoid of merit. Indeed, where a State which has gone beyond its obligations in creating further rights or a more favourable position – a possibility open to it under Article 53 of the Convention – enacts legislation (of its own motion or pursuant to European Union law) explicitly authorising the entry or stay of immigrants pending an asylum application (see for example, Kanagaratnam, cited above, § 35 in fine, in relation to Belgian law ), an ensuing detention for the purpose of preventing an unauthorised entry may raise an issue as to the lawfulness of detention under Article 5 § 1 (f). Indeed, in such circumstances it would be hard to consider the measure as being closely connected to the purpose of the detention and to regard the situation as being in accordance with domestic law. In fact, it would be arbitrary and thus run counter to the purpose of Article 5 § 1 (f) of the Convention to interpret clear and precise domestic law provisions in a manner contrary to their meaning (see Longa Yonkeu v. Latvia, no. 57229/09, § 125, 15 November 2011 ). The Court notes that in Saadi the national law (albeit allowing temporary admission) did not provide for the applicant to be granted formal authorisation to stay or to enter the territory, and therefore no such issue arose. The Court therefore considers that the question as to when the first limb of Article 5 ceases to apply, because the individual has been granted formal authorisation to enter or stay, is largely dependent on national law.", "98. Turning to the facts of the present case, and reiterating that it is primarily for the national authorities to interpret domestic law, the Court observes that it is faced with conflicting interpretations of LN 243, and particularly of Regulation 12(1) thereof, which provides that an applicant shall be “ allowed to enter or remain in Malta pending a final decision of his application”. On the one hand, the Government asserted that the provision did not grant any right to stay; on the other hand, the IAB ’ s decision held that the applicant had been correct to rely on it in order to challenge his detention, given that it provided that an individual had the right to enter and to remain on the island pending a decision on his asylum request. It is not for the Court to interpret the intention of the legislature one way or another. However, it may well be that what was intended was for the provision to reflect international standards to the effect that an asylum seeker may not be expelled pending an asylum claim (see for example, S.D. v. Greece, no. 53541/07, § 62, 11 June 2009), without necessarily requiring that an individual be granted formal authorisation to stay or to enter the territory. The fact that the provision, while establishing the conditions to be met by the asylum seeker, does not provide for any formal authorisation procedure or for the issuance of any relevant documentation (as per Article 9 of the Immigration Act) lends support to this interpretation. In this situation the Court considers that the first issue that arises concerns the quality of domestic law. The Court reiterates that the words “in accordance with a procedure prescribed by law” do not merely refer back to domestic law; they also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise in order to avoid all risk of arbitrariness (see Dougoz v. Greece, no. 40907/98, § 55, ECHR 2001-II, citing Amuur v. France, § 50, cited above ).", "99. In the present case, while it is clear that Article 5 in conjunction with Article 14 of the Act authorised the detention of prohibited immigrants, it is undeniable that Legal Notice 243, which “ applies notwithstanding the provisions of any other law to the contrary ” (see the text of the provision in “Relevant domestic law ” above), created some confusion as to the extent of the legal basis -- in particular, whether detention under the Immigration Act was lawful ( in terms of domestic law ) only up to the moment where an individual applied for asylum or continued to be lawful pending the determination of the asylum claim. However, in the present circumstances, while considering that clarification of the legal framework is called for in the domestic system, the Court is ready to accept that the detention had a sufficiently clear legal basis, namely Article 5 in conjunction with Article 14 of the Act, and that, given that it has not been established that the applicant had actually been granted formal authorisation to stay – the Court in fact notes that the applicant had not been issued with the relevant written documentation under Article 9 of the Act – his detention between 8 April 2011 ( the date of his arrival) and 2 April 2012 ( the date of rejection of his asylum claim) (excluding the period of detention in connection with the criminal proceedings) fell under the first limb of Article 5 § 1 (f).", "100. Nevertheless, the Court must examine whether the applicant ’ s detention was arbitrary. The Court notes a series of odd practices on the part of the domestic authorities, such as the by - passing of the voluntary departure procedure (see paragraph 8 above) and the across - the - board decisions to detain, which the Government considered did not require individual assessment (see paragraph 79 above). In respect of the latter, the Court notes that Recommendation Rec(2003)5 of the Committee of Ministers to member states on measures of detention of asylum seekers, which was extensively cited by the Government, also considers that “ [m] easures of detention of asylum seekers should be applied only after a careful examination of their necessity in each individual case”. In the light of these practices the Court has reservations as to the Government ’ s good faith in applying an across - the - board detention policy (save for specific vulnerable categories) with a maximum duration of eighteen months.", "101. Nevertheless, even accepting that the applicant ’ s detention had been closely connected to the purpose of preventing his unauthorised entry to the country, the Court is concerned about the appropriateness of the place and the conditions of detention endured. Various international reports have expressed concerns on the matter (see paragraph 33 et seq. above). Both the CPT and the ICJ considered that the conditions in question could amount to inhuman and degrading treatment under Article 3 of the Convention; furthermore, those conditions must surely have been exacerbated during the Libyan crisis, a time when the applicant was in detention. In that light, the Court finds it difficult to consider such conditions as appropriate for persons who have not committed criminal offences but who, often fearing for their lives, have fled from their own country.", "102. Lastly, the Court notes that in the present case it took the authorities one year to determine the applicant ’ s asylum claim. This cannot be considered as a period of detention reasonably required for the purpose pursued, namely to determine an application to stay. However, the Court notes that, for more than five months during this period ( from 16 August 2011 to 29 January 2012), the applicant was remanded in custody in connection with criminal charges. Therefore the Court must only examine for the purposes of this complaint the period, amounting to more than six months in total, during which he was detained for the purposes of the first limb of Article 5 § 1 (f). Nevertheless, the Court has already considered periods of three months ’ detention pending a determination of an asylum claim to be unreasonably lengthy, when coupled with inappropriate conditions (see Kanagaratnam, cited above, §§ 94-95). Hence, it cannot consider a period of six months to be reasonable, particularly in the light of the conditions of detention described by various independent entities (see, a contrario, Saadi, cited above, where it took the authorities seven days, during which the applicant was detained in suitable conditions, to determine the applicant ’ s asylum application despite the difficult administrative problems with which the United Kingdom was confronted during the period in question, with an escalating flow of huge numbers of asylum seekers ).", "103. It follows that the applicant ’ s detention up to the date of determination of his asylum application was not compatible with Article 5 § 1 (f ) of the Convention, which has therefore been violated.", "104. As to the second period of the applicant ’ s detention, namely from 2 April 2012 to 21 March 2013, the Government submitted that his detention had been effected for the purposes of the second limb of 5 § 1 (f), that is to say, where action is being taken with a view to deportation. The Court reiterates that detention under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal, cited above, § 113 ). However, the Government admitted that the applicant ’ s deportation had been stalled because of the criminal proceedings pending against him and that in view of those proceedings the authorities could not deport him (see paragraph 77 above). It is unclear when those proceedings were terminated; however, it was only in January 2013 that attempts to prepare the applicant for deportation were initiated. In consequence, it cannot be said that the period of detention of ten months between 2 April 2012 and January 2013 was for the purposes of deportation. As to the subsequent two months, the Government have not indicated any steps taken by the authorities, apart from an interview with the Consul of Sierra Leone, as a result of which they considered that the applicant could not be repatriated. The Court notes, however, that the applicant remained in detention until March 2013 despite the fact that the authorities had known since 11 February 2013 that there was no prospect of deporting him.", "105. This alone suffices for the Court to consider that, in the present case, the applicant ’ s detention following the determination of his asylum claim was not compatible with Article 5 § 1 (f). The Court also considers it worthwhile to reiterate that it has already found in Louled Massoud ( cited above ), that the Maltese legal system did not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation. Those circumstances have not changed, as evidenced by the finding of a violation under Article 5 § 4 in the present case (see paragraph 60 above). Moreover, the Court has already considered the applicant ’ s conditions of detention ( in its examination of the first period of detention) and found those conditions to be of concern.", "106. The foregoing considerations are sufficient to enable the Court to conclude that the national system failed as a whole to protect the applicant from arbitrary detention, and that his prolonged detention following the determination of his asylum claim cannot be considered to be compatible with the second limb of Article 5 § 1 (f) of the Convention.", "107. In conclusion, the Court finds that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s immigration ‑ related detention, pending his asylum application and following its determination.", "III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION", "108. The applicant further complained of the fact that on his arrival he had not been provided with any information regarding the specific reason for his detention. He relied on Article 5 § 2 of the Convention, which reads as follows:", "“ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. ”", "A. The parties ’ submissions", "109. The Government submitted that the applicant had failed to exhaust domestic remedies and that in any event the complaints failed to comply with the six - month rule. If, as in the case of Louled Massoud (cited above), the Court was to hold that there existed no domestic remedy for the purposes of this complaint, the six months were to be calculated from the date of the omission complained of. In the applicant ’ s case, that had been the date of his arrest on 8 April 2011, which was more than six months before the date of the lodging of his application on 4 July 2012.", "110. The Government submitted that Article 5 § 2 did not require that a person be given reasons for his or her arrest in any particular way, nor did it guarantee a right of access to a lawyer. Referring to Fox, Campbell and Hartley v. the United Kingdom ( 30 August 1990, Series A no. 182 ), the Government submitted that the applicant had been served with a removal order and a booklet containing information about his rights. The booklet was made available in various languages. In practice, when irregular immigrants were intercepted coming ashore, the immigration police would place them on a bus, where they were informed of the removal order and of their rights. The removal order contained information relative to the time ‑ limit for appealing (three working days) and the fact that the appeal had to be lodged with the registry of the IAB, Fort St. Elmo, Valletta. Moreover, there were no particular formalities required in order to lodge an appeal, and most applicants lodged their appeals by writing in person to the IAB objecting to their removal. In any event further information could have been provided by the detention centre staff or a legal-aid lawyer had the applicant so requested, as explained in the booklet provided. Furthermore, the Government argued that the applicant had failed to substantiate his assertion that he did not understand English; indeed, he had requested that the proceedings before the IAB be conducted in English.", "111. The applicant submitted that the applicable rule was that upheld by the Court in Varnava and Others v. Turkey [GC] ( nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 1607 1/90, 16072/90 and 16073/90, § 157, ECHR 2009 ), namely that where “ an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six ‑ month period from the date when the applicant first became or ought to have become aware of those circumstances ”. In the present case the applicant had attempted to exhaust ordinary remedies by lodging an application before the IAB, in the belief that the procedure following the Louled Massoud judgment could remedy the deficiencies at issue, and it was only during those proceedings that it turned out that no changes had been made. The application had been lodged shortly after the termination of those proceedings and therefore could not be considered as out of time.", "112. The applicant submitted that on his entry to Malta in an irregular manner the only documentation provided to him, subsequent to his classification as a “prohibited immigrant” under the terms of Article 5 of the Immigration Act, was the Return Decision and Removal Order (RDRO) together with a booklet bearing the title “Your Entitlements, Responsibilities and Obligations while in Detention”, produced by the Ministry for Parliamentary and Home Affairs. The Return Decision and Removal Order were of limited quality in both content and form. The document consisted of a standard text provided exclusively in English (see paragraph 27 above), and no interpretation or further explanation was provided to ensure that it was made comprehensible. In the Return Decision and Removal Order no reference was made to the applicant ’ s detention, the possible reasons for it or the possibility of challenging the legality of his detention. Similarly, the information booklet mentioned by the Government contained absolutely no information on the reasons for detention, either in a general manner or in a manner specifically relating to the applicant. The applicant noted that Regulation 12 of the said document provided information – albeit of an extremely basic nature – on the possibility of applying to the IAB if an individual felt that his detention was no longer reasonable. Furthermore, the document referred to the possibility of applying to the Board merely on grounds of the possible unreasonableness of the person ’ s detention and not on grounds of its unlawfulness. In addition, while stating that an appeal was possible the documentation did not provide any explanation as to how to lodge such an appeal or on what grounds, nor did it indicate the address of the Board or any other means of contacting the IAB, legal representatives or NGOs. Thus, the applicant submitted that he had at no point been informed promptly, in a language that he understood, of the reasons for his arrest, in violation of his rights under Convention Article 5 § 2. Even assuming that the reasons of the detention were self-evident given the circumstances, the applicant submitted that at some point in time the grounds for his detention had changed from the first limb to the second limb of Article 5 without any explanation being forthcoming. He further noted that according to the Court ’ s case- law such information had to give the real reason for detention, in order to enable the detention to be challenged under Article 5 § 4, and that different grounds of detention required different levels of information as well as different timeframes ( the applicant cited, for example, Kaboulov v. Ukraine, no. 41015/04, 19 November 2009, and Saadi, cited above ).", "B. The Court ’ s assessment", "113. The Court reiterates that Article 5 § 2 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4. Whilst this information must be conveyed “promptly” (in French: “ dans le plus court délai ”), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Čonka, cited above, § 50, with further references). It also reiterates that paragraph 2 of Article 5, like paragraph 4, is applicable both to persons deprived of their liberty by arrest and to those deprived of it by detention (see, by implication, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 414). Thus, Article 5 § 2 applies to Article 5 § 1 (f) cases, although less detailed reasons are required to be given than in Article 5 § 1 (c) cases ( see Bordovskiy v. Russia, no. 49491/99, § 5 6, 8 February 2005 ).", "114. The Court does not consider it necessary to examine any of the Government ’ s objections in this respect as in its view the complaint is in any event inadmissible for the following reasons.", "115. The Court notes that the RDRO informed the applicant that he was considered as a prohibited immigrant according to Article 5 of the Immigration Act because he had entered Malta illegally and had no means of subsistence. He was further informed that his stay had been terminated and that an entry ban, a return decision and a removal order were being issued because the request for voluntary departure (which in practice he had never lodged) had been refused. The Court observes that, contrary to the applicant ’ s assertion, the RDRO also informed him that he could appeal against this decision/ order/ entry ban to the IAB within three working days at the Board ’ s Registry, Fort St Elmo, Valletta. However, the applicant stressed that nowhere in the RDRO was any reference made to the fact that as a consequence of such a situation he had to be detained, or to the legal basis for such detention, namely Article 14 of the Act. Nevertheless, the booklet, which listed the entitlements, responsibilities and obligations of the persons concerned while in detention ( and which was also given to the applicant on his arrival) explained that a prohibited immigrant could apply for refugee status and that pending the determination of that application “you will be placed in detention for a period up to 18 months” (which could be extended in certain circumstances). The booklet also informed the applicant, amongst other things, that any person detained under the Immigration Act could apply to the IAB if he felt that his detention was no longer reasonable. However, the Court observes that this information – which, moreover, explained solely that the applicant would be detained pending any asylum claim he might wish to lodge – again failed to give the legal basis for his detention, or even a part thereof (referring to the periods before, during or after the asylum procedure).", "116. The Court thus observes that, while the information supplied by means of the RDRO and the booklet enabled the applicant to know why he was being detained throughout the different stages of his detention, what it failed to supply was the actual legal provision forming the basis for his detention. While the Court finds this regrettable, it considers that the information given to the applicant would have allowed him to contest the legality of his detention on the basis of the Immigration Act. While it is true that the information provided did not give details as to the method of instituting proceedings challenging the lawfulness of the detention (as opposed to proceedings challenging its unreasonableness or appeals against the orders issued), Article 5 § 2 does not require the State to give such elaborate details, especially where it is not alleged that the applicant requested more information on the procedure (as the applicant in the present case was allowed to do according to the information provided in the booklet) and that this request was refused. The information furnished therefore satisfied the requirements of Article 5 § 2 of the Convention (see, mutatis mutandis, Čonka, cited above, § 52 ).", "117. As to the language in which the information was given, the applicant did not specifically claim that he did not understand English or was unable to understand the information given on the bus or to communicate with the officers (see, mutatis mutandis, Galliani v. Romania, no. 69273/01, § 54, 10 June 2008 ), nor did he claim that he was unable to understand any other language in which the booklet was provided. Likewise, he did not submit that he had requested an interpreter and had his request refused.", "118. Accordingly, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION", "119. The relevant parts of Article 46 of the Convention read as follows:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...”", "120. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998 ‑ IV; Scozzari and Giunta, [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). In principle it is not for the Court to determine what may be the appropriate measures of redress for a respondent State to perform in accordance with its obligations under Article 46 of the Convention (see Scozzari and Giunta, cited above; Brumărescu v. Romania ( just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001- I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 ‑ IV ). With a view, however, to helping the respondent State fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 3 1443/96, § 194, ECHR 2004-V; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, ECHR 2009; and Stanev v. Bulgaria [GC], no. 36760/06, § 255, 1 7 January 2012 ).", "121. In the Court ’ s view, the problems detected in the applicant ’ s particular case may subsequently give rise to numerous other well-founded applications which are a threat to the future effectiveness of the system put in place by the Convention (see Driza v. Albania, no. 33771/02, § 122, ECHR 2007 ‑ ... (extracts) ). The Court ’ s concern is to facilitate the rapid and effective suppression of a defective national system hindering human-rights protection. In that connection, and having regard to the situation which it has identified above (see paragraphs 59-60 above and also Louled Massoud, cited above, § 47 ), the Court considers that general measures at national level are undoubtedly called for in execution of the present judgment.", "122. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 5 § 4, to indicate the general measures required to prevent other similar violations in the future. It observes that it has found a violation of Article 5 § 4 on account of the fact that none of the remedies available in Malta could be considered speedy for the purposes of that provision. Thus, the Court considers that the respondent State must above all, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism which allows individuals taking proceedings to determine the lawfulness of their detention to obtain a determination of their claim within Convention - compatible time- limits, but which nevertheless maintains the relevant procedural safeguards. The Court reiterates that although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question ( see A. and Others, cited above, § 203, and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012 ).", "123. The Court notes that it has also found a violation of Article 5 § 1 on account in particular of the duration of the applicant ’ s detention coupled with the inadequate conditions at the barracks where he was held. Having regard to that finding, the Court recommends that the respondent State envisage taking the necessary general measures to ensure an improvement in those conditions and to limit detention periods so that they remain connected to the ground of detention applicable in an immigration context.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "124. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "125. The applicant claimed 25,000 euros (EUR) in respect of non ‑ pecuniary damage on account of the violations of Article 5 and the psychological harm he had suffered during his eighteen- month detention period.", "126. The Government considered that a finding of a violation would be sufficient just satisfaction. They relied on the Court ’ s findings under Article 6 in previous cases, according to which it was impossible to speculate as to the outcome of the trial had the violation in question not occurred. In any event they submitted that any award granted by the Court should not exceed EUR 3,000.", "127. The Court notes that it has found multiple violations of Article 5 of the Convention and considers it equitable to award the applicant EUR 24 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "128. The applicant also claimed EUR 3,392.50 ( EUR 2,875 for 49.5 hours at EUR 50 per hour for legal work, plus tax, and EUR 400 in administrative costs) in respect of the costs and expenses incurred before the domestic courts and the Court.", "129. The Government submitted that no costs should be paid in relation to the domestic proceedings ( before the IAB and the Refugee Appeals Board ) and that in any event the sum awarded should not exceed EUR 2,000.", "130. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3, 0 00, covering costs under all heads, in respect of the costs and expenses incurred in the domestic proceedings and before the Court.", "C. Default interest", "131. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1962 in the Uzbek SSR of the Soviet Union. Since 1990 he has been living in St Petersburg, Russia. It appears that he did not acquire any nationality following the break-up of the USSR.", "A. Expulsion proceedings", "6. On 19 July 2011 the police stopped the applicant for an identity check and discovered that he had no identity documents. On the same day a judge of the Sestroretsk District Court of St Petersburg found him guilty of an administrative offence under Article 18.8 of the Code of Administrative Offences (breach of residence regulations in Russia), fined him 2,000 Russian roubles (RUB ) and ordered his expulsion from Russia. The court ruled that the applicant should be detained in the detention centre for aliens until his expulsion.", "7. Officers of the Federal Migration Service ( FMS ) interviewed and fingerprinted the applicant, who had no passport or other identity documents. He told them that he had been born in Tashkent and, prior to his arrival in Russia, had had a registered place of residence in the Tashkent Region.", "8. On 30 November 2011 the director of the detention centre for aliens asked the Embassy of Uzbekistan to issue travel documents ( return certificates ) to thirteen individuals, including the applicant, who were described as being Uzbek nationals. No reply was received.", "9. Further similar requests sent on 10 February, 29 March, 31 July and 11 November 2012 did not elicit any reply from the Embassy of Uzbekistan either.", "10. On 7 June 2012 counsel for the applicant sent an inquiry to the Embassy of Uzbekistan in Russia, seeking to find out whether or not the applicant had Uzbek nationality and whether he could be removed to Uzbekistan. No reply was received.", "11. On the same day counsel asked the FMS to inform him what measures had been taken with a view to expelling the applicant from Russia, whether or not his identity had been established and why the applicant had already spent more than eleven months in detention. In reply, the FMS refused to give any information, citing the law on the protection of personal data.", "12. On 14 November 2012 counsel applied to the Sestroretskiy District Court for an order discontinuing the enforcement of the expulsion order of 19 July 2011. He pointed out that the enforcement was impossible since the Uzbek authorities would not accept the applicant, who was not a national of that State.", "13. On 10 December 2012 a judge of the Sestroretskiy District Court rejected the application, without hearing the parties or the applicant. According to the judge, a failure to take measures with a view to expelling the applicant was not a ground for discontinuing the enforcement of the expulsion order. Counsel submitted an appeal, in which he complained in particular about the absence of a periodic judicial review of the applicant ’ s detention in breach of Article 5 § 4 of the Convention and about the State authorities ’ failure to show special diligence in the conduct of the expulsion proceedings, contrary to the requirements of Article 5 § 1 (f) of the Convention. On 14 March 2013 a judge of the St Petersburg City Court rejected the appeal in a summary fashion.", "14. Counsel also attempted to challenge the applicant ’ s detention as unlawful. By decision of 26 November 2012, the Krasnoselskiy District Court of St Petersburg disallowed the complaint, finding that the decision of 19 July 2011 constituted a sufficient lawful basis for the ensuing detention. It noted in particular that the applicant would remain in custody “until his expulsion from Russia”. On 24 January 2013 the St Petersburg City Court upheld the District Court ’ s decision.", "15. By letter of 5 February 2013, the consular department of the Embassy of Uzbekistan informed the FMS that the applicant was not a national of Uzbekistan and could not therefore be issued with a travel document. On 25 March 2013 the Ministry of Internal Affairs of Uzbekistan sent a further letter to the FMS, stating that the applicant was not an Uzbek national.", "16. On 29 July 2013 the applicant was released on the basis of the expiry of the two-year time-limit for enforcement of the administrative-expulsion decision.", "B. Conditions of detention in the detention centre for aliens", "17. The detention centre for aliens ( Центр для содержания иностранных граждан ) is located in Krasnoye Selo in St Petersburg and operated at the material time under the authority of the FMS.", "18. The centre, an eight-storey building designed to hold 176 inmates, actually accommodated no fewer than 300 people at any one time and the number rose to 400 in the summertime and during special raids.", "19. The applicant was initially held in cells 604 and 605. Each cell measured no more than ten square metres and housed five or six people. In the last ten months of his detention the applicant was held in cell 615, an eighteen-square-metre cell which he shared with four and occasionally up to seven other people.", "20. There was no sink or access to drinking water from within the cells; there was one toilet and one shower per floor which were used by approximately forty inmates.", "21. Up until March 2013 the applicant was allowed twenty to thirty minutes ’ outdoor exercise once every two or three weeks in a tiny yard.", "22. The facility did not offer any meaningful activities: no television, radio, newspapers or magazines were available." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Code of Administrative Offences", "23. Article 18.8 of the current version of the Code provides as follows :", "“1. An infringement by a foreign national or a stateless person of the procedure for entry to the Russian Federation or the regulations on stay or residence in the Russian Federation, including ... a breach of the regulations on migration, travel or choice of permanent or temporary residence ... shall be punishable by an administrative fine ... and by possible administrative removal from the Russian Federation.", "1.1. A breach of the regulations on stay or residence in the Russian Federation committed by a foreign national or a stateless person who has no document confirming the right to reside or stay in the Russian Federation ... shall be punishable by an administrative fine of between RUB 2,000 and 5,000 and by administrative removal from the Russian Federation.", "...", "3. The offences described in paragraphs 1, 1.1 ... above, if committed in the federal-level cities of Moscow and St Petersburg or in the Moscow or Leningrad Regions, shall be punishable by an administrative fine of between RUB 5,000 and 7,000 and by administrative removal from the Russian Federation. ”", "Paragraphs 1.1 and 3 of Article 18.8 were added by Federal Law no. 207-FZ of 23 July 2013.", "24. Article 32.10 ( 5 ), in force at the time the applicant ’ s detention was ordered, allowed domestic courts to order the detention of a foreign national or stateless person with a view to his or her administrative removal. As from 1 January 2012, the relevant provisions have been contained in Articles 3.10 (5) and 27.19 (3).", "B. Case-law of the Constitutional Court", "25. In its decision no. 6-P dated 17 February 1998, the Constitutional Court held, in particular, as follows:", "“It follows from Article 22 of the Constitution of the Russian Federation, taken in conjunction with its Article 55 (paragraphs 2 and 3), that detention for an indefinite period cannot be regarded a permissible limitation on the right to liberty and personal security, and is in fact a violation of that right. Therefore the provisions ... concerning detention pending expulsion should not serve as a basis for detention for an indefinite period even when the expulsion of a stateless person is delayed because no State is prepared to accept that person ... Otherwise detention would turn from a measure necessary to ensure the execution of an expulsion order into a ... punishment which is not provided under Russian law and which is incompatible with the provisions of the Constitution of the Russian Federation.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "26. The applicant complained that the conditions of his detention in the detention centre for aliens had been incompatible with Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "28. The Government acknowledged a violation of Article 3 of the Convention and stated that the conditions of the applicant ’ s detention had fallen short of the applicable standards.", "29. The applicant submitted that the conditions of his detention in the detention centre for aliens, which had been designed for short periods of detention not exceeding fifteen days but in which he had spent two years, had been inhuman and degrading.", "30. Article 3, as the Court has observed on many occasions, enshrines one of the fundamental values of a democratic society. The Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances or the victim ’ s behaviour (see Balogh v. Hungary, no. 47940/99, § 44, 20 July 2004, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). The Court has consistently stressed that the suffering and humiliation involved must, for a violation to be found, go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention, the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).", "31. Turning to the facts of the present case, the Court notes that the applicant spent two years and ten days in the detention centre for aliens, which appears to have been designed for short-term detention. This accounts for the rudimentary state of the centre ’ s facilities. There was no running water or toilets in the cells. Hygiene facilities were manifestly inadequate in relation to the number of detainees. Outdoor exercise was sporadic and of an extremely limited duration. The Court reiterates in this connection its well-established case-law that the mere fact of holding an applicant for a long period of time in an unadapted cell designed only for short-term detention discloses a violation of Article 3 (see Aslanis v. Greece, no. 36401/10, § 38, 17 October 2013, with further references; Kuptsov and Kuptsova v. Russia, no. 6110/03, § § 69-72, 3 March 2011; Khristoforov v. Russia, no. 11336/06, §§ 23-27, 29 April 2010, and Shchebet v. Russia, no. 16074/07, §§ 84-96, 12 June 2008).", "32. In addition, the detention centre for aliens was constantly and severely overcrowded. During the first one and a half years of his detention the applicant disposed of less than two square metres of personal space. In the final ten months his situation improved slightly, and periods of overcrowding, with eight people sharing the eighteen-square-metre cell, alternated with periods of relative normality when only four of them were present in the cell. However, the latter periods must be seen against the background of virtually non-existent outdoor exercise and deficient hygiene facilities. In previous cases where the applicants disposed of less than three square metres of personal space, the Court found that the overcrowding was severe enough to justify, in its own right, a finding of a violation of Article 3 of the Convention (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 145, 10 January 2012 ).", "33. The Government did not dispute the applicant ’ s account of the conditions of his detention. They also conceded that those conditions had fallen short of the standards set forth in Article 3 of the Convention.", "34. The Court finds that the applicant had to endure conditions of detention which must have caused him considerable mental and physical suffering, diminishing his human dignity. The conditions of his detention thus amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention, even in the absence of any positive intention to humiliate or debase the applicant on the part of any domestic authority.", "35. There has accordingly been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION", "36. The applicant complained that his detention pending expulsion had been in breach of Article 5 § 1 (f) of the Convention on account of its excessive length and the obvious impossibility to enforce the order for his expulsion to Uzbekistan. He further complained under Article 5 § 4 of the Convention that he had been unable to obtain a judicial review of his detention. The relevant parts of Article 5 provide as follows :", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.", "...", "4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...”", "A. Admissibility", "37. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "38. The Court will consider firstly whether there existed a possibility of effective supervision over unlawful or arbitrary detention and secondly whether the applicant ’ s detention was compatible with the requirements of Article 5 § 1 (f) (see Azimov v. Russia, no. 67474/11, § 146 et seq., 18 April 2013; Louled Massoud v. Malta, no. 24340/08, § 29 et seq., 27 July 2010; and Muminov v. Russia, no. 42502/06, § 112 et seq., 11 December 2008 ).", "1. Compliance with Article 5 § 4 of the Convention", "39. The Government acknowledged a violation of Article 5 § 4.", "40. The applicant submitted that Russian law does not provide for any possibility to obtain a meaningful judicial review of the detention of an individual who is detained pending administrative expulsion (he referred, by way of comparison, to Tabesh v. Greece, no. 8256/07, § 62, 26 November 2009 ). Such detention may last up to two years but there is no periodic judicial review of it. His applications for review were dismissed in a summary fashion first by the Sestroretsk Town Court and later by the Krasnoselskiy District Court. In both cases, the St Petersburg City Court upheld the lower courts ’ decisions.", "41. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected. A remedy must be made available during a person ’ s detention to allow that person to obtain speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Muminov, cited above, § 113, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008, with further references).", "42. The Court notes at the outset that a judicial review of the kind required under Article 5 § 4 cannot be said to be incorporated in the initial detention order of 19 July 2011. The thrust of the applicant ’ s complaint under Article 5 § 4 was not directed against the initial decision on his placement in custody but rather against his inability to obtain a judicial review of his detention after a certain lapse of time. Given that the applicant spent more than two years in custody, new issues affecting the lawfulness of the detention might have arisen in the meantime. In particular, the applicant sought to argue before the courts that his detention had ceased to be lawful after it had transpired that it was impossible to expel him to Uzbekistan. By virtue of Article 5 § 4 the applicant was entitled to apply to a “court” having jurisdiction to decide “speedily” whether or not his deprivation of liberty had become “unlawful” in the light of new factors which emerged subsequently to the decision on his initial placement in custody (see Azimov, cited above, §§ 151-152, with further references).", "43. The Court observes that no automatic periodic extension of the applicant ’ s detention or any judicial review thereof took place during the entire two-year period that he remained in custody. The applicant ’ s attempts to seek any form of review were likewise unfruitful: two District Courts and the St Petersburg City Court refused to deal with the substance of his complaint about unlawful detention, finding that there was no need to vary the custodial measure or to review its lawfulness in the light of the new circumstances. The Court lastly notes that in the Azimov case, which featured a similar complaint, the Government did not point to any domestic legal provision which could have allowed the applicant to bring proceedings for judicial review of his detention pending expulsion (see Azimov, cited above, § 153); in the instant case, the Government also acknowledged a violation of Article 5 § 4.", "44. It follows that throughout the term of the applicant ’ s detention pending expulsion he did not have at his disposal any procedure for a judicial review of its lawfulness.", "45. There has therefore been a violation of Article 5 § 4.", "2. Compliance with Article 5 § 1 of the Convention", "46. The Government acknowledged a violation of Article 5 § 1 (f) in respect of the time period after 5 February 2013, the date on which the letter from the Embassy of Uzbekistan made it clear that the applicant ’ s expulsion to Uzbekistan was impossible. As regards the preceding period, the Government submitted that the lengthy detention was accounted for by an “objective reason”, notably the absence of information from the Embassy of Uzbekistan. The domestic authorities had shown “special diligence” in the conduct of the expulsion proceedings.", "47. The applicant submitted that the Russian authorities had not conducted the expulsion proceedings with due diligence. This lack of due diligence on their part was exemplified in several ways. Firstly, no effort had been made to contact the Uzbek authorities in the first four months and eleven days of his detention. Secondly, the Russian authorities had sent no fewer than four letters to the Embassy of Uzbekistan in Moscow, but a first reply was received more than one year and two months after the despatch of the first letter. Thirdly, there had been no justification for the applicant ’ s detention after 5 February 2013, when the Russian authorities had become aware that he was not an Uzbek national. Finally, the applicant pointed out that he had been kept in detention pending expulsion: thus, there had been no complex extradition proceedings and the only issue to be determined had been whether at least one State was willing and able to receive him.", "48. The applicant was held in custody with a view to his expulsion from Russia, which is a form of “deportation” in terms of Article 5 § 1 (f) of the Convention (see Azimov, cited above, § 160). Accordingly, the deprivation of the applicant ’ s liberty fell within the ambit of Article 5 § 1 (f).", "49. Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent an individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996 ‑ V ). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009 ).", "50. The Court notes that the applicant remained in detention pending the enforcement of the order for his expulsion for a total period of two years and ten days. It appears that the only steps taken by the Russian authorities during that time were to write to the Embassy of Uzbekistan in Moscow five times, asking it to issue a travel document for the applicant. It is true that the Russian authorities could not compel the Embassy to issue such a document. However, there is no indication that they pursued the matter vigorously or endeavoured to enter into negotiations with the Uzbek authorities with a view to expediting its delivery ( compare Amie and Others v. Bulgaria, no. 58149/08, § 77, 12 February 2013; Raza v. Bulgaria, no. 31465/08, § 73, 11 February 2010; Tabesh, cited above, § 56; and Louled Massoud, cited above, § 66).", "51. It is a matter of particular concern to the Court that the Russian authorities sent their first letter to the Embassy of Uzbekistan more than four months after the applicant ’ s placement in custody. The letter concerned the applicant and twelve other individuals who were presumed to be nationals of Uzbekistan. While administrative convenience may call for a group treatment of similar requests under different circumstances, the fact that the applicant was in detention required special diligence from the authorities and the four-month delay was clearly in breach of that requirement (see Tabesh, cited above, § 56, in which the authorities remained passive for three months).", "52. Upon receipt of the letter from the Uzbek authorities dated 5 February 2013, the Russian authorities became aware that the applicant ’ s expulsion to Uzbekistan was no longer a realistic prospect because he was not a national of that State. The Government have not provided evidence of any efforts having been made to secure the applicant ’ s admission to a third country. There is no indication that they asked him to specify such a country or that they took any steps to explore that option on their own initiative (compare Amie and Others, cited above, § 77). The Court reiterates that detention cannot be said to have been effected with a view to the applicant ’ s deportation if this was no longer feasible (see Mikolenko v. Estonia, no. 10664/05, §§ 64-65, 8 October 2009). This was also conceded by the respondent Government.", "53. The Court further reiterates that the domestic authorities have an obligation to consider whether removal is a realistic prospect and whether detention with a view to removal is from the outset, or continues to be, justified (see Amie and Others, cited above, § 77, and Louled Massoud, cited above, § 6 8). In such circumstances the necessity of procedural safeguards becomes decisive. However, the Court has already established that the applicant did not have any effective remedy by which to contest the lawfulness and length of his detention, and the Government have not pointed to any other normative or practical safeguard. It follows that the Russian legal system did not provide for a procedure capable of preventing the risk of arbitrary detention pending expulsion ( see Azimov, cited above, §§ 153-54; Louled Massoud, cited above, § 71, and, mutatis mutandis, Soldatenko v. Ukraine, no. 2440/07, § 114, 23 October 2008 ). In the absence of such safeguards, the applicant spent the entire two-year period, that is, the maximum period the Russian law stipulates for the enforcement of an expulsion order, in detention.", "54. The Court is concerned about the applicant ’ s particularly vulnerable situation. As a stateless person, he was unable to benefit from consular assistance and advice, which would normally be extended by diplomatic staff of an incarcerated individual ’ s country of nationality. Furthermore, he appears to have no financial resources or family connections in Russia and he must have experienced considerable difficulties in contacting and retaining a legal representative. The domestic authorities do not appear to have taken any initiative to accelerate the progress of the removal proceedings and to ensure the effective protection of his right to liberty, although the decision by the Constitutional Court of 17 February 1998 may be read as expressly requiring them to do so (see paragraph 25 above). As a consequence, the applicant was simply left to languish for months and years, locked up in his cell, without any authority taking an active interest in his fate and well-being.", "55. Lastly, the Court reiterates that the maximum penalty in the form of deprivation of liberty for an administrative offence under the Code of Administrative Offences is thirty days (see Azimov, cited above, § 172 ) and that detention with a view to expulsion should not be punitive in nature and should also be accompanied by appropriate safeguards, as established by the Russian Constitutional Court (see paragraph 25 above). In this case the “preventive” measure, in terms of its gravity, was much more serious than the “punitive” one, which is abnormal (see Azimov, cited above, § 172).", "56. The foregoing considerations are sufficient to enable the Court to conclude that the grounds for the applicant ’ s detention – action taken with a view to his expulsion – did not remain valid for the whole period of his detention due to the lack of a realistic prospect of his expulsion and the domestic authorities ’ failure to conduct the proceedings with due diligence.", "57. There has accordingly been a violation of Article 5 § 1 (f) of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "58. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "59. The applicant asked the Court to determine the amount of compensation in respect of non-pecuniary damage. Having no identity documents or bank account, he asked the Court to order payment of any award into the bank account of his representative, Ms Tseytlina.", "60. The Government considered that the finding of a violation would constitute sufficient just satisfaction.", "61. The Court awards the applicant 30,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses", "62. The applicant also claimed EUR 1,070 for the work of two representatives in the domestic proceedings and before the Court.", "63. The Government submitted that the applicant failed to submit supporting documents.", "64. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the amount claimed, that is, EUR 1,070, covering costs under all heads plus any tax that may be chargeable to the applicant.", "C. Default interest", "65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION", "66. Article 46 of the Convention provides:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "67. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects.", "68. The present case has disclosed violations of some of the core rights protected by the Convention – prohibition of ill-treatment and the right to liberty – which were not prevented through domestic legal remedies. A situation similar to the one obtaining in the instant case arose in a case of three stateless persons of Roma origin who had spent almost one year in the same detention centre for aliens in St Petersburg pending their administrative removal from Russia, without judicial review of their detention. That case was terminated by way of a friendly settlement, with the Government undertaking to pay a sum of money to the applicants (see Lakatosh and Others v. Russia ( dec. ), no. 32002/10, 7 June 2011). In Azimov and follow-up cases the Court found a violation of Article 5 § 4 of the Convention on account of the fact that during the term of the applicants ’ detention pending expulsion they did not have at their disposal any procedure for judicial review of its lawfulness in the light of new factors which emerged subsequent to the decision on their initial placement in custody (see Azimov, cited above, §§ 153-54 ).", "69. In principle, it is not for the Court to determine possible appropriate measures of redress for a respondent State to carry out in accordance with its obligations under Article 46 of the Convention. With a view, however, to helping the respondent State fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Stanev v. Bulgaria [GC], no. 36760/06, § 255, 17 January 2012; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, ECHR 2009; and Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). The Court ’ s concern is to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection. In that connection, the Court considers that general measures at the national level are undoubtedly called for in the execution of the present judgment (see Driza v. Albania, no. 33771/02, § 125, ECHR 2007 ‑ V (extracts), and Louled Massoud, cited above, § 47 ).", "A. General measures to prevent similar violations", "70. In view of its finding of a violation of Article 5 § 4 in the instant case, the Court considers that it is necessary to indicate the general measures required to prevent other similar violations in the future. It has found a violation of Article 5 § 4 on account of the fact that the applicant, who was held in custody pending his expulsion from Russia, was unable to institute proceedings by which the lawfulness of his detention could be examined by a court and his release ordered if the detention ceased to be justified (see paragraph 43 above).", "71. Thus, the Court considers that the respondent State must above all, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism which allows individuals to institute proceedings for the examination of the lawfulness of their detention pending removal in the light of the developments in the removal proceedings. The Court reiterates that although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom, cited above, § 203, and Idalov v. Russia [GC], no. 5826/03, § 161, 22 May 2012).", "72. The Court has also found a violation of Article 5 § 1 of the Convention on account of the unreasonable duration of the applicant ’ s detention. Accordingly, it recommends that the respondent State envisage taking the necessary general measures to limit detention periods so that they remain connected to the ground of detention applicable in an immigration context (see paragraph 55 above, Suso Musa v. Malta, no. 42337/12, § 123, 23 July 2013, and the Constitutional Court ’ s decision no. 6-P cited in paragraph 25 above).", "B. Remedial measures in respect of the applicant", "73. The Court further notes that, in addition to being stateless, the applicant appears to have no fixed residence and no identity documents. The Court is therefore concerned that following his release, the applicant ’ s situation has remained irregular from the standpoint of Russian immigration law. He thus risks exposure to a new round of prosecution under Article 18.8 of the Code of Administrative Offences, cited in paragraph 23 above.", "74. The Court is therefore convinced that it is incumbent upon the Russian Government to avail itself of the necessary tools and procedures in order to prevent the applicant from being re-arrested and put in detention for the offences resulting from his status of a stateless person. Given the variety of means available to achieve this aim and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific individual measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the applicant ’ s evolving situation, the adoption of such measures that are feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court (see Savriddin Dzhurayev v. Russia, no. 71386/10, § 255, ECHR 2013 (extracts) )." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1948 and lives in Fougaron.", "8. On 12 June 1996 the Haute- Garonne Assize Court sentenced the applicant to fifteen years' imprisonment for armed robbery carried out as part of a gang, false imprisonment and fraud. He was detained in Lannemezan Prison ( département of Hautes-Pyrénées ).", "9. In late 1998 his health deteriorated.", "10. On 8 January 1999 a doctor from the Outpatient Consultation and Treatment Unit ( unité de consultation et de soins ambulatoires – “the UCSA”) at Lannemezan Prison issued a medical certificate, which stated:", "“This patient has a history of serious [medical] problems ...", "He was recently found to have B-cell chronic lymphocytic leukaemia, with some evidence of tumour ...", "The leukaemia is currently not accompanied by any alteration of the other cell lines; in particular, there is no sign of anaemia or thrombocytopenia.", "However, bilateral axillary adenopathy is present, predominantly on the right-hand side.", "This certificate has been issued at the patient's request and handed to him in connection with an application for parole on medical grounds.”", "11. On 30 September 1999 a further medical report stated:", "“This patient has chronic lymphocytic leukaemia, which has caused severe asthenia. Furthermore, there are signs of orthopaedic disorders as a result of an injury to the left knee and the left ankle causing osteoarthritis of the left patellofemoral and tibiofemoral joints and making it painful for him to remain for long periods in a seated position with his legs bent.", "In addition, on account of the orthopaedic disorders observed in his left lower limb, the patient has to use a walking stick to move about.", "His condition is not compatible with the use of restraints on his lower limbs.”", "12. On 6 December 1999 the UCSA doctor advised against applying restraints to the applicant's lower limbs.", "13. The applicant applied to the French President for a pardon on medical grounds, but his application was refused on 7 March 2000.", "14. On 31 March 2000 International Prison Watch (IPW) issued the following press release:", "“ No early release for prisoners with serious illnesses", "On 7 March 2000 the Minister of Justice refused applications for a pardon lodged on behalf of a prisoner suffering from a rapidly progressive disease.", "52-year-old Jean Mouisel is currently in Lannemezan Prison. He was diagnosed with chronic lymphocytic leukaemia in November 1998. Jean Mouisel has served two-thirds of his sentence. If remissions of sentence are taken into account, he will be due for release in 2002. On 24 February 2000 a doctor from the UCSA at Lannemezan Prison drew up a certificate attesting that the disease was transforming into lymphoma and that an extended course of cancer treatment involving chemotherapy was therefore necessary. This prisoner is taken to hospital once a week and has to endure his illness while in detention. He is allowed only one visit a week from his relatives, in accordance with the prison's rules.", "His doctor and various associations applied for a pardon on his behalf. The Ministry of Justice, which centralises such applications and takes an initial decision, did not see fit to refer his case to the President's Private Office.", "IPW wishes to stress that 'no one shall be subjected to torture or to inhuman or degrading treatment or punishment' (Article 3 of the European Convention on Human Rights).”", "15. On 12 May 2000 the UCSA doctor drew up a further medical certificate, which stated:", "“This patient has chronic lymphocytic leukaemia, which was diagnosed in November 1998 and is currently transforming into lymphoma.", "The lymphoma was diagnosed in early February 2000 during a check-up at the haematology department at Purpan Hospital in Toulouse.", "Mr Mouisel's condition currently requires him to undergo cancer treatment in the form of chemotherapy sessions as a hospital outpatient every three weeks.", "At the moment, he is receiving chemotherapy at Lannemezan Hospital 's medical and surgical centre. The patient's haematological condition will need to be reassessed in early August 2000 once he has finished the chemotherapy he is currently receiving.", "It is subsequently envisaged that he will begin oral chemotherapy, depending on the reassessment to be carried out at Toulouse University Hospital.", "The compatibility of his condition with his continued detention remains to be determined by an expert.”", "16. On 3 June 2000 the applicant wrote to tell the prison governor about a chemotherapy session that had taken place at Lannemezan Hospital on 30 May 2000 :", "“... After an hour and forty-five minutes, the force of my drip was causing me too much pain. My suffering was so great that I had to lower the speed of the drip. That action was not appreciated by the warder in charge of my escort, Mr T., who came into the room red with anger, yelling and screaming. He told me that if the nurse had turned the drip on full, then I was not to touch it. As he put it, 'he and the other member of the escort were not going to spend all day at the hospital'.", "I was surprised at how aggressive they were being towards me, and I wanted to pull out the drip. The pain was too intense; it was making me suffer and was becoming unbearable ... The intervention of the doctor and nurse ... persuaded me to end the chemotherapy session. After the doctor had gone, the chief escort officer told me that the matter would be dealt with when we got back to the prison.", "At the end of the chemotherapy session, I felt worse than ever as the injection had made me feel much weaker ... I was duly handcuffed and dragged with brute force along the hospital corridors on a chain which the warder was holding, no doubt as a form of retribution. When we got back that morning, I was handcuffed in the usual way without force.", "I am being treated for leukaemia, a cancer of the blood which is nothing like a mere case of the flu! In my case, unfortunately, there is no possible cure; the disease I have caught here at Lannemezan Prison is incurable.", "I am therefore entitled to conclude that the prison staff who escort me to the hospital regularly ask the nurses to make sure that I am injected as quickly as possible so that they do not have to spend all day waiting around for me.", "As there is currently no way of solving the problem on an administrative level, I shall have to give up the chemotherapy sessions for the time being. I am not refusing the treatment, but the conditions in which I am receiving it are not satisfactory ... This has been going on for several months and I cannot stand it any longer. My physical condition cannot allow it and my morale is getting lower every day. I am dying, but I would like to die peacefully and not in an atmosphere of conflict.”", "17. Following a further application for a pardon on medical grounds, the Ministry of Justice instructed an expert at the Pau Court of Appeal to assess the applicant's state of health, the treatment he required and the manner in which it should be administered, the likelihood of any changes (for example, regarding life expectancy), and whether his condition and the forms of treatment in progress or envisaged were compatible with detention in a specialist unit. The expert's report, completed on 28 June 2000, read as follows:", "“... Recent developments", "According to the certificate of 12 May 2000, Mr Mouisel has a form of chronic leukaemia which was diagnosed in 1998 and is currently transforming into lymphoma ...", "His condition has necessitated an intensive course of chemotherapy administered following the insertion of a'portacath '.", "His condition has also required him to be taken to hospital in a non-emergency ambulance for chemotherapy sessions (at the outpatient department of Lannemezan Hospital 's medical and surgical centre), initially every week and subsequently every three weeks ...", "Clinical condition on the date of the examination", "Functional symptoms complained of by the patient:", "– permanent asthenia and fatigue;", "– waking up in pain during the night;", "– ...", "– muscle fatigue and breathlessness;", "– alleged psychological impact of stress on his life expectancy and deterioration of his health (this condition has led to his being prescribed a course of antidepressants, which he is currently taking) ...", "It should be noted that these functional symptoms are to a large extent attributable to the chemotherapy he has been undergoing ...", "Particular mention should be made of a problem relating to the escort and supervision arrangements during visits to hospital for chemotherapy sessions. Indeed, since 20 June 2000 the patient has not consented to treatment.", "Clinical examination", "...", "It should be noted that, according to the documents produced, Mr Mouisel's current degree of disablement was assessed at 80% by the COTOREP [Occupational Counselling and Rehabilitation Board] in a decision of 6 April 2000, and he was awarded a disabled adult's allowance for the period from 2 February 1999 to 2 February 2001.", "Conclusion", "By the date of the examination the applicant's health had deteriorated as a result of the progression of his haematological disorder, diagnosed in November 1998 as leukaemia ...", "Mr Mouisel is currently undergoing intensive chemotherapy as an outpatient at Lannemezan Hospital, where he is taken for treatment every three weeks by medical transport (a non-emergency ambulance).", "The cancer treatment, ... which is already scarcely compatible with imprisonment, is at present causing problems as a result of the position he has adopted recently in not consenting to treatment in the conditions in which he is currently being detained (this has lasted since 20 June 2000, the date scheduled for his treatment).", "His not consenting to treatment, in spite of all the information received from the UCSA medical team in Lannemezan, is likely to bring about the rapid progression of the disorder observed recently and a reduction in his life expectancy.", "Accordingly, he should be looked after in a specialist unit.”", "18. On 19 July 2000 the applicant was transferred as a matter of urgency to Muret Prison (so that he would be nearer to Toulouse University Hospital ) and given a cell of his own.", "19. On 3 October 2000 the applicant applied to the département of Haute- Garonne's Health and Social Affairs Department for acknowledgment of a vaccination-related accident, claiming that he had contracted cancer as a result of a hepatitis-B vaccination. On 24 October 2000 he received a reply from the Ethics and Law Office of the Ministry of Social Affairs and Solidarity informing him that strict liability could not be imposed on the State except for damage sustained as a result of the compulsory vaccinations provided for in the Public Health Code. Hepatitis-B vaccinations were compulsory only for certain occupational groups exposed to a risk of contamination, and the applicant did not belong to any such group.", "20. On 14 November 2000 the applicant was notified of a reply by the Regional Director of the Prison Service to his complaints concerning the application of Article 803 of the Code of Criminal Procedure (“the CCP”) on the use of handcuffs or restraints (see “Relevant domestic law and practice” below):", "“... The provisions of the Article do not establish an absolute prohibition on the use of handcuffs or restraints and do not expressly refer to the detainee's health. They leave the matter to the discretion of those responsible for laying down, and enforcing, security measures: gendarmes, police officers or prison warders.", "Moreover, Article D 283 CCP provides that handcuffs or restraints are to be used solely in connection with 'precautions against absconding', except where a person is being brought before a judicial authority. Where a long sentence is being served for criminal acts causing bodily harm, the appropriate measures are applied.”", "21. On 20 November 2000 the Minister of Justice refused an application for a pardon lodged on the applicant's behalf by the Ligue des droits de l'homme (Human Rights League).", "22. On 24 November 2000 the applicant received a letter from the doctor who had treated him in Lannemezan :", "“... As regards your condition, there does seem to be a change taking place at the moment ... I think it is always worth fighting an illness, whatever it may be; even if there is no possible cure, a remission in the disease is still possible, especially as Dr N. is offering you a new course of chemotherapy, which I would strongly advise you to agree to ...”", "23. A medical certificate issued on 21 February 2001 by a doctor from the haematology department at Toulouse Hospital reads as follows:", "“Mr Mouisel has been treated by our department since February 2000 for chronic lymphocytic leukaemia, initially with tonsillar hypertrophy on both sides causing dysphagia, and substantial axillary adenopathy on the right-hand side (15 cm in diameter).", "He was initially given chemotherapy once a week using the COP protocol, then once a month with CVP, and subsequently with chlorambucil.", "The results obtained were satisfactory, but in November 2000 we noticed a renewed increase in the size of the right axillary adenopathy and therefore resumed monthly chemotherapy using the CVP protocol.", "A biopsy of the lymph nodes in January revealed the presence of Hodgkin's disease. Three cycles of chemotherapy using the ABVD protocol are therefore envisaged, followed by additional radiotherapy.”", "24. In an order of 22 March 2001 the judge responsible for the execution of sentences at the Toulouse tribunal de grande instance released the applicant on parole until 20 March 2005, subject to an obligation to receive medical treatment or care:", "“Admissibility", "Mr Mouisel exercises parental responsibility over his daughter, born on 4 September 1993 ..., and no ancillary penalties have been imposed on him entailing the forfeiture of that right.", "Article 729-3 CCP empowers the judge responsible for the execution of sentences to decide cases concerning prisoners who have less than four years of their sentence to serve and who exercise parental responsibility over a child under the age of 10.", "Merits", "It appears from the medical certificates adduced in evidence (dated 7 December 2000 and 3 January and 21 February 2001) that the applicant's condition has become incompatible with his continued detention, on account of the medical care he requires during regular visits to hospital.", "It is therefore appropriate, notwithstanding his criminal record, to release the applicant on parole, subject to his staying at his wife's home (see the declaration of 30 January 2001 ) and receiving treatment in accordance with a medical protocol at Purpan Hospital. ...”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "25. French National Assembly – Report drawn up on behalf of the Commission of Inquiry on the situation in France 's prisons (vol. I, p. 249, 28 June 2000 )", "Extract from Part V (“Controlling the prison population: an essential goal”):", "“A. Stemming the influx", "(1) Limiting the imprisonment of certain groups", "...", "(e) Sick or elderly prisoners", "The increasing number of elderly prisoners has already been noted; at the end of 1999 there were 1,455 prisoners over the age of 60, a figure which has almost doubled in four years. This upsurge is linked, in particular, to the rise in the number of convictions for sexual harassment, rape and incest.", "The inadequate provision of care for those prisoners and, more broadly, for prisoners who are seriously ill or dependent has also been discussed.", "The presence of such persons in prison raises the very real issue of their dying there. Warders and other inmates are not prepared for that eventuality and no proper arrangements are in place for assisting prisoners in their final moments. Dying in prison means experiencing a feeling of hopeless solitude. It amounts to an admission of failure and waste for families unable to be present as the end approaches.", "All prison staff try, wherever possible, to transfer inmates to hospital in their final days; however, this again raises the issue of escort officers and the difficulty of calling on the services of the police or the gendarmerie. Mention has also frequently been made of the attitude of doctors, who all too often send patients back to prison once the alert is over, just as easily as though they were returning home. One case in Caen where a doctor sent the patient back to prison only for him to die two days later seems to have had a particularly profound effect on prison staff.", "There is no dignity in dying in prison. The question therefore arises whether the sick or the elderly should continue to be detained. Currently, the President alone is empowered to grant a pardon on medical grounds. However, it appears that this measure is recommended sparingly and granted even more cautiously; in 1998 twenty-seven such applications were referred to the President and pardons were granted in fourteen cases, while in 1999 eighteen out of thirty-three proposals resulted in a pardon.", "...", "Indeed, a review of the procedure for granting pardons on medical grounds would appear necessary; there is no reason why such decisions should continue to be left to the President. Responsibility for the procedure should be vested in the judge for the execution of sentences, who could base his decision on expert medical assessments in which it was concluded that the prisoner was suffering from a life-threatening illness.”", "26. The Code of Criminal Procedure (CCP)", "(i) Since the Law of 18 January 1994 came into force the provision of treatment for prisoners has been the responsibility of the public hospital service. Accordingly, prisoners receive treatment from medical units that are set up within prisons and are directly attached to the nearest public hospital (Article D 368).", "(ii) The CCP contains the following provisions on parole:", "Article 722", "“At each prison the judge responsible for the execution of sentences shall determine the principal terms of detention for each convicted person. Subject to the limits and conditions prescribed by law, he shall grant ... parole ... Except in urgent cases, he shall give his decision after hearing the opinion of the Sentences Board ...", "...”", "(Law no. 2000-516 of 15 June 2000, applicable from 1 January 2001 ) “Measures entailing ... parole shall be granted, deferred, refused, withdrawn or revoked in a reasoned decision by the judge responsible for the execution of sentences, who shall examine the case of his own motion, at the request of the convicted person or on an application by the public prosecutor ...”", "Article 729", "(Law no. 2000-516 of 15 June 2000 ) “Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities, or regularly attended an education or vocational training course, or have taken part in a work-experience scheme, or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment ...”", "(Law no 92-1336 of 16 December 1992) “Subject to Article 132-23 of the Criminal Code, parole may be granted if the length of the sentence already served by the prisoner is at least equal to that remaining to be served. However, reoffenders ... may only be granted parole if the length of the sentence already served is at least double that remaining to be served. ...”", "Article 729-3", "(Law no. 2000-516 of 15 June 2000 ) “Parole may be granted to any person who has been sentenced to a term of imprisonment of four years or less, or who has four years or less of his or her sentence to serve, where the person exercises parental responsibility over a child under the age of 10 who habitually lives with him or her.", "...”", "Article 730", "“Where a prison sentence of ten years or less has been imposed, or where, regardless of the length of the sentence initially imposed, the portion remaining to be served amounts to three years or less, parole shall be granted by the judge responsible for the execution of sentences, in the manner prescribed in Article 722.", "In other cases, parole shall be granted by the regional parole court, in the manner prescribed in Article 722-1.", "...”", "A circular of 18 December 2000 (CRIM 00-15 F1), outlining the provisions of the Law of 15 June 2000 on reinforcing the presumption of innocence and victims' rights in relation to the enforcement of sentences, states:", "“Under the new Article 729-3 ..., parole may be granted to any person who has been sentenced to a term of imprisonment of four years or less, or who has four years or less of a sentence to serve, where that person exercises parental responsibility over a child under the age of 10 who habitually lives with him or her. ...", "Those provisions do not invalidate the general requirement in Article 729 whereby the judge responsible for the execution of sentences must assess whether serious efforts have been made to readjust to society. They do not therefore imply that the granting of parole for which they provide is systematic.", "However, depending on the length of the initial sentence, they may allow prisoners to be released at an earlier stage than would be possible under that Article. ...”", "The provisions in question increase the powers of the judge responsible for the execution of sentences with regard to parole and are designed to counter long-standing criticism of the fact that French law previously made no provision for the early release of terminally ill prisoners, other than by means of an application for a pardon on medical grounds at the discretion of the French President (Articles 17 and 19 of the Constitution).", "(iii) A law of 4 March 2002 on patients' rights and the quality of the health system supplements the CCP and adds a new Article 720-1-1 providing for the possibility of suspending a sentence “regardless of the nature of the sentence or the portion remaining to be served ... where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital”. The judge may direct that the sentence be suspended indefinitely. He must arrange for two expert assessments in order to determine whether a sentence should be suspended or whether a suspension should be lifted.", "( iv ) Article 803 CCP provides :", "“No one may be forced to wear handcuffs or restraints unless he is considered either a danger to others or to himself, or likely to attempt to abscond.”", "A general circular on that Article (C 803 of 1 March 1993) states:", "“Section 60 of the Law of 4 January 1993, which came into force on the date of its publication, introduces an Article 803, laying down the principle that no one may be forced to wear handcuffs or restraints unless he is considered either a danger to others or to himself, or likely to attempt to abscond. That provision applies to all members of an escort, regardless of whether the person concerned is being held in police custody, brought to court, detained pending trial or detained following conviction. It is for the public officials or members of the armed forces comprising the escort to assess, having regard to the circumstances of the case, to the age of the person under escort and to any information obtained about his character, whether there is evidence of any of the dangers which alone may justify the use of handcuffs or restraints, in accordance with the legislature's intention.", "Except in special circumstances, persons being detained by the police after voluntarily surrendering to custody, persons whose mobility is impaired on account of their age or health and persons sentenced to only a short term of imprisonment are unlikely to pose the dangers referred to in the Law. ...”", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "27. Report to the Government of the French Republic on the visit to France by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 14 to 26 May 2000", "Although the quality of the material conditions of detention at Lannemezan Prison was found to be high (see paragraph 78 of the report), transfers to outside hospitals continued to cause the CPT concern during its prison visits:", "“In spite of the recommendations made by the CPT in paragraph 144 of its report on the 1996 visit, the delegation that carried out the visit in 2000 has again obtained information (especially in Lyons) suggesting that the conditions in which detainees are transferred to hospital and examined and treated there are in breach of medical ethics: patients are systematically handcuffed with force, regardless of their state of health or age, are examined and treated in the presence of law-enforcement officials, and are physically attached to their hospital beds.", "In this connection, the French authorities have pointed out that they have drawn up a draft circular to promote the application of the principle that handcuffs or restraints are to be used in exceptional cases only.", "The CPT recommends that the adoption of the circular be expedited and that the document contain express reference to the recommendations set out in paragraph 144 of its report on the 1996 visit, namely:", "– that all medical check-ups, examinations and treatment in public hospitals take place out of the hearing and – unless the medical staff concerned request otherwise in a given case – out of the sight of law-enforcement officials;", "– that the practice of attaching prisoners to their hospital beds for security reasons be prohibited. ...", "The CPT calls upon the French authorities to complete the implementation of the national hospitalisation scheme as soon as possible in order to ensure that, throughout the country, prisoners are provided with hospital treatment in conditions that comply with medical ethics and respect human dignity.” (paragraph 105 of the report)", "28. Third General Report on the CPT's activities covering the period 1 January to 31 December 1992 (Section III – Health care services in prisons)", "“(iv) prisoners unsuited for continued detention", "Typical examples of this kind of prisoner are those who are the subject of a short-term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.”", "29. Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe concerning the ethical and organisational aspects of health care in prison (adopted on 8 April 1998 )", "“C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis", "50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment.", "51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.”", "30. Recommendation Rec (2000)22 of the Committee of Ministers to the member States on improving the implementation of the European rules on community sanctions and measures", "Appendix 2 : guiding principles for achieving a wider and more effective use of community sanctions and measures:", "“ Legislation", "1. Provision should be made for a sufficient number of suitably varied community sanctions and measures of which the following are examples:", "...", "– suspension of the enforcement of a sentence to imprisonment with imposed conditions;", "...”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "31. The applicant complained of his continued detention and the conditions in which he had been detained despite being seriously ill. He relied on Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties' submissions", "32. The applicant considered that imprisonment should merely entail depriving a person of his freedom of movement and that all other fundamental rights remained intact during detention. The Court should therefore, in his opinion, set out to determine whether the suffering he had endured in the course of his illness while in prison had attained a sufficient level of severity to fall within the scope of Article 3 of the Convention.", "33. In the applicant's submission, detention was in itself incompatible with the condition of prisoners suffering from life-threatening diseases. He had been in that position from 1998 onwards, and a fortiori in June 2000 when Dr D. had concluded in his report that treatment in a specialist unit was necessary. In spite of that, the authorities had merely transferred him to Muret Prison instead of suspending his sentence as was possible under Article 722 of the Code of Criminal Procedure or allowing his application for a pardon on medical grounds. The enactment of the Law of 4 March 2002 (see “Relevant domestic law and practice” above) amounted, he argued, to an acknowledgment that Article 3 of the Convention was breached where continued detention was incompatible with an extremely serious medical condition.", "34. The severity of the suffering he had endured while in detention and the manner in which he had been provided with medical care also qualified as treatment contrary to Article 3 of the Convention.", "Firstly, his detention in a communal cell in Lannemezan Prison until June 2000 without any sanitary precautions being taken, at a time when his immune system was being severely weakened by chemotherapy, had created an inhuman and degrading situation for him.", "Furthermore, the appalling conditions in which he had been escorted from prison to receive medical treatment, being constantly kept in chains despite having never attempted to abscond, had caused him suffering and placed him in a degrading situation. The applicant added that the journeys to hospital in a prison van had been painful (an ambulance had not been used for hospital visits until May 2000). He also asserted that during the chemotherapy sessions his feet had been chained up and one of his wrists had been attached to his hospital bed. He had also been kept in chains during an operation carried out in late 1999 with his escort and gendarmes present, on which occasion he had been fitted with a “ portacath ” so that treatment could be administered to him. The applicant considered that the use of handcuffs had been unjustified in view of his physical weakness and his unblemished disciplinary record, and submitted that there had been no particular reason for the escort officers to think that he posed any kind of danger.", "Lastly, the applicant complained of the conditions in which he had been given treatment with law-enforcement officers present. Their presence had been particularly humiliating and had led to his refusal to consent to treatment in June 2000.", "The applicant concluded that his treatment in prison had been inappropriate in view of his medical condition and had caused sufficient physical and mental suffering to amount to inhuman and degrading treatment within the meaning of Article 3 of the Convention.", "35. The Government submitted that the applicant's health had been regularly monitored by the Outpatient Consultation and Treatment Unit at Lannemezan Prison and at Toulouse University Hospital. When he had been transferred to Muret Prison, his medical records had been handed over to the prison's consultation and treatment unit, which had consequently been able to follow up the treatment. From November 2000 onwards the applicant had been taken to Toulouse University Hospital for monthly chemotherapy sessions as an outpatient. That treatment had continued on a regular basis until the applicant had been released.", "The Government observed that the applicant had been in prison since 20 July 1994 but had not had any health problems until late 1998. His health had therefore deteriorated from 1998 onwards. A medical certificate drawn up on 12 May 2000 in connection with an application for a pardon had mentioned the need for an expert opinion. The ensuing report, drawn up on 28 June 2000, had emphasised the problems arising on account of the applicant's refusal to consent to the cancer treatment he had been prescribed; in that context, the expert had concluded that the applicant should be looked after in a specialist unit. The judicial authorities had taken immediate action on the report in deciding to transfer him to Muret Prison so that he would be closer to Toulouse University Hospital. The fact that he had been transferred there on 19 July 2000, less than a month after the expert had submitted his findings in the above-mentioned report, demonstrated the constant concern on the part of the relevant authorities to ensure that the applicant's conditions of detention were compatible with his state of health.", "The Government noted that the applicant had been given a cell of his own at Muret Prison (although in their additional observations they stated that that had also been the case at Lannemezan Prison), that he had worked there and that he had also maintained contact with the outside world by means of the telephone, mail, the visiting room and periods of prison leave.", "As to the conduct of the chemotherapy sessions, the Government observed that the applicant had alluded to an incident on 30 May 2000 when he had attempted to alter the speed of his own drip. In that connection, they maintained that escort officers played no part in determining the time required for treatment or providing medical supervision, matters for which the medical and paramedical staff alone were responsible.", "As regards the use of handcuffs, the Government acknowledged that restraints had indeed been applied to the applicant during the journey between the prison and the hospital but had been removed as soon as he had arrived in the treatment room, where none of the prison staff had been present. They argued that the use of restraints had been justified by the applicant's previous convictions for serious offences (according to the Government, he had been sentenced to twenty years' imprisonment for murder on 5 May 1976, and to eight years' imprisonment for armed robbery on 15 June 1987) and by the fact that his family home in Toulouse was close by, so that it could not be ruled out that he might be assisted by local accomplices, particularly in view of the regularity and frequency of his journeys to the same hospital along an easily identifiable route. At the time of the incident of 30 May 2000 the considerable portion of his sentence remaining to be served, the successive refusals of his applications for a pardon on medical grounds and his criminal record could legitimately have aroused fears that he would attempt to abscond with the help of local accomplices. The Government further stated that, according to information supplied by the prison authorities, the use of restraints on the applicant's lower limbs had been stopped, albeit on an unspecified date, on account of the pain he was suffering and the fact that he had to use a walking stick to move about. At a similar time the handcuffs had been replaced by a lighter chain, as the applicant had also complained of pain in his arms as a result of the intravenous drip.", "In the Government's submission, all those factors showed that the relevant authorities had systematically taken the applicant's health into account in determining and altering his prison regime. That was borne out by the fact that as soon as the applicant had satisfied the statutory requirements for obtaining parole, his application had been examined and allowed within a very short space of time.", "Consequently, relying on the Court's decision in Papon v. France (no. 1) ((dec.), no. 64666/01, ECHR 2001-VI), the Government submitted that the applicant's conditions of detention had never attained a sufficient level of severity to fall within the scope of Article 3 of the Convention.", "B. The Court's assessment", "36. The Court observes in the first place that the applicant was granted parole on 22 March 2001. It will therefore examine his complaint alleging a violation of Article 3 of the Convention in relation to the period extending from that date back to 8 January 1999, the date of the medical report in which the applicant's illness was first diagnosed – that is to say, a period of more than two years.", "37. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers, cited above, § 74).", "38. The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention (see Chartier v. Italy, no. 9044/80, Commission's report of 8 December 1982, Decisions and Reports (DR) 33, p. 41; De Varga-Hirsch v. France, no. 9559/81, Commission decision of 9 May 1983, DR 33, p. 158; and B. v. Germany, no. 13047/87, Commission decision of 10 March 1988, DR 55, p. 271). In the case of a prisoner suffering from disorders associated with hereditary obesity, the Commission expressed the opinion that there had been no violation of Article 3 of the Convention because the applicant had been provided with care appropriate to his state of health. It considered, however, that detention per se inevitably affected prisoners suffering from serious disorders. It took care to point out that “in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies to be taken in the form of humanitarian measures” and stated in conclusion that it would “appreciate any measures the Italian authorities could take vis-à-vis the applicant in order to alleviate the effects of his detention or to terminate it as soon as circumstances require” (see Chartier, Commission's report cited above, pp. 57-58). The Court recently observed that the detention of an elderly sick person over a lengthy period could fall within the scope of Article 3, although in the decision in question it held that the applicant's complaint under that Article was manifestly ill-founded (see Papon (no. 1), cited above). Health, age and severe physical disability are now among the factors to be taken into account under Article 3 of the Convention in France and the other member States of the Council of Europe in assessing a person's suitability for detention (see paragraphs 26, 27, 29 and 30 above).", "39. Thus, in assessing a prisoner's state of health and the effects of detention on its development, the Court has held that certain types of treatment may infringe Article 3 on account of the fact that the person being subjected to them is suffering from mental disorders (see Keenan v. the United Kingdom, no. 27229/95, §§ 111-15, ECHR 2001-III). In Price v. the United Kingdom the Court held that detaining the applicant, who was four-limb deficient, in conditions inappropriate to her state of health amounted to degrading treatment (no. 33394/96, § 30, ECHR 2001-VII).", "40. Although Article 3 of the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79). The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment (see Kudła, cited above, § 94).", "41. In the instant case the Court observes that the judge responsible for the execution of sentences considered that the applicant's state of health was in itself incompatible with detention from 22 March 2001 onwards. The fact that he required medical treatment during regular visits to hospital justified releasing him on parole, subject to his staying with his relatives (see paragraph 24 above).", "42. Accordingly, the instant case raises the question whether the applicant's state of health, which was giving serious cause for concern, was compatible with his continued imprisonment in that condition. In a climate of increasing awareness of the prison situation, France is faced with the problem of sick prisoners and their continued detention in circumstances which no longer appear justified in terms of protecting society (see the National Assembly report referred to in paragraph 25 above).", "43. The Court takes note of developments in France 's legislation on the matter, which has increased the powers of the judge responsible for the execution of sentences in respect of seriously ill prisoners. As it has already pointed out, French law affords the national authorities various means of intervening where detainees are suffering from serious medical problems. A prisoner's health may be taken into account in a decision to grant parole under Article 729 of the Code of Criminal Procedure as amended by the Law of 15 June 2000, in particular where the prisoner has “to undergo treatment”. Furthermore, under the Law of 4 March 2002 on patients' rights, prisoners' sentences may be suspended if they are suffering from a life-threatening illness or if their condition is incompatible in the long term with their continued detention (see paragraph 26 above). The Court accordingly notes that the health of a detainee is now among the factors to be taken into account in determining how a custodial sentence is to be served, particularly as regards its length. In that way, practical expression has been given to the Court's statement that “the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies” (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V).", "44. The Court notes that the procedural arrangements introduced by the laws of 15 June 2000 and 4 March 2002 have provided for new remedies before the judge responsible for the execution of sentences, enabling prisoners whose health has deteriorated significantly to apply to be released at short notice; those remedies are available in addition to the possibility of applying for a pardon on medical grounds, which the French President alone is empowered to grant. It considers that these judicial procedures may provide sufficient guarantees to ensure the protection of prisoners' health and well-being, which States must reconcile with the legitimate requirements of a custodial sentence. However, it must be acknowledged that those procedures were not available to the applicant during the period of detention considered by the Court and that the State's only response to his situation was to refuse his applications for a pardon on medical grounds without stating any reasons. As the Government noted, the applicant could not have been released on parole until he satisfied the eligibility requirements – that is to say, not until 2001. Moreover, the possibility of applying to have his sentence suspended did not exist at the time of his detention.", "45. That being so, the Court will examine whether the applicant's continued detention gave rise to a situation which attained a sufficient level of severity to fall within the scope of Article 3 of the Convention. The Court observes that the applicant's health was found to be giving more and more cause for concern and to be increasingly incompatible with detention. The report of 28 June 2000 referred to the difficulty of providing cancer treatment in prison and recommended transferring him to a specialist unit. It also mentioned the applicant's psychological condition, which had been aggravated by the stress of being ill and had affected his life expectancy and caused his health to decline. The letter of 20 November 2000 from the UCSA doctor to the applicant confirmed that his health was deteriorating and referred only to the possibility of a remission in the disease. All those factors show that the applicant's illness was progressing and that the prison was scarcely equipped to deal with it, yet no special measures were taken by the prison authorities. Such measures could have included admitting the applicant to hospital or transferring him to any other institution where he could be monitored and kept under supervision, particularly at night.", "46. The conditions in which the applicant was taken to hospital also raise a number of issues. There is no doubt that the applicant was kept in chains while under escort, although the chains started to be applied less tightly once the doctors advised against using restraints. However, it has not been established that he was chained up while receiving treatment or that members of the prison escort were present on those occasions. The Court notes, however, that the reply from the Regional Director of the Prison Service about the use of handcuffs implicitly suggests that the applicant's illness did not exempt him from being handcuffed and that the manner in which the handcuffs were used is standard practice in the context of detention.", "47. The Court reiterates that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage (see Raninen v. Finland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2822, § 56). In the instant case, having regard to the applicant's health, to the fact that he was being taken to hospital, to the discomfort of undergoing a chemotherapy session and to his physical weakness, the Court considers that the use of handcuffs was disproportionate to the needs of security. As regards the danger presented by the applicant, and notwithstanding his criminal record, the Court notes the absence of any previous conduct or other evidence giving serious grounds to fear that there was a significant danger of his absconding or resorting to violence. Lastly, the Court notes the recommendations of the European Committee for the Prevention of Torture concerning the conditions in which prisoners are transferred to hospital to undergo medical examinations – conditions which, in the Committee's opinion, continue to raise problems in terms of medical ethics and respect for human dignity (see paragraph 28 above). The applicant's descriptions of the conditions in which he was escorted to and from hospital do not seem very far removed from the situations causing the Committee concern in this area.", "48. In the final analysis, the Court considers that the national authorities did not take sufficient care of the applicant's health to ensure that he did not suffer treatment contrary to Article 3 of the Convention. His continued detention, especially from June 2000 onwards, undermined his dignity and entailed particularly acute hardship that caused suffering beyond that inevitably associated with a prison sentence and treatment for cancer. In conclusion, the Court considers that the applicant was subjected to inhuman and degrading treatment on account of his continued detention in the conditions examined above.", "There has therefore been a violation of Article 3 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "49. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "50. The applicant claimed the following sums: 304,898 euros (EUR) for the physical suffering endured while in detention, the same amount for mental suffering and EUR 400,000 for damage on account of his reduced life expectancy.", "51. The Government pointed out that awards of just satisfaction were designed to compensate solely for damage sustained as a result of the Convention violation found by the Court. Accordingly, it was impossible to speculate as to what the applicant's life expectancy would have been if he had been detained in different conditions. Furthermore, he had been released on 22 March 2001. No award should be made in respect of his reduced life expectancy as there was no direct link between the damage thus sustained and any violation of Article 3 that the Court might find.", "If the Court were to find that there had been a violation of Article 3, the Government considered the applicant's claims manifestly excessive and proposed an award of EUR 9,000 in respect of all heads of damage taken together.", "52. The Court considers that the applicant may have experienced considerable anxiety as a result of his detention and that he sustained non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 15,000 under this head.", "B. Costs and expenses", "53. The applicant did not claim anything under this head.", "C. Default interest", "54. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1965 and is presently serving a prison sentence in Požega Penitentiary.", "1. Criminal proceedings against the applicant", "5. On 24 April 2001 the Požega Municipal Court ( Općinski sud u Požegi ) convicted the applicant of fraud and sentenced her to eight months'imprisonment. The court also ordered her to pay 44,000 Croatian kunas (HRK) in damages to the injured party. The first - instance judgment was upheld by the Požega County Court ( Županijski sud u Požegi ) on 21 November 2001.", "6. The applicant served the sentence in Požega Penitentiary from 10 January until 2 9 August 2003, when she was conditionally released. Her conditional release expired on 10 September 2003.", "7. On 22 November 2001 the Zagreb Municipal Court ( Općinski sud u Zagrebu ) convicted the applicant on eight counts of fraud, sentenced her to four years'imprisonment and confiscated HRK 210,782 from her, which it attributed to the proceeds from her criminal activity. The court also ordered her to pay HRK 359,416.17 in damages to various injured parties. The sixth count of the applicant's conviction was identical to the offence for which the applicant had been sentenced by the Požega Municipal Court on 24 April 2001. The judgment was upheld on 8 July 2003 by the Zagreb County Court ( Županijski sud u Zagrebu ), sitting as an appellate court.", "8. On 6 April 2005 the applicant started to serve her sentence.", "9. On 21 October 2005 the applicant lodged an application for a retrial, claiming that she had been sentenced twice for the same offence. On 15 February 2006 the Zagreb Municipal Court granted the application. On 12 April 2006 the Zagreb Municipal Court acquitted the applicant on the charge of fraud in respect of which she had already been convicted by the Požega Municipal Court and upheld her other convictions of 22 November 2001 the court sentenced her to three years'imprisonment and confiscated HRK 166,782 from her on account of her criminal activity.", "2. The applicant's health condition", "10. The medical documentation submitted by the applicant shows that since 1996 she has been suffering from chronic hepatitis (Hepatitis C) with a very high level of viremia (presence of viruses in the blood). She has unsuccessfully undergone interferon treatment. Due to the effects of that disease her liver is damaged and her general health condition is very bad. People with hepatitis C usually suffer from constant exhaustion; pain in the abdomen, joints and muscles; general sickness and weakness; and often depression. A low - fat diet is required in order to reduce liver damage. The disease is potentially fatal. On an unspecified date the applicant also contracted hepatitis A. In addition to that, she suffers from endometriosis.", "3. The applicant's first stay in Požega Penitentiary and the prison hospital", "11. During her first stay in Požega Penitentiary, from 10 January to 29 August 2003, the applicant was put on a low-calorie diet as a punishment for her attempts to complain about the conditions in the prison. She was first given the job of handling dissolvent without any protection and later made to work full time on shovelling pebbles. As a consequence, she collapsed and was transferred to the prison hospital ( Bolnica za osobe lišene slobode, hereafter “the hospital”) where she spent about two and half months. She was transferred in a van, accompanied by a driver, a nurse and a policewoman. The transfer took several hours and they had several coffee breaks and a lunch break, during which they left the applicant in a closed van, without food or water and with the windows shut.", "12. In the hospital the applicant shared a hospital room with five other inmates, most of whom were suffering from various mental disorders or epilepsy. The room had no sanitary facilities. The common sanitary facilities were shared by male and female inmates of the same floor. There were six female and fifteen male inmates on the applicant's floor. Access to toilets was allowed only in the company of a prison warden. The prison wardens were all male. Requests to be accompanied to the toilet were often ignored for prolonged periods of time. There was no access to the toilet during the night and the inmates had to use a common chamber pot (one for six inmates). The rooms were unlocked for an hour per day when the inmates were allowed to go out into the corridor, take a shower or wash their clothes. If an inmate urinated or threw up in the room, it had to be cleaned by the other inmates.", "13. After her return to Požega Penitentiary, the applicant was again given the job of handling dissolvent, without any protection. After she had collapsed again, she was assigned another job.", "14. The applicant was discharged on 29 August 2003. Her conditional release expired on 10 September 2003.", "4. The applicant's second stay in prison", "15. Following a fresh criminal conviction, on 6 April 2005 the applicant was taken by police to Remetinec Centre for Psychosocial Diagnostics ( Centar za psihosocijalnu dijagnostku Remetinec ), a detention centre in Zagreb, where she stayed for two weeks.", "a. The applicant's submissions", "16. According to the applicant, she had not been allowed to write to the Court. The prison authorities had repeatedly questioned her as to what she had written to the Court about her previous stay in Požega Penitentiary and the hospital. After she had refused to reply she had been transferred to Požega Penitentiary and placed in the high-security unit where she had been ever since.", "17. Požega Penitentiary consisted of four buildings that were old and in a bad state of repair. The walls were damp, windows broken and the heating facilities old and insufficient. As a result, it was often very cold in the cells and in the other prison areas. On rainy days the water leaked through the roof into the bedrooms. The sewage and water installations often broke down and when this happened the inmates were deprived of running water for days.", "18. Požega Penitentiary was divided into three sections: an open section with the lowest security regime, a semi-open section with a medium security regime and a closed section with the highest security regime. The applicant had been assigned to the latter one. She had been put in a cell measuring twelve square metres with five other inmates. The beds were old and partly broken, and the mattresses were torn and soiled. There were approximately two toilets on average for thirty inmates. The inmates were not allowed to use the toilets at night. The applicant had been put in the same cell as an inmate who took heavy sedatives and therefore soiled her bed almost every night, which created an unbearable smell in the cell. The penitentiary lacked sufficient sanitary facilities, so inmates were occasionally sent to take showers in the basement. The showers there were mouldy and there were often mice, cockroaches, rats and cats running around. The inmates were not allowed to wash their civilian clothes in the penitentiary laundry room but had to wash them by hand and dry them in a very small room, which created an unbearable smell.", "19. Before every meal the inmates were lined up in the courtyard where, regardless of the weather conditions and often for a prolonged period of time, they waited to be allowed access to the canteen. The applicant found it increasingly difficult to bear such line-ups on account of her illness.", "20. Inmates were made to work about fifteen hours per day. From 12 May to 25 November 2005 the applicant had not worked because of her health condition, but later on she had volunteered to work in order to earn at least some money to buy vitamins and some food. The applicant earned between HRK 300 and 400 per month, HRK 100 of which she was obliged to save. She worked as a seamstress. She was allowed one hour's rest in her bed per day. The bedrooms were locked for the rest of the day. If she needed more rest she had to seek the doctor's permission each time. The applicant found it almost unbearable not to be able to stay in her bed for longer periods during the day since she suffered from tiredness associated with hepatitis C.", "21. Although a low-fat diet for her liver disease had been prescribed, the applicant was served food cooked in pig fat. In general the food served to the inmates was insufficient and of poor quality. The bread was often stale and the food had often gone off. Breakfast often consisted of a spoon of bare pig fat.", "22. She had seen a doctor once, on 21 February 2006. The medical documentation stated only that the test for hepatitis C was positive and that her viremia was 2. 556. 220 units /ml of serum. Apart from that, the applicant had not been sent for any other medical check-ups despite having a serious disease which required regular tests and check-ups. Since her arrival at Požega Penitentiary the applicant had not been seen by a hepatologist. She stated that she had not asked to be sent to the prison hospital because the conditions there were even worse than in Požega Penitentiary.", "23. All letters sent and received by the inmates were subject to censorship. On several occasions the applicant was told to shorten her letters addressed to her family and not to write about the conditions in the prison. Mail was received with up to twenty days'delay. Mail sent without a request for acknowledgment of receipt often did not reach its destination at all. The inmates had to bear all the postage costs. All telephone calls were screened. The inmates apparently had to bear the costs of the telephone calls they made. The applicant stated that she had not been informed that she was entitled to any visits.", "b. The Government's submissions", "24. According to the Government, the penitentiary had been built in 1915 and had been adapted to the life and accommodation of inmates so as to comply with the conditions set out in the relevant legislation. It was able to accommodate 157 inmates, yet on 5 October 2006 there had been 72 inmates. Each section comprised bedrooms, sanitary premises, a living room, a tea-kitchen, a smoking area, an area for leisure activities, a library with computer equipment and premises for religious worship. The inmates were allowed to use the toilet and other sanitary facilities at any time and for an unlimited period. Each living room was equipped with a television set and a DVD or video recorder. Inmates were allowed to watch television until 11 p.m. on working days and until midnight on Saturdays and Sundays.", "25. As to the applicant's personal circumstances, the Government submitted that after her initial one - week stay at the Reception Unit, she had been placed in the high-security unit and assigned to a non-working group on account of her health condition. The applicant had been qualified as having minor adaptability problems as most of the time she had been without any obvious occupation, just listening to music. Occasionally she had got into arguments with other inmates. She had lacked the motivation for more active participation in her individual programme, remaining passive and inert, with no insight into her own behaviour and uncritical in respect of her criminal conviction. However, with time the applicant's attitude had altered for the better. She had expressed a higher level of motivation for completing her daily duties and had satisfactorily participated in her counselling sessions, distancing herself from negative events in the section, and concentrating on herself. She had also expressed a wish to work and, as of 23 November 2005, had been working in the laundry service where she had been given less demanding tasks.", "26. As of 1 June 2006 the applicant had been labelled “successful”, which had resulted in her removal to a semi-open section from 2 August 2006. Ever since then she had benefited from the following privileges: unsupervised use of telephone in her free time; unlimited correspondence at her own expense; the right to receive a package once a month and during public holidays; an additional package once every two months; the right to supervised one-hour visits twice a month and during public holidays; and an unsupervised three-hour monthly visit.", "27. As to the medical care provided to the applicant, they submitted that one doctor and three nurses were employed in the penitentiary. During her second stay in the penitentiary the applicant had been allowed to stop work until she herself had asked to work again. She was also prescribed a liver and vitamin diet and offered fresh cheese and dairy products. On 4 January 2006 she underwent a qualitative and quantitative test for chronic hepatitis virus and was informed of the results. Since 5 May 2005 she had seen the prison doctor on 43 occasions.", "28. As to the applicant's right to respect for her correspondence, they submitted that she had been able to send and receive letters at her own expense without any limitation. During her stay in the high-security section she had had to hand over her letters – opened – while the letters addressed to a legal representative, State authorities and international organisations for the protection of human rights had to be handed over sealed. Packages could be sent any day.", "5. Remedies used by the applicant", "29. It appears that the applicant complained to the prison authorities, the Ministry of Justice and the President of Croatia. She did not submit copies of the letters she had sent to these authorities, stating that she had not made any. However, she submitted a letter of 5 September 2005 sent to her by the Ministry of Justice, Central Prison Administration, the relevant part of which read as follows:", "“The Ministry of Justice, Central Prison Administration, has received your complaint of 17 August 2005 in which you expressed your dissatisfaction with the accommodation arrangements with other inmates, the approach of the prison officials, the health care and the manner of using your free time.”", "The applicant's complaints were declared unfounded.", "30. Furthermore, the Government submitted a complaint lodged by the applicant in a letter of 28 September 2005, lodged with the Požega County Court judge responsible for the execution of sentences ( Županijski sud u Požegi ), alleging, inter alia, that she suffered from chronic hepatitis and that, on account of her illness, she was not able to comply with the prison regime. Although the judge held an interview with the applicant on 19 October 2005, he did not adopt a formal decision on her complaints. The interview and subsequent action had concentrated solely on giving advice to the applicant about applying for a retrial (see paragraph 9 above)." ]

[ "II. RELEVANT NON-CONVENTION MATERIAL", "1. Relevant domestic law", "31. Article 23 of the Croatian Constitution ( Ustav Republike Hrvatske ) provides:", "“No one shall be subjected to any form of ill-treatment...”", "The Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) - “the Act”) came into force on 1 July 2001, and the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows:", "COMPLAINTS", "Section 15", "“(1) Inmates shall have the right to complain about an act or decision of a prison employee.", "(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open ... ”", "JUDICIAL PROTECTION AGAINST ACTS AND DECISIONS OF THE PRISON ADMINISTRATION", "Section 17", "“(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.", "(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”", "ACCOMODATION, FURNISHINGS AND NUTRITION", "Section 74", "“(1) The accommodation of inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions.", "(2) Inmates shall as a general rule be accommodated in separate rooms...", "(3) Inmates'rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 square metres and 10 cubic metres of space in the room.", "(4) Every room ... must have daylight and artificial light...", "(5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so.", "(6) Inmates shall have drinking water at their disposal at all times.”", "Section 77", "“1. The penitentiary or prison shall supply the inmates with underwear, clothes and bed linen appropriate to the climatic conditions.”", "Section 78", "“3. Inmates shall be served at least three meals daily with a caloric value of at least 3,000 kcal per day. The content and the nutritional value of the food shall be supervised by a doctor or other medically qualified person.”", "HEALTH PROTECTION", "Section 103", "“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... ”", "CORRESPONDENCE", "Section 124", "“(1) Inmates shall have the right to unlimited correspondence at their own expense.", "...", "(4) Inmates shall have the right to correspond with their lawyer, the State authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters ... ”", "2. Relevant reports", "32. The relevant part of the Report on the Minister of Justice's visit to Požega Penitentiary on 7 April 2006, published on the Ministry of Justice official internet page, reads as follows:", "“ ... Minister of Justice was informed about the situation in the Požega Penitentiary by its director Slavko Orešković .'Our needs are fairly high as the roof, outer walls and installations are in need of repair as well as the other things, for which we would need about two million kunas'said Orešković .”", "33. The relevant part of the Government's Report on the State and Operation of Prisons, Penitentiaries and Correctional Institutions in 2005 submitted to Parliament on 21 December 2006 ( Izvješće o stanju i radu kaznionica, zatvora i odgojnih zavoda za 2005. godinu, koji je predsjedniku Hrvatskoga sabora dostavila Vlada Republike Hrvatske, aktom od 21. prosinca 2006. godine ) reads as follows :", "“ ... state of repair of the buildings of the Zagreb Prison Hospital and the Požega Women's Penitentiary is highly unsatisfactory as regards the mains installations (gas, water, electricity, canalisation/sewage), construction of buildings ( unsafe static, woodwork falling apart, the state of repair of the roof) ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "34. The applicant complained about the conditions of her two separate prison terms.", "a. She complained firstly about the conditions of her stay in Požega Penitentiary and the prison hospital from 10 January to 29 August 2003.", "b. Secondly, she complained about the general conditions in Požega Penitentiary during her second stay there from May 2005 onwards. She complained, in particular, about the lack of adequate medical treatment and necessary medical check-ups for her illness ( chronic hepatitis), the lack of adequate diet in this respect, and the lack of sufficient opportunity to take necessary rest, due to which she had lost control over her health condition resulting in feelings of anxiety, hopelessness and depression. She relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "35. The Government contested the applicant's arguments.", "A. Admissibility", "1. The applicant's stay in Požega Penitentiary and the Zagreb Prison Hospital from 10 January to 29 August 2003", "36. The Court notes that the applicant was released on 29 August 2003, and that her first letter to the Court was sent on 28 April 2004.", "37. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "2. The applicant's stay in Požega Penitentiary from May 2005 onwards", "38. The Government requested the Court to declare this complaint inadmissible for failure to exhaust domestic remedies. They submitted that, under sections 15 and 17 of the Enforcement of Prison Sentences Act, the applicant could have lodged a complaint about the general conditions of her detention and the alleged lack of adequate medical treatment. However, she had not lodged such a complaint either with the prison authorities, the Central Prison Administration, or the judge responsible for the execution of sentences.", "39. The applicant submitted that she had exhausted all remedies available within the domestic legal system in respect of the alleged violations.", "40. The Court notes that the documents submitted by the parties show that the Ministry of Justice, Central Prison Administration, in its letter of 5 September 2005 to the applicant, acknowledged that the applicant had lodged a complaint whereby she expressed dissatisfaction with her accommodation and the lack of adequate health care (see paragraph 2 9 above). Furthermore, the Government submitted a copy of the applicant's complaint lodged with the Požega County Court judge responsible for the execution of sentences on 28 September 2005 whereby she expressly complained that she suffered from chronic hepatitis and that, due to her illness, she was not able to comply with the prison regime. The Court considers that these documents clearly show that the applicant used the remedies at her disposal and thus made the domestic authorities sufficiently aware of her grievances. However, her complaints remained unanswered since the judge did not adopt a formal decision on her complaints (see paragraph 30 above). In these circumstances the applicant could not make use of the possibility to appeal. Thus, the Government's objection must be rejected.", "41. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other ground. It must therefore be declared admissible.", "B. Merits", "1. General principles enshrined in the case-law", "42. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see Labita v. Italy, judgment of 6 April 2000, Reports of Judgments and Decisions 2000-IV, § 119).", "43. According to the Court's case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). Although the purpose of such treatment is a factor to be taken into account, in particular the question of whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 ( Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).", "44. The Court has consistently stressed that the suffering and humiliation involved must in any event exceed the inevitable element of suffering or humiliation connected with a legitimate deprivation of liberty. Nevertheless, in the light of Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, the person's health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI), with the provision of the requisite medical assistance and treatment (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq.). When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).", "45. In exceptional cases, where the state of a detainee's health is absolutely incompatible with the detention, Article 3 may require the release of such person under certain conditions (see Papon v. France (no. 1) (dec.), no. 64666/01, CEDH 2001-VI, and Priebke v. Italy (dec.), no. 48799/99, 5 April 2001) There are three particular elements to be considered in relation to the compatibility of the applicant's health with her stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002-IX).", "46. However, Article 3 cannot be construed as laying down a general obligation to release detainees on health grounds. It rather imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty. The Court accepts that the medical assistance available in prison hospitals may not always be at the same level as in the best medical institutions for the general public. Nevertheless, the State must ensure that the health and well-being of detainees are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła, cited above, § 94, ECHR 2000-XI; see also Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79, and Kalashnikov v. Russia, no. 47095/99, §§ 95 and 100, ECHR 2002-VI). Furthermore, if the authorities decide to place and maintain a seriously ill person in detention, they shall demonstrate special care in guaranteeing such conditions of detention that correspond to his special needs resulting from his disability ( see Farbtuhs v. Latvia, no. 4672/02, § 56, 2 December 2004 )", "2. Scope of the issues for consideration", "47. The Court notes that the applicant's complaints under Article 3 of the Convention mainly concern two issues:", "- first, whether the conditions of the applicant's detention were compatible with that provision; and", "- second, whether the applicant was provided with the necessary medical treatment and assistance.", "The Court has, however, examined these issues together.", "a. The parties'submissions", "48. The Government did not comment on all of the applicant's complaints under Article 3 of the Convention. Instead, they commented only on a few issues she raised, concentrating mainly on the applicant's attitude towards her prison sentence and the prison environment (see paragraphs 25 and 26 above). In particular they submitted that the penitentiary premises were adequately furnished, ventilated and clean; the inmates'hygienic needs were satisfactorily ensured; the time was adequately organised both for working and non-working inmates; the penitentiary had a library, a fitness hall and computer equipment; and the applicant was provided with an adequate diet and medical assistance (see paragraph 27 above).", "49. In support of their submissions the Government forwarded to the Court a number of photographs allegedly taken on the premises of Požega Penitentiary on an unspecified date. The photographs depict a courtyard and inner premises such as the sleeping areas, dining room, toilets, showers and halls.", "50. The applicant maintained her allegations. She claimed that her description of the conditions of detention was accurate (see paragraphs 17 and 18 above). She claimed that she received no adequate medical treatment for her disease and that she had been subjected to unnecessary hardships incompatible with her state of health (see paragraphs 19-22 above).", "b. The Court's assessment", "51. The Government did not appear to dispute that the applicant suffered from a very serious form of chronic hepatitis – a potentially fatal disease – and that during her second stay in Požega Penitentiary from May 2005 onwards, she had not been seen by a hepatologist, a specialist for her disease. It is further undisputed that the only medical assistance provided to the applicant in respect of her chronic hepatitis was a test done on 4 January 2006 which confirmed that she had contracted the hepatitis C virus and showed the number of viruses in her blood.", "52. The Court notes that chronic hepatitis is an illness that primarily attacks the liver and with time can lead to liver cirrhosis, liver cancer and death. In this connection the Court considers that it is essential that the applicant undergo an adequate assessment of her current health state in order to be provided with adequate treatment. Such an assessment could be obtained from a liver biopsy and relevant blood tests. However, the applicant has not been provided with appropriate diagnostic treatment and has been left without relevant information in respect of her illness, thus keeping her in dark about her health condition and depriving her of any control over it, which must have caused her perpetual anguish and fear. In this respect the Court considers irrelevant the Government's submission that the applicant had seen a prison doctor on more than fifty occasions since these visits did not provide the applicant with the medical care and assistance indispensable for her particular health condition. As a consequence of the lack of adequate medical examinations, due to which the exact effect of chronic hepatitis on the applicant's health has not been established, the applicant cannot have been provided with proper medical assistance.", "53. Furthermore, although chronic hepatitis is associated with constant exhaustion and reduced physical ability, the applicant has been obliged to line up every day in the penitentiary's courtyard, irrespective of the weather conditions. She has also been unable to rest when she has felt weak without obtaining a special permit from the prison doctor each time, which explains the large number of visits that the applicant has made to him. In the Court's view, such additional hardship placed on the applicant in her present state of health has been unnecessary and has gone beyond the inevitable element of suffering or humiliation connected with a legitimate deprivation of liberty.", "54. As to the conditions of detention, the excessive number of persons in the cell and the lack of proper hygiene, heating or appropriate clean bedding, plus the general state of repair, the Court has examined them as a whole on the basis of the applicant's submissions and the lack of relevant comments from the Government.", "55. The Court notes that the Government have sent, in support of their submissions, some photographs allegedly showing the conditions of detention in Požega Penitentiary. Since it is impossible to ascertain when and in what circumstances these images were created, the Court does not consider it possible to take them into consideration.", "56. One of the characteristics of the applicant's detention that requires examination is her allegation that the cells were overpopulated. She submitted that she had been placed in a cell measuring 12 square metres with five other inmates. The Government have submitted that the penitentiary was able to accommodate 157 inmates, whereas on 5 October there had been 72 inmates, but as they have not provided any further details of the applicant's current circumstances they have failed to refute her allegations. It follows that the applicant has been confined to a space measuring 2. 4 square metres.", "57. In this connection the Court recalls that the European Committee for the Prevention of Torture and Inhuman or Degrading treatment or punishment (CPT) has set 4 sq. m per prisoner as an appropriate, desirable guideline for a detention cell (see, for example, the CPT Report on its visit to Latvia in 2002 – CPT/ Inf (2005) 8, § 65). This approach has been confirmed by the Court's case law. The Court recalls that in the Peers case a cell of 7 sq. m for two inmates was noted as a relevant aspect in finding a violation of Article 3, albeit that in that case the space factor was coupled with an established lack of ventilation and lighting (see Peers v. Greece, no. 28524/95, §§ 70–72, ECHR 2001-III). In the Kalashnikov case the applicant had been confined to a space measuring less than 2 sq. m. In that case the Court held that such a degree of overcrowding raised in itself an issue under Article 3 of the Convention (see Kalashnikov v. Russia, no. 47095/99, §§ 96–97, ECHR 2002-VI). The Court reached a similar conclusion in the Labzov case, where the applicant was afforded less than 1 sq. m of personal space during his 35-day period of detention (see Labzov v. Russia, no. 62208/00, §§ 41-49, 16 June 2005 ), and in the Mayzit case, where the applicant was afforded less than 2 sq. m during nine months of his detention (see Mayzit v. Russia, no. 63378/00, § 40, 20 January 2005).", "58. By contrast, in some other cases no violation of Article 3 was found, as the restricted space in the sleeping facilities was compensated for by the freedom of movement enjoyed by the detainees during the day time (see Valašinas, cited above, §§ 103, 107, and Nurmagomedov v. Russia (dec.), no. 30138/02, 16 September 2004).", "59. As regards the question of how many hours per day the applicant was confined to her cell, the Court observes first that the applicant's illness requires her to take frequent rests, thus necessitating her prolonged stay in her cell. Therefore, the actual prison regime in this respect is of no relevance for the applicant's situation. The Court also takes note of the applicant's allegations, uncontested by the Government, that the beds were old and partly broken, the mattresses were torn and soiled and that another inmate in the same cell who took heavy sedatives soiled her bed almost every night, which created an unbearable smell in the cell. In these circumstances, the Court considers that the lack of space combined with these additional factors weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned conditions of detention were “degrading” from the standpoint of Article 3.", "60. As to the sanitary conditions, the Court notes that the Government did not expressly contest the applicant's allegations that there were approximately two toilets on average for thirty inmates and that she had occasionally been sent to take a shower in the basement where the showers were mouldy and mice, cockroaches, rats and cats were often running around.", "61. As to the general state of repair, the Court notes that the applicant's allegations that the buildings were old and in a very bad state of repair, including malfunctioning heating facilities and damaged roofing which resulted in the prison premises being cold and rain leaking into them, are corroborated by the Government's Report of 21 December 2006 (see paragraph 33 above).", "The Court considers that these facts demonstrate that the applicant has been detained in an unsanitary and unsafe environment.", "62. As to the Government's contentions regarding the applicant's behaviour and attitude, the Court reiterates that it does not accept the argument that the conditions of imprisonment could be determined according to whether an inmate showed a passive attitude and lacked initiative to participate in the prison activities, since all inmates should be afforded prison conditions which are in conformity with Article 3 of the Convention (see, mutatis mutandis, Cenbauer v. Croatia, no. 73786/01, § 47, ECHR 2006 - ... ).", "63. In the Court's view, the lack of requisite medical care and assistance for the applicant's chronic hepatitis coupled with the prison conditions which the applicant has so far had to endure for more than two years diminished the applicant's human dignity and aroused in her feelings of anguish and inferiority capable of humiliating and debasing her and possibly breaking her physical or moral resistance. In the light of the above, the Court considers that the nature, duration and severity of the ill-treatment to which the applicant was subjected and the cumulative negative effects on her health can qualify the treatment to which she was subjected as inhuman and degrading (see Egmez v. Cyprus, no. 30873/96, § 77, ECHR 2000-XII; Labzov v. Russia, cited above, § 45; Mayzit v. Russia, cited above, § 42; and Koval v. Ukraine, no. 65550/01, § 82, 19 October 2006).", "64. There has accordingly been a violation of Article 3 of the Convention in the circumstances of the present case.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "65. The applicant further complained about the opening of all her correspondence by the prison authorities and about the supervision of all her telephone calls both during her stay in the Remetinec Detention Centre and her stay in Požega Penitentiary. She relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "66. The Government contested that argument and also submitted that the applicant had not exhausted domestic remedies because she had not addressed this complaint to the domestic authorities such as the Požega Prison administration or the judge responsible for the execution of sentences.", "67. The applicant made no comments on the Government's observations on this point.", "68. The Court notes that the applicant did not address a complaint concerning the opening of her correspondence and screening of her telephone conversations to any domestic authority, although under section 15(2) of the Enforcement of Prison Sentences Act she could have lodged such a complaint with either a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration.", "69. It follows that in respect of this complaint the applicant has not exhausted domestic remedies and that therefore this complaint must be rejected in accordance with Article 3 5 §§ 1 and 4 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "70. The applicant also complained under Article 4 of Protocol No. 7 that she had been convicted twice for the same offence. Lastly, she invoked Articles 5, 6 and 7 of the Convention, Article 1 of Protocol No. 4 and Article 2 of Protocol No. 7 without further substantiation.", "71. In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "72. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "73. The applicant claimed 110,000 euros (EUR) in respect of non- pecuniary damage.", "74. The Government made no comments in this respect.", "75. The Court notes that it has found that the applicant's rights guaranteed by Article 3 of the Convention have been violated. In particular, it has found that while serving her prison term the applicant has not received adequate medical treatment and has been held in unsanitary and unsafe conditions. That fact has indisputably caused her severe physical and mental suffering over a long period of time ( more than two years ). Consequently, ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1 5 ,000 ( fifteen thousand euros) under this head, plus any tax that may be chargeable.", "B. Costs and expenses", "76. The applicant, who was granted legal aid, also asked the Court to award her the expenses of representation in the proceedings before it in an amount determined in accordance with the Court's case-law.", "77. The Government made no comments in this respect.", "78. According to the Court's case-law, an applicant is entitled to reimbursement of her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3, 200 in respect of the Convention proceedings in addition to the amount already granted for legal aid plus any tax that may be chargeable on that amount.", "C. Default interest", "79. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1948 in the Lerik Region, Azerbaijan, and currently lives in The Hague, the Netherlands.", "A. Arrest, conviction and commutation of the sentence", "7. Until 1988 the applicant was the deputy director of a transport warehouse in the city of Lenkoran, Azerbaijan. In 1988 he joined a political party and began his political career. When the Armenian-Azerbaijani conflict in Nagorno-Karabakh broke out, he joined the national army and became one of its commanders. In the summer of 1993, at the time of the outbreak of a civil and political confrontation in the country, he returned from Nagorno ‑ Karabakh to his native Lenkoran.", "8. In June 1993 the applicant put forward a proposal for an autonomous political formation in the south of Azerbaijan which would, in addition to Lenkoran itself, incorporate several adjacent regions. The central authorities considered this idea unacceptable. On 7 August 1993 the applicant, together with his supporters, proclaimed the creation of the so-called “ Talysh-Mugan Autonomous Republic ” (“ Talış-Muğan Muxtar Respublikası ” ) within the Republic of Azerbaijan. The applicant was elected its “President”. At the same time, he attempted to take charge of the military units located in Lenkoran, as well as to depose and arrest some regional public officials appointed by the central authorities. Following this, certain public disorder evolved, during which several people were killed.", "9. At the end of 1993, the applicant was arrested and detained in the detention centre of the Ministry of National Security. The investigation against him led to accusations of, inter alia, high treason and use of armed forces against the constitutional institutions of the State.", "10. In September 1994 the applicant, along with three other detainees, absconded from the detention centre. The applicant went into hiding until August 1995 when he was finally caught and arrested for the second time.", "11. According to the applicant, at all times while in pre-trial detention, he was subjected to various forms of ill- treatment. He was not allowed to see a doctor. Under the threat of his wife's arrest and criminal prosecution, he was compelled to give self-incriminating testimony. His close friends and relatives, including his wife and son, were also subjected to persecution and physical ill-treatment by the authorities. Fearing further persecution, his wife and son left the country and sought asylum in the Netherlands.", "12. The applicant's criminal case was examined by the Military Chamber of the Supreme Court ( Ali Məhkəmənin Hərbi Kollegiyası ) sitting in first instance. He was tried together with six other accused persons. On 12 February 1996 the applicant was convicted of high treason ( twelve years'imprisonment with confiscation of property), misappropriation of official power ( two years'imprisonment), illegal deprivation of liberty ( three years'imprisonment), unauthorised possession of weapons ( five years'imprisonment), absconding from custody ( two years'imprisonment), and creation of illegal armed units (death penalty with confiscation of property). By way of a merger of sentences, the applicant was sentenced to death and confiscation of property. Being a decision of the highest tribunal, this judgment was final and was not subject to appeal at the material time.", "13. Following the conviction, in June 1996 the applicant was transferred to the 5 th Corpus of Bayil Prison designated for convicts sentenced to death. Despite the existence of the death penalty as a form of punishment under the criminal law applicable at that time, the Azerbaijani authorities had pursued a de facto policy of moratorium on the execution of the death penalty since June 1993 until the abolition of the death penalty in 1998.", "14. On 10 February 1998 Parliament adopted the Law on Amendments to the Criminal Code, Code of Criminal Procedure and Correctional-Labour Code of the Republic of Azerbaijan in Connection with the Abolition of the Death Penalty in the Republic of Azerbaijan, which amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. The penalties of all the convicts sentenced to death, including the applicant, were to be automatically commuted to life imprisonment.", "15. Despite this new penalty, the applicant was kept in the 5 th Corpus of Bayil Prison (the former “death row”) up to January 2001. According to the applicant, the conditions of imprisonment in the Bayil Prison were harsh and inhuman, and beatings frequently occurred. He suffered from various serious diseases and could not get necessary and adequate medical treatment (see section C. below ). In January 2001 he was transferred to the Gobustan High Security Prison ( Qobustan Qapalı Həbsxanası; hereinafter “ Gobustan Prison”) for prisoners serving life sentences.", "B. Re-examination of the criminal case by the appellate and cassation courts", "16. In 2000 a new Code of Criminal Procedure (hereinafter “ CCrP ”) and new Criminal Code of the Republic of Azerbaijan were adopted. Before the new CCrP's entry into force on 1 September 2000, on 14 July 2000 Parliament passed a transitional law allowing the lodging of an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules.", "17. Shortly after this, at the time of Azerbaijan's admission to the Council of Europe, the applicant was recognised as a “political prisoner” by independent experts of the Secretary General (in the experts'relevant reports the applicant's name was spelled as “ Alikram Gumbatov ”, possibly following the Russian transliteration of his name). Azerbaijan has made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts.", "18. Following the reform of the domestic criminal and criminal procedure law in 2000 and in the light of Azerbaijan's undertaking before the Council of Europe to review the cases of “political prisoners”, on 20 December 2001 the Prosecutor General filed an appellate protest ( apellyasiya protesti ) with the Court of Appeal, requesting the court to allow the re-examination of the applicant's case. On 24 January 2002 the Court of Appeal upheld this request and allowed an appeal to be lodged against the Supreme Court's judgment of 12 February 1996.", "19. On 29 January 2002 the applicant lodged his appellate complaint with the Court of Appeal. He asked the court to initiate a new investigation into the case, to hold a public hearing in an ordinary courtroom with the participation of media representatives and officials of foreign organisations, to obtain the attendance and examination of certain witnesses, and to evaluate the political events in the Lenkoran region in 1993. On 23 April 2002 the Court of Appeal decided to grant the applicant's requests for a new investigation and a public hearing, but dismissed the remaining requests.", "20. The hearings on the merits were to be held at the detention centre of the Ministry of Justice. However, on 13 May 2002 the Court of Appeal changed the location of the hearings to Gobustan Prison since, as explained by the court, repair works were being carried out in the Ministry's detention centre. The applicant protested against this decision by refusing to attend any court hearings held in Gobustan Prison. On 14 May 2002 the Court of Appeal ordered his compulsory attendance.", "21. The Court of Appeal's hearings on the merits took place in Gobustan Prison, which was equipped with a courtroom with a separate deliberation room, the total surface area of which was 150 square metres. According to the Government, this courtroom contained about 50 seats for observers.", "22. The parties were in disagreement about the actual distance between Gobustan Prison and Baku (45 kilometres according to the Government and 75 kilometres according to the applicant). No regular public transportation from Baku to the prison was available. Because of the prison's strict access regime, persons wishing to attend the hearings as observers had to ask the presiding judge for permission to attend the hearing. The presiding judge, in turn, applied to the prison authorities with a request to grant such persons access to the prison. Observers who were granted access to the hearings were subject to a body search before entering the prison's courtroom.", "23. The Court of Appeal held more than twenty hearings and examined testimonies from more than 60 witnesses, of which the statements of six persons, given during the first-instance trial, were read out during the hearings.", "24. In the course of the appellate proceedings, the applicant submitted a number of petitions in which he, inter alia, challenged the impartiality of the court, requested that the court permit audio and video recording of the hearings, that the hearings be held in public and away from the high security prison, and that testimonies of additional witnesses and other additional evidence be admitted. The majority of these petitions were rejected by the Court of Appeal.", "25. On 10 July 2003 the Court of Appeal delivered its final judgment concerning the applicant's criminal case. The Court of Appeal revoked the previous judgment of 12 February 1996 in its part concerning the confiscation of the applicant's property. The Court of Appeal, however, upheld the applicant's conviction and sentenced him to life imprisonment, pursuant to the criminal law applicable at the time the crimes were committed, but subject to the amendments introduced by the Law of 10 February 1998.", "26. The applicant lodged an appeal in cassation with the Supreme Court. In his appeal, he complained, inter alia, that the Court of Appeal had breached material and procedural rules of domestic law, that the trial held in Gobustan Prison had not been public and fair, and that the life ‑ imprisonment sentence had been unlawful.", "27. By a decision of 5 February 2004, the Supreme Court rejected the applicant's cassation appeal. The court retained the penalty of life imprisonment, but partly modified the Court of Appeal's judgment by re ‑ qualifying the underlying offence under Article 279. 3 of the new Criminal Code of 2000, instead of applying the old Criminal Code of 1960 as amended by the Law of 10 February 1998. As to the applicant's complaint concerning the alleged lack of publicity of the appellate proceedings, the Supreme Court found that this complaint was unsubstantiated, as all necessary measures had been taken to ensure the possibility for independent observers to attend the trial.", "C. Medical treatment during imprisonment", "1. The applicant's health record in prison", "28. The following account has been drawn up from the medical records submitted by the Government, inasmuch as the information contained therein was discernible.", "(a) Before 15 April 2002", "29. After his arrest in August 1995, the applicant was detained in the temporary detention facility of the Baku City Police Office until 7 November 1995. No medical examinations were carried out on him during this time.", "30. On 7 November 1995 he was transferred to Investigative Isolator No. 1 and detained there until 28 December 1995. On 8 November 1995 he was examined by a physician who noted that the applicant did not have tuberculosis and that no injuries could be observed on his person. The applicant also informed the physician that he had had two heart attacks in 1992.", "31. From 28 December 1995 to 3 June 1996 the applicant was held in the detention facility of the Ministry of National Security. It appears that, during this period, he requested to see a physician several times and complained about heartaches, chest pains and worsening of eyesight. However, no serious diseases were diagnosed.", "32. According to the applicant, in the Bayil Prison, where he was imprisoned from June 1996 to January 2001, he was at various periods held in one cell together with five other prisoners whose names were Ismail Bashirov (or Behbudov ), Akif Gasimov, Hafiz Hajiyev, Azad Guliyev and Surgay. These persons were already seriously ill with tuberculosis and have all died since then.", "33. Throughout 2006 the applicant complained several times of chest pains. In February-March 1997 the applicant was examined several times by a prison doctor and diagnosed with several ailments such as stenocardia, diffuse bronchitis and asthenia. He was 175 centimetres tall and weighed 55 kilograms around that time.", "34. On 22 April 1997 the prison doctors diagnosed the applicant with pulmonary tuberculosis. On 23 April 1997 he underwent an X-ray examination which confirmed the diagnosis of “focal tuberculosis of the left lungs”. He was prescribed various medicines, including streptomycin, rifampicin, haemodez, multivitamins and vitamin B. A subsequent medical examination carried out on 15 April 1998 revealed that the disease was still active. On 7 September 1998 it was observed that the disease went into remission.", "35. On 19 May 1999 the applicant was diagnosed with “tuberculosis in the remission phase” and prescribed isoniazid, rifampicin and multivitamins. On 7 September 1999 he was prescribed streptomycin and rifampicin.", "36. In February 2000 the applicant was visited by representatives of the Helsinki Citizens Assembly who expressed their concern about the applicant's state of health and requested the authorities to take necessary measures. After this, on 16 March 2000, another medical examination by the prison doctors revealed the reactivation of tuberculosis and the necessity of in-patient treatment for the applicant. On 20 March 2000, the applicant was hospitalised in the Specialised Medical Establishment No. 3 for prisoners suffering from tuberculosis, located in the Bina settlement of Baku.", "37. According to the applicant, he was ill-treated by the hospital's doctors and started receiving medical treatment only on 26 March 2000. The treatment was based on the World Health Organisation's DOTS (Directly Observed Treatment, Short-course) programme. The applicant was treated with isoniazid, ethambutol, rifampicin, streptomycin, pyrazinamide and multivitamins. On 18 May 2000 the applicant was judged to be “clinically recovered”, as the symptoms of tuberculosis were found to be mostly resolved. On 19 May 2000 the applicant was checked out of the hospital and returned to his prison cell. The actual duration of the applicant's in-patient treatment in the hospital comprised 49 days.", "38. On 27 January 2001, after his transfer to Gobustan Prison, the applicant complained to the prison doctor about breathlessness, headaches, sweating, coughing and chest pains and was prescribed certain medications such as isoniazid, rifampicin and others. On 15 June 2001 the applicant was diagnosed with “focal tuberculosis of the left lungs in the consolidation phase” and streptococcal impetigo (a skin infection) and prescribed with medication treatment for the impetigo. On 16 July 2001 new medications were prescribed and it appears that the skin infection was subsequently cured.", "39. On 11 February 2002 the applicant was diagnosed with chronic bronchopneumonia and chronic enterocolitis.", "(b) After 15 April 2002", "40. From 23 April to 3 May 2002 the applicant was on a hunger strike protesting against the alleged unfairness of the proceedings in the Court of Appeal. During this time he was visited by a doctor on a daily basis.", "41. On 5 May 2002, following his complaints about pain in his back, he was diagnosed with radiculitis and prescribed treatment with mustard plasters. On 10 May 2002 the applicant was diagnosed with “ neurocirculatory dystonia of hypertonic type” and prescribed captopril, adelphan, papaverin, dibazol and other medication.", "42. On 22 May 2002 he was examined by a phthisiatrician and complained about coughing, secretion of large amounts of phlegm, headaches, fever and general weakness. He was diagnosed with acute chronic bronchitis and prescribed kanamycin, biseptol, vitamin B and other medication.", "43. On 14 November 2002, while the appellate proceedings were underway, the applicant's lawyer wrote a letter to the President of the Court of Appeal, claiming that the applicant's health condition had deteriorated and asking that a medical examination of the applicant be arranged. On 28 November 2002 the applicant was examined by three prison doctors who noted in their report that they did not establish any deterioration in the applicant's condition.", "44. On 3 December 2002, pursuant to the same request, the applicant was examined by several prison doctors with the participation of specialists from the Medical Department of the Chief Directorate for Execution of Court Judgments (“CDECJ”), which at the material time was the subdivision of the Ministry of Justice. The applicant was diagnosed with “focal tuberculosis in the consolidation phase”, atherocardiosclerosis and internal haemorrhoids. The doctors concluded that neither out-patient nor in-patient treatment were required and advised the applicant to go on a diet and take warm sitz baths (a type of bath in which only the hips and buttocks are soaked in water), without specifying the type of diet and frequency of sitz baths. According to the applicant, prisoners had no access to hot water in their cells in Gobustan Prison and were allowed to take a hot shower once a week.", "45. On 20 December 2002 the applicant was examined by a prison doctor who deemed his condition satisfactory and considered that there was no necessity for in-patient treatment.", "46. On 4 January 2003 the applicant was medically examined following his complaints about general weakness, chest pain and headaches. He was diagnosed with ischemia, atherocardiosclerosis and stenocardia and prescribed several types of medication, including corvalol and aspirin.", "47. On 9 February 2003 the applicant complained about pain in the anal area and was diagnosed with haemorrhoids.", "48. On 18 February 2003 the applicant's lawyer made another request for a medical examination. This request was repeated on 27 February 2003. By a letter of 6 March 2003, the Head of the Medical Department of CDECJ, Mr K. Dadashov, responded that the applicant had been examined on 5 March 2003, that his condition was satisfactory, that in-patient treatment was not required and that he was receiving adequate symptomatic out ‑ patient treatment.", "49. On 3 April 2003 the applicant was diagnosed with hypertension and bronchopneumonia, and prescribed a number of medications.", "50. On 11 June 2003 the applicant was examined by an independent physician of the Azerbaijani Cardiology Centre who diagnosed him with hypertension, chronic bronchitis and osteochondrosis and prescribed several types of medication.", "51. On 25 December 2003, having examined the applicant's medical records, the Head of the Medical Department of CDECJ, issued a medical report (the “CDECJ Report”), in which he expressed his medical opinion on the applicant's state of health.", "52. Most of the CDECJ Report consisted of a detailed summary of the applicant's medical record in prison during the period from April 1997 to December 2003. The report mentioned the medical examinations carried out and the treatment prescribed on each occasion. The CDECJ Report stated that each disease had been treated with due care and, when necessary, the applicant had been provided with proper medication and other appropriate treatment, including the in-patient treatment for tuberculosis. The report suggested that, as a result of such treatment, the applicant's state of health had improved. In conclusion, it was stated that, by the time of issuance of the report, the applicant's state of health was satisfactory and that he needed neither out-patient nor in-patient treatment.", "53. Pursuant to another request of the applicant's lawyer to provide urgent medical attention to the applicant, the applicant was examined by the doctors of CDECJ and the Ministry of Health on 10 June 2004. It was observed that he had atherocardiosclerosis, moderate changes in the myocardium, focal tuberculosis in the hardening phase, and residual signs of a craniocerebral trauma. The doctors decided that the applicant's condition was satisfactory and he needed neither in-patient nor out-patient treatment.", "2. Independent medical opinion", "54. Upon the applicant's request, on 5 March 2004 the Chairman of the Medical Commission of the Azerbaijani National Committee of the Helsinki Citizens'Assembly issued an independent medical expert opinion (the “HCA Opinion”) based on the applicant's medical records. The expert noted that, in general, as a result of irregular and inappropriate medical examinations, the applicant had been given chaotic and insufficiently substantiated diagnoses and that the prescribed out-patient and in-patient medical treatment had been totally ineffective.", "55. Specifically, the expert held that the belated initial detection of tuberculosis and imprecise diagnosis had led to the aggravation of the disease. Instead of the necessary etiopathogenetic therapy, the applicant had been given inadequate symptomatic treatment during a period of three to four months before he was finally diagnosed with tuberculosis, resulting in the progressive character of the disease.", "56. The treatment given during the period from 1997 to 2000 did not correspond to any standards of active tuberculosis treatment, including the standards for the DOTS programme. As a result, until April 1998, the disease actually progressed and affected larger areas of the applicant's lungs. Although in September 1998 it was noted in the medical records that the disease went into remission, this fact was not clinically confirmed. As a result of such inappropriate treatment, in March 2000 the applicant's condition deteriorated and required hospitalisation. The in-patient treatment did not correspond to the standards of the DOTS programme, as it was shorter than required and the medicines were under-dosed. The necessary continuation phase of the DOTS treatment was not carried out after the applicant was checked out of the hospital.", "57. The expert further noted that the treatment subsequent to the applicant's hospitalisation was also inadequate. In particular, after the medical examination of 27 January 2001, he was prescribed certain medicines based solely on his complaints and without a diagnosis. The dosage of medicines and term of treatment were arbitrary. Moreover, it was not realistically possible to follow certain types of prescribed treatment, such as a diet and sitz baths, in the prison conditions.", "58. The expert also noted that, because of the applicant's strict imprisonment conditions, he was deprived of the opportunity to receive urgent medical aid during the daily closure of his wing of the Gobustan Prison from 7 :00 p.m. to 11:00 a.m. of the next day.", "59. Finally, the expert concluded that, as of the time of issuance of the HCA Opinion on 5 March 2004, due to intermittent arbitrary anti ‑ bacteriological treatment, the tuberculosis was not cured and appeared to acquire a chronic character with interchanging periods of remission and re-activation. The applicant had not received a precise and clinically confirmed diagnosis as well as any necessary and appropriate medical treatment corresponding to such diagnosis.", "D. Attempts to obtain redress for the alleged lack of adequate medical treatment", "60. According to the applicant, as the authorities in Bayil Prison did not allow him to possess any writing material, he was unable to file any written complaints concerning the lack of appropriate medical treatment until he was transferred to Gobustan Prison on 5 January 2001.", "61. On an unspecified date in 2001, the applicant made an attempt to file, through a lawyer, a complaint with a first instance court, claiming compensation from the authorities for the damage caused to his health by the allegedly harsh prison conditions and lack of necessary medical treatment. However, according to the applicant, the court refused to accept the complaint without specifying any reason.", "62. In February 2004 the applicant filed, with the Sabail District Court, a lawsuit against the Ministry of Internal Affairs, demanding monetary compensation for deterioration of his health in the prison. On 3 March 2004 the Sabail District Court refused to admit the lawsuit, because the applicant failed to designate the Ministry of Finance as a co-defendant. The court noted that, under domestic law, any claim for monetary compensation from the State must be directed against the Ministry of Finance.", "63. In March 2004 the applicant filed the lawsuit again, specifically noting the Ministry of Finance as a co-defendant. On 29 March 2004 the Sabail District Court refused to admit the lawsuit for lack of territorial jurisdiction. According to the court, lawsuits against the Ministry of Finance were subject to the territorial jurisdiction of the Nasimi District Court. The applicant challenged this decision in the Court of Appeal.", "64. At the same time, he filed a similar lawsuit with the Nasimi District Court. On 13 April 2004 the Nasimi District Court refused to admit the lawsuit on the ground that the applicant had failed to properly formulate and legally substantiate his claim.", "65. On 7 May 2004 the Court of Appeal examined the applicant's appeal from the Sabail District Court's decision of 29 March 2004. The Court of Appeal quashed this decision, holding that the Sabail District Court had territorial jurisdiction to examine the case, because one of the co ‑ defendants, the Ministry of Internal Affairs, was located within that court's jurisdiction. Accordingly, the case was remitted to the Sabail District Court for examination on the merits.", "66. 20 October 2004, after the applicant's release and emigration (see section E. below), the Sabail District Court fixed the date of examination of the case as 10 November 2004.", "67. According to a copy of the Sabail District Court's decision of 10 November 2004 submitted by the Government, the court decided, in accordance with Articles 259.0.7, 263 and 264 of the Code of Criminal Procedure, to “leave without examination” the claim against the Ministries of Finance and Internal Affairs due to failure of both the claimant and the defendants to attend the hearing. The claimant's name was specified as “ Huseynov Alakram Alakbar oglu ”. It appears that the applicant became aware of the existence of this decision for the first time after the Government submitted its copy to the Court.", "E. Release and emigration", "68. On 3 September 2004 the President issued a pardon decree releasing the applicant, among 244 other convicted persons, from serving the remainder of his prison sentence. On the same day, the President issued an instructive order granting the applicant's request to terminate his Azerbaijani citizenship.", "69. According to the applicant, he made this “request to terminate his Azerbaijani citizenship” under pressure by the authorities in exchange for his pardon and subsequent release. On 3 September 2004 he wrote a letter to the President in which he withdrew his earlier “requests” of such nature which he claimed to have made under pressure.", "70. The applicant was released from the prison only on 5 September 2004. He was immediately taken to the airport, where he boarded a flight to the Netherlands.", "71. On 9 September 2004 the applicant applied for a residence permit in the Netherlands and was granted such permit on 20 September 2004.", "72. The applicant sought medical treatment in the Netherlands. According to the records submitted, during medical examinations in 2004 and 2005, he complained of pains in the chest, shortness of breath, coughing, headaches, dizziness and concentration disturbances. It appears that, as of June 2006, the applicant still continued to be tested for tuberculosis." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Constitution", "73. Article 46 (III) of the Constitution of the Republic of Azerbaijan provides as follows:", "“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”", "B. Law of 14 July 2000 on the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan", "74. Article 7 of the law provides as follows :", "“Judgments and other final decisions delivered by first-instance courts under the [old] Code of Criminal Procedure ... before the entry into force of this [new] Code, may be reconsidered by an appellate court or the Supreme Court of the Republic of Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of the [new] Code of Criminal Procedure.”", "C. Code of Criminal Procedure of the Republic of Azerbaijan of 1 September 2000", "75. According to Article 27, criminal proceedings in all courts shall be open to the general public, except where it is necessary to protect state, professional or commercial secrets, as well as personal or family secrets of individuals. Article 392.1.6 provides that, during a preliminary hearing, the appellate court decides whether the merits of the appellate complaint will be examined in a public or closed hearing. The Code specifies a number of situations where the public can be excluded from the hearing, such as in cases involving evidence disclosing personal or family secrets (Article 199.4), or a state secret (Article 200.4), or a professional or commercial secret (Article 201.6).", "III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS", "A. Concerning the healthcare situation in Azerbaijani prisons", "76. The following are the extracts from the Standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT ) ( CPT/ Inf /E (2002) 1 - Rev. 200 6, pp. 30 ‑ 31), in the part concerning healthcare services in prisons:", "“ 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime. ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay. ...", "35. A prison's health care service should at least be able to provide regular out ‑ patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ...", "As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.", "Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. ...", "38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.", "There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.) .”", "77. The CPT report on the 2002 visit to Azerbaijan provides as follows :", "“119. ... the brief visit to the Specialised medical establishment No. 3 for prisoners suffering from tuberculosis was of a targeted nature, and focused on the ward for prisoners with multi-resistant tuberculosis. Set up in 1998, the establishment receives for treatment both remand and sentenced prisoners diagnosed to be BK-positive. The treatment continues up to 9 months along the lines of the WHO-recommended DOTS strategy, in close co-operation with the ICRC. ... At the time of the visit, the establishment had a capacity of 850 places distributed into six wards; two new wards – one for women, with 14 places, and another for men, with 88 places - had been inaugurated days before the delegation's visit. The delegation observed that the new wards were of a very high standard.", "120. Prisoners with multi-resistant tuberculosis were accommodated in Ward 5, which was holding 145 inmates at the time of the visit, for an official capacity of 200. Some of them had been there since 1998. The delegation was informed that upon the expiry of their sentences, multi-resistant prisoners would be referred to specialised establishments under the Ministry of Health. ... Conditions in the ward were satisfactory: the dormitories were spacious, clean, well-lit and ventilated. ...", "121. At the outset of the visit, the ward's head doctor informed the delegation that multi-resistant patients received only symptomatic treatment (e.g. vitamins). The DOTS+ treatment had not yet been introduced, although the Ministry of Justice, in co ‑ operation with the ICRC, was apparently working on this issue. However, it subsequently emerged that some 30 to 40% of the prisoners in the ward were receiving tuberculostatic medicines utilised in case of multi-resistance, which were being provided by their families. At the same time, the rest of the prisoners – who had lost contact with their families or had no financial resources – did indeed receive only symptomatic medication. Such an inequitable situation has the potential of inciting conflicts between inmates. Further, in the absence of a psychologist employed at the establishment, prisoners could not benefit from the psychological support necessary in their situation.”", "78. The following are the extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 1997, pp. 27 and 41 :", "“Treatment regimens [for new cases] have an initial (intensive) phase lasting 2 months and a continuation phase usually lasting 4-6 months. During the initial phase, consisting usually of 4 drugs, there is rapid killing of tubercle bacilli. Infectious patients become non-infectious within about 2 weeks. Symptoms improve. The vast majority of patients with sputum smear-positive TB become smear-negative within 2 months. In the continuation phase fewer drugs are necessary but for a longer time. The sterilizing effect of the drugs eliminates remaining bacilli and prevents subsequent relapse. ...", "Directly observed treatment is one element of the DOTS strategy, i.e. the WHO recommended policy package for TB control. Direct observation of treatment means that a supervisor watches the patient swallowing the tablets. This ensures that a TB patient takes the right drugs, in the right doses, at the right intervals.”", "79. The relevant extracts from Azerbaijan Health Sector Review Note, World Bank, Volume II: Background Papers (Report No. 31468-AZ, June 30, 2005) provide :", "“Communicable diseases, particularly TB, continue to be a health threat in the country. While non-communicable diseases, accidents, injuries and poisonings represent most of the disease burden in Azerbaijan, communicable diseases – which were decreasing in the late 1980s – re-emerged in the mid-1990s, including tuberculosis (TB), sexually transmitted illnesses ( STIs ), malaria, diphtheria and new diseases such as HIV/AIDS. This trend is consistent with experience of [other former Soviet Union ] countries since 1990. According to official statistics, deaths from infectious diseases in 2002 accounted for 3 percent of total deaths, with men three times more affected than women.", "... official statistics indicate that there has been a reduction in mortality due to communicable diseases since the late-1990s. The reduction has brought this type of mortality to a level slightly below that of 1990, but still 2.5 times higher than that of Western European countries. This reported reduction may be explained by the diphtheria outbreak that occurred in 1995, when deaths from infectious diseases peaked. However, when one examines major diseases such as TB, gonorrhea, syphilis and malaria, rates of infection have been steady and/or have actually increased. ...", "The incidence of TB has almost doubled since 1990 and is now six times higher than the EU-15 average. While not as high as that of Kazakhstan and the Kyrgyz Republic, the incidence of TB continues to grow in Azerbaijan ...", "For example, according to the WHO Global TB Control Report, there were an estimated 109 prevalent cases per 100,000 population in 2003, with a case fatality rate of 14 percent ... In addition, multi-drug resistant tuberculosis (MDR-TB) has been identified as a substantial problem in the prison population ... ”", "80. The following are findings contained in the pilot study of tuberculosis treatment in Azerbaijani prisons – Gaby E. Pfyffer et al., Multidrug-Resistant Tuberculosis in Prison Inmates, Azerbaijan, Emerging Infectious Diseases, Vol. 7, No. 5, September-October 2005:", "“According to the International Committee of the Red Cross (ICRC), the total number of inmates in the Azerbaijan prison system is approximately 25,000. With 4,667 TB [i.e. tuberculosis] cases per 100,000, the incidence in Azeri prisons is nearly 50 times higher than the country average, and the mortality rate may reach 24%. ...", "Except for two patients [out of 65 examined] in whom the first symptoms of TB had appeared 9 and 20 years previously, the patients had recent onset of TB disease ... Most prisoners were substantially undernourished (as indicated by low body mass indices) and in poor clinical condition, many with unilateral or bilateral pulmonary infiltrates and cavities. Most of the nonresponding patients ... had been treated inadequately before the ICRC intervention. ...", "Analyzing the TB patients in the Central Penitentiary Hospital in Baku was complicated by constraints and biases inherent in the prison environment. Clinical information on the prisoners was limited and mainly based on self-reported data. Conclusions based on analysis of 65 of the approximately 300 TB patients in that hospital are largely fragmentary and may not be truly representative. However, enrolling more patients into our pilot study was not considered, mainly because of frequent transfer of prisoners and high mortality rates. When the DOTS program was implemented by the ICRC, many of the TB patients were either untreated or had received inadequate drug regimens for years.”", "B. Concerning the applicant's criminal case", "81. Resolution 1305 (2002)1 of the Parliamentary Assembly of the Council of Europe on honouring of obligations and commitments by Azerbaijan, provides as follows :", "“ ii. The Assembly is aware that new trials of persons considered by the experts as political prisoners have started. It is concerned with reports of blatant violations of their procedural and other rights. It reiterates that these trials should respect all provisions for a fair trial as defined in the European Convention on Human Rights, including that they be accessible to journalists. It considers that these trials, which started several months ago, should not be dragged out for a long period and must be concluded rapidly .”", "82. Political prisoners in Azerbaijan, Report of the Parliamentary Assembly Committee on Legal Affairs and Human Rights, Rapporteur Mr Clerfayt, 6 June 2003, Doc. 9826, provides :", "“ 44. This concerns the cases of Iskander Gamidov (test case no 1), Alikram Gumbatov [sic] (test case no 2), and Raqim Gaziyev (test case no 3) ...", "46. In its Resolution 1272 (2002), paragraph 8, the Assembly had asked Azerbaijan “to give renewed consideration to the political expediency of releasing them”. Instead, new trials were begun of these three recognised political prisoners, following a decision to this effect by the Prosecutor General on 26 December 2001; on the day of writing this report, these trials had not been completed. They are being held in the high security prison in Gobustan.", "47. Since I was appointed as a member (Chairperson) of the Joint Working Group in charge of the implementation of Resolution 1272 (2002), I have been able to meet these three symbolic prisoners on two occasions (except for I. Gamidov ), as well as their lawyers. I already visited them when I was Rapporteur for accession between 1998 and 2000. I have been of the opinion for a long time, as is also the view of the experts, that they are undoubtedly political prisoners. ...", "49. The trial of A. Gumbatov is also proceeding chaotically. The last sitting in his trial, scheduled for 19 May 2003, has been postponed on account of the main judge's indisposition, and no new date has been announced. ...", "51. We believe that these retrials, which in reality are appeals disguised as new trials, fall short, as far as the procedure is concerned, of the expectations expressed by the Assembly in its last report on political prisoners in Azerbaijan. The judicial investigation should have been started again from the beginning, and the accusations made against the defendants should not be lifted purely and simply from the previous trials, since the former judgments are currently still in force and consequently the three prisoners do not benefit from the presumption of innocence. Moreover, since these trials are being held in prison (in Gobustan, far from Baku ), it is not easy for people to attend. Finally, in some cases, witnesses called by the defence were refused by the court. ”", "83. Report on the International Mission of Judicial Observation, issued by the International Federation of Human Rights Leagues in November 2002, provides as follows :", "“The international mission took place from 4 to 9 July 2002 in Baku. It was made up of Laurence Roques and Christine Martineau, attorneys at law with the Creteil and Paris Bars. The goal of the mission was to monitor the trial of three political prisoners, Messrs. Iskander Gamidov, Alikram Gumbatov [ sic ] and Raquim Gaziyev, who were being re-tried. ...", "The mission was able to attend only two hearings, one on July 5 for Gamidov, the other on July 8 for Gumbatov [ sic ], after asking the President of the Appeal Court for authorization. ...", "[H] earings take place in a specially equipped prison cell that includes a few benches for the audience and legal staff, but can only hold about twenty people, the others having to wait outside. The [defendant is] locked up in a cage under strict supervision. ...", "The location of the trials is very difficult to access. The Gobustan prison is two hours away from Baku, and there is no public transport to get there. Each time, the judges, lawyers, families of prisoners and audience have to travel two hours to get to the prison and use their own means of transport, which is very costly.", "Conditions of access are those of a prison. Only people who have been authorized by the President of the Appeal Court can attend hearings. Two controls are carried out before entering the courtroom. Cell phones are confiscated at the entrance, and handed back at the end of session.", "According to the Minister of Justice, [hearing is] public, since any person who wishes to attend can [do so] and even “international organisations” have been allowed in. In practice, the press and families often have to protest outside the courtroom because they are not allowed in.", "Journalists are carefully selected. During the first hearing the mission attended, journalist called out to the President to complain that colleagues, in particular journalists from television, had not been let in.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "84. The applicant complained that he had received inadequate medical treatment in prison. Article 3 of the Convention provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The Government's preliminary objection", "85. In the admissibility decision of 18 May 2006, the Court decided to join to the merits the determination of the Government's objection concerning the exhaustion of domestic remedies.", "86. The Government argued that the complaint should be rejected on the ground of non- exhaustion of domestic remedies because the applicant had failed to pursue his compensation claim before the domestic courts. On 10 November 2004 the Sabail District Court discontinued the proceedings due to the applicant's or his lawyer's failure to appear before the court without a good reason.", "87. The applicant disagreed, noting that he had repeatedly addressed his complaints concerning the lack of adequate medical treatment to various authorities, including inter alia the prison authorities, the prison's medical staff and the chairman of the Court of Appeal. All these attempts were fruitless and did not result in better medical care. As to the civil action in the domestic courts, the applicant argued that, although he had tried to make use of this avenue of redress, a post factum civil action for damages could not be considered as an effective remedy because it could not restore his health and lead to the improvement of his deteriorated health condition.", "88. The applicant submitted that, prior to 5 January 2001, he had been unable to file any judicial complaints because he had not been allowed to possess any writing material in the prison. In 2001 he finally succeeded in filing a complaint with the local court through his lawyer, but the court refused to accept it for unspecified reasons. In 2004, despite his repeated attempts to have his new civil complaint examined, the domestic courts either simply ignored his petitions and appeals, or unduly delayed their consideration, or rejected them “without giving any assessment as to the reasons invoked”. By the time the Sabail District Court issued its decision on discontinuation of the proceedings on 10 November 2004, he had already been in the Netherlands for more than two months and had no lawyer in Baku. No summons had been sent to him or his former lawyer for the hearing of 10 November 2004. Moreover, the applicant disputed the authenticity of the Sabail District Court's decision of 10 November 2004, claiming that this decision referred to someone with the last name “ Huseynov ” and not him, and that he had never been notified of this decision.", "89. Finally, the applicant noted that the Government failed to provide at least one specific example where a civil action similar to the applicant's had ever been successful. He maintained that the State authorities constantly tolerated various violations of rights of “political prisoners”, including the lack of medical treatment in prisons. Thus, in the applicant's opinion, there was an administrative practice which rendered illusory, inadequate and ineffective any remedies theoretically available to “political prisoners”.", "90. The Court reiterates that the only remedies to be exhausted are those which are effective. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one, available both in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, p. 1211, § 68 ).", "91. Furthermore, the Court emphasises that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. This rule is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed, it is essential to have regard not only to the existence of formal remedies in the legal system of the State concerned, but also to the general legal and political context in which they operate, as well as the particular circumstances of the individual case. This means, inter alia, that the Court must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust available domestic remedies (see Melnik v. Ukraine, no. 72286/01, § 67, 28 March 2006, and Ivanov v. Azerbaijan (dec.), no. 34070/03, 15 February 2007).", "92. The Court notes that it is not disputed that, on numerous occasions, the applicant complained to the prison administration, the prison doctors and other authorities about his health problems and that the authorities were aware that the applicant had contracted tuberculosis and suffered from a number of other diseases. The authorities were thereby made sufficiently aware of the applicant's situation and had an opportunity to offer redress as appropriate (compare with Melnik, cited above, § 70 ). Moreover, in so far as it can be discerned from the Government's submissions, they contended that instituting a civil action in the domestic courts was capable of providing adequate redress for the alleged violation in the present case. Although the Court has found previously that a civil action was a remedy theoretically available in Azerbaijan in respect of conditions of detention (see, for example, Mammadov (Jalaloglu) v. Azerbaijan, no. 34445/04, § § 51-52, 11 January 2007, and Kunqurova v. Azerbaijan (dec.), no. 5117/03, 3 June 2005 ), the applicant's present complaint does not concern the conditions of detention in general, but concerns specifically the lack of adequate medical treatment. However, assuming for the purposes of the present complaint that the civil action was a remedy theoretically applicable to the applicant in respect of his specific complaint, the Court considers, for the following reasons, that he should be deemed to have exhausted it in the practical circumstances of his individual case.", "93. In March 2004 the applicant filed a lawsuit seeking compensation for the inadequate medical treatment he had received in prison. This lawsuit, however, was never examined on the merits by the domestic courts. Having regard to the circumstances of the case, the Court considers that the examination of the lawsuit at the domestic level had been artificially and unnecessarily delayed. The applicant's complaint was rejected several times for various formalistic reasons and on 7 May 2004 was remitted for examination to the Sabail District Court, the same court to which the applicant had initially, and properly, submitted his complaint. Nevertheless, the merits of the complaint were again left unexamined for several months. Finally, only after the applicant had been released and had left the country, did the Sabail District Court decide on 20 October 2004 to hold a hearing on the merits on 10 November 2004.", "94. The Court observes that the applicant's situation was peculiar in that the applicant was a well-known person in Azerbaijan and his criminal case received wide media coverage within the country and was routinely mentioned in the reports of various international organisations, most prominently the Council of Europe. More specifically, he topped the Council of Europe's list of “political prisoners” and, as such, his case was on the international political agenda of the Government for several years. Therefore, the Azerbaijani authorities and courts including the judges of the Sabail District Court were, or at least should have been, very well aware of the fact that, by 10 November 2004, the applicant had already been released from the prison, that his Azerbaijani citizenship had been terminated and that he had to leave the country. Moreover, although the manner in which the applicant lost his citizenship and left the country is outside of the scope of the matters to be examined by the Court in the present case, it appears that he had no other choice but to leave the country immediately after his release and that any attempt by him to return to Azerbaijan on short notice would not be easy.", "95. Despite the above mentioned peculiarities of the applicant's situation, it appears that no measures were taken to ensure the applicant's presence and effective participation at the hearing. There is no evidence showing that he or his lawyer had been appropriately notified about the hearing in advance. The court formalistically decided to discontinue the proceedings as if it was a simple case of absence from the hearing without a good reason. It appears that, thereafter, the applicant had no information about the Sabail District Court's decision of 10 November 2004 and was therefore unable to challenge it in higher courts. Moreover, the Court observes that the decision of 10 November 200 4 referred to the claimant as “ Huseynov Alakram Alakbar oglu ”. The Government has not attempted to dispel the legitimate doubts as to the authenticity of this decision by offering any explanation or justification for this obvious discrepancy between the actual name of the applicant and the person mentioned in the decision of 10 November 2004.", "96. Having regard to the above considerations, even assuming that the civil action was theoretically effective, the Court finds that, in the practical circumstances of the present case, the applicant has done as much as could reasonably be expected of him to exhaust available domestic remedies but was not provided with a possibility to obtain effective redress from the domestic authorities.", "97. The Court therefore rejects the Government's preliminary objection.", "B. Merits", "1. The parties'submissions", "98. The Government submitted that, generally, the alleged lack of medical treatment could not be considered as amounting to torture or to inhuman or degrading treatment or punishment within the meaning of Article 3 of the Convention. Moreover, the Government argued that the applicant had been provided with all necessary medical treatment. Specifically, they noted that all of the applicant's requests for medical examination had been satisfied and that he had been regularly examined by the government doctors and provided with necessary in-patient and out-patient treatment. After the applicant's in-patient treatment in the specialised hospital for prisoners suffering from tuberculosis, his health condition stabilised and no deterioration in his state of health was observed thereafter.", "99. The Government submitted copies of the applicant's medical records while in prison to show that the applicant had been under constant medical supervision. The Government considered the above evidence sufficient to prove that the applicant had received all necessary and appropriate medical treatment.", "100. Moreover, the Government maintained that the HCA Opinion, submitted by the applicant in support of his allegations, had been prepared by a non-professional, “presented in an artificially bloated way and [was] completely ill-founded”. In the Government's view, this opinion relied on out-dated WHO standards for DOTS treatment and made wrong factual statements about the dosages of medications received by the applicant. Therefore, the HCA Opinion could not be trusted as reliable evidence.", "101. The applicant disagreed, arguing that the authorities had knowingly and willingly contributed to a serious deterioration of his health and deprived him of adequate medical treatment from the moment of his arrest. Harsh prison conditions contributed to the significant aggravation of his diseases. Several medical examinations and sporadically provided treatment were inadequate and insufficient to cure these diseases. Although certain medication treatment was prescribed to him from time to time, he depended totally on financial support from his relatives to provide him with the necessary medicines. He also noted that his relatives had to bribe the prison administration in order to ensure his medical treatment in May 1997.", "102. The applicant contested the veracity of the medical documents submitted by the Government, arguing that these documents were unreliable, did not reflect his actual state of health while in prison, and were drawn up by “non-objective” prison doctors and other medical staff who were not independent. The applicant largely relied on the findings and conclusions contained in the HCA Opinion, and considered this document to be more reliable than the voluminous medical records provided by the Government. He noted that this report was clear as to the inadequacy of the prison doctors'diagnoses of the applicant's condition, the inadequacy of the treatment provided to him in prison as well as the denial of urgent medical treatment during the daily closure of his wing at the Gobustan Prison. These findings were corroborated by a number of reports of various international organisations on the prison conditions, poor state of medical assistance and the “deliberate obstruction” by the Azerbaijani authorities of medical aid, medication and food to political prisoners such as the applicant.", "103. In the applicant's view, the continuous failure by the authorities to provide him with necessary medical care constituted inhuman and degrading treatment within the meaning of Article 3 of the Convention.", "2. The Court's assessment", "( a ) General principles", "104. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, for example, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). Ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162).", "105. Ill-treatment that attains such minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002 ‑ III, with further references ).", "106. A deprivation of liberty may often involve degrading elements. Yet it cannot be said that detention after conviction in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a person on health grounds or to place him in a civil hospital to enable him to obtain specific medical treatment. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006 ).", "( b ) Application to the present case", "107. At the outset, the Court refers to its finding that the part of this complaint relating to the events that had occurred prior to 15 April 2002, the date of the Convention's entry into force with respect to Azerbaijan, was outside of the Court's competence ratione temporis (see Hummatov v. Azerbaijan (dec.), nos. 9852/03 and 13413/04, 18 May 2006). However, as the complaint concerns a situation of a continuing nature, namely the alleged lack of adequate medical treatment spanning a period of several years, the Court considers that it is necessary to have regard to the overall period in question, including the period prior to 15 April 2002, in order to properly assess the applicant's situation as it existed at the time of the Convention's entry into force with respect to Azerbaijan ( see, mutatis mutandis, Kalashnikov v. Russia, no. 47095/99, § 96, ECHR 2002 ‑ VI, and Khokhlich v. Ukraine, no. 41707/98, § § 166 and 187, 29 April 2003 ).", "108. During the period of the applicant's imprisonment prior to 15 April 2002, he had been diagnosed as having a number of serious diseases which he had not suffered from prior to his arrest and detention. In particular, the applicant had no history of tuberculosis prior to his transfer to Bayil Prison. During a medical examination on 8 November 1995 in Investigative Isolator No. 1, it was specifically noted that the applicant was not suffering from tuberculosis. Likewise, no serious diseases were discovered during the period from 28 December 1995 to 3 June 1996 when he was detained in the detention facility of the Ministry of National Security. It was after his transfer to Bayil Prison in June 1996 that the first symptoms of tuberculosis started to appear. The Government did not dispute the applicant's submission that he had been placed in a cell together with other prisoners who were already seriously ill with the active form of tuberculosis. Arguably, starting at least from February 1997, the early symptoms of the disease, such as chest pains and significant loss of weight (see paragraph 33 above), began to manifest themselves. Finally, in April 1997 the applicant was diagnosed with pulmonary tuberculosis. Having regard to these factual circumstances of the case as well as the statistical estimations that the incidence of tuberculosis was very high in the Azerbaijani prisons at the material time, with some reports indicating that it was nearly 50 times higher than the country average (see paragraph 8 0 above), it is apparent that the applicant contracted tuberculosis in Bayil Prison.", "109. The quality of the treatment provided to the applicant following the initial detection of tuberculosis, specifically during the period between 1997 and 200 2, appears to be inadequate. In particular, the evidence put before the Court shows that the applicant was given irregular symptomatic treatment without adhering to a strict medication regime necessary for the tuberculosis therapy. Although he was prescribed a number of anti ‑ bacteriological medications, the disease was still active for more than a year after the initial diagnosis. The medical records indicate that, subsequently, the disease went into remission in September 1998 but that the applicant's condition severely deteriorated in February 2000. The Court notes that only after the intervention by the representatives of the Azerbaijani National Committee of the Helsinki Citizens Assembly did the prison doctors acknowledge the re-activation of the disease and subsequently hospitalised the applicant. In general, although the applicant's medical records pertaining to this period contain a number of entries, it is not clear from these records whether there were regular check-ups on the applicant's condition, whether he was under constant medical supervision or whether medicines prescribed for the applicant were always correctly administered to him, with regard to the specified dosage, frequency and duration.", "110. The applicant's treatment in the hospital from March to May 2000 lasted for 49 days, which was shorter than the two-month initial phase of the tuberculosis treatment recommended by WHO. Furthermore, it is not clear from the medical records whether the initial phase was followed up by the four-month or six-month continuation phase and, if so, whether the intake of medicines during this period was supervised as required by the DOTS strategy. Therefore, regardless of the outcome of the in-patient treatment which, according to the Government's medical records was positive, since the applicant was judged to have recovered, the evidence submitted by the Government is insufficient to establish that the in-patient treatment was adequate. In this respect, the Court also has regard to the HCA Opinion, which concluded that the applicant's in-patient treatment did not correspond to the DOTS standards.", "111. Accordingly, by the time of the Convention's entry into force with respect to Azerbaijan, the applicant had already suffered for several years from a number of various diseases, including tuberculosis which he contracted due to bad conditions of detention in Bayil Prison where he had been detained prior to his transfer to Gobustan Prison. By that time, his overall health condition had deteriorated significantly. As from 15 April 2002, the date of the Convention's entry into force with respect to Azerbaijan, Article 3 of the Convention required the State authorities to adequately secure the applicant's health and well-being in Gobustan Prison (see paragraphs 10 4 -10 6 above). The Court shall, therefore, determine whether, after 15 April 2002, the applicant still needed regular medical assistance, whether he had been deprived of it as he claims and, if so, whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (see Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005 ).", "112. The medical records indicate that, at the time of the Convention's entry into force, the applicant still suffered from a number of serious medical conditions including inter alia chronic bronchopneumonia, chronic enterocolitis, radiculitis, hypertension, atherocardiosclerosis, internal haemorrhoids, stenocardia, ischemia, and osteochondrosis. He continued to suffer from focal tuberculosis which, according to the prison doctors, was no longer active since his in-patient treatment but, according to the HCA Opinion, acquired a chronic character with the possibility of relapse (see paragraph 59 above). The available evidence shows that the applicant became ill with the majority, if not all, of these diseases at one point or another during his imprisonment. The fact that the applicant suffered from such a large number of serious ailments and continued to complain about health problems until his release in September 2004 indicates that he still needed regular medical care during the period falling within the Court's competence ratione temporis.", "113. The Court finds that, in the present case, there is convincing evidence giving rise to serious doubts as to the adequacy of the medical care provided to the applicant. In particular, the HCA Opinion reached the conclusion that, throughout the period from 1996 to the end of 2003, the applicant had received grossly inadequate medical treatment (see paragraphs 54-59 above). The Government contested the “professionalism” of the expert who authored the HCA Opinion. The Court notes, however, that this is the only independent comprehensive medical opinion available in the present case. It is not the Court's task to determine the accuracy of expert evaluations relating to a specific field of expertise such as the medicine and health sciences. The Government has neither procured nor submitted any independent or otherwise credible medical expert reports which would contradict the conclusions reached in the HCA Opinion or at least reveal the “non-professionalism” of the HCA expert in a convincing manner. In these circumstances, the Court accepts the conclusions arrived at in the HCA Opinion, in so far as they are relevant to the period after 15 April 2002.", "114. The prison records submitted by the Government indicate that the applicant had been attended to a number of times throughout the years 2002 and 200 4 and had been prescribed medication. However, it does not appear that the applicant was attended by doctors on a regular or systematic basis. On the contrary, it appears that, on many occasions, the applicant was attended to only after he complained about the lack of systematic attention and specifically requested to see a doctor. The treatment prescribed to him was mainly symptomatic and there is no indication that there was a comprehensive therapeutic strategy aimed at curing his diseases.", "115. In several instances, the prison doctors attended to the applicant with notable delays. In particular, after his lawyer's request of 14 November 2002 for medical assistance to the applicant, the applicant was examined only on 28 November 2002 (see paragraph 43 above). After another such request made on 18 February 2003 and repeated on 27 February 2003, the applicant was finally examined on 5 March 2003 (see paragraph 48 above). In the Court's view, this cannot be deemed to be adequate and reasonable medical attention, given the diseases from which the applicant was suffering.", "116. Moreover, the mere fact that the applicant was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities had to ensure not only that the applicant be attended by a doctor and his complaints be heard, but also that the necessary conditions be created for the prescribed treatment to be actually followed through. For example, on 3 December 2002 the applicant was advised to go on a diet and take warm sitz baths. However, it was not specified what kind of a diet the applicant should adhere to and for what duration. Nor was the frequency and total duration of treatment with sitz baths mentioned. Moreover, no explanation has been forthcoming from the Government as to how it would be possible for the applicant to follow this particular medical advice taking into account his conditions of detention in Gobustan Prison where he did not have hot water in his cell and was allowed to shower once a week. There is no indication that the prison administration provided the applicant with some special dietary ration different from the usual prison menu or gave him access to hot water on a daily basis.", "117. In addition, although the prison doctors'journal submitted by the Government indicates that on a number of occasions the applicant was given certain medicines in the years 2001 to 2003, the Court accepts the applicant's statement that he was not always provided with the medicines prescribed to him and had to rely on his relatives to obtain them. This statement is corroborated by independent reports concerning the Azerbaijani prison system at the relevant time (see paragraph 77 above). In any event, this statement was not contested by the Government. The Court considers that the situation where the applicant had to resort to his family's financial means to procure him the necessary medication which could, in the case of serious diseases, be quite expensive, rendered the overall quality of medical assistance in prison inadequate.", "118. The conditions in which life prisoners were detained in Gobustan Prison also contributed to the difficulties in receiving timely assistance by medical staff in urgent cases. The daily closure of the applicant's wing of Gobustan Prison from 19:00 in the evening until 11:00 the following morning practically eliminated the possibility to see a doctor during these hours if an emergency occurred.", "119. Having regard to the above, the Court finds that the medical attention provided to the applicant in Gobustan Prison during the period after 15 April 2002 cannot be considered adequate.", "120. The Court considers that, in the present case, there is no evidence showing that there was a positive intention to humiliate or debase the applicant. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 of the Convention (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III ).", "121. It does not appear from the evidence available that, during the period after 15 April 2002, there was a relapse in the applicant's tuberculosis condition or that the applicant was exposed to prolonged severe pain due to lack of adequate medical assistance in respect of other diseases. In such circumstances, the Court finds that the suffering he may have endured did not amount to inhuman treatment. However, the Court considers that the lack of adequate medical treatment in Gobustan Prison must have caused the applicant considerable mental suffering diminishing his human dignity, which amounted to degrading treatment within the meaning of Article 3 of the Convention.", "122. Accordingly, the Court finds that there has been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION", "123. The applicant alleged that he did not have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention. This provision reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "124. The parties'submissions in respect of this complaint were substantially the same as those concerning the Government's preliminary objection as to non-exhaustion of domestic remedies in respect of the complaint under Article 3 (see paragraphs 8 6 - 89 above).", "125. The Court points out that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief ( see, among many other authorities, Kudła, cited above, § 157 ).", "126. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law (see, for example, Iovchev v. Bulgaria, no. 41211/98, § 142, 2 February 2006 ).", "127. Taking into account its earlier considerations as to the exhaustion of domestic remedies (paragraphs 9 0 -9 6 above), the Court finds that the Government have not shown that, in the particular circumstances of the present case, the applicant was given an opportunity to have recourse to a remedy which was available and effective both in law and in practice ( see, mutatis mutandis, Melnik, cited above, § 115).", "128. The Court concludes, therefore, that there has been a violation of Article 13 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "129. The applicant complained under Article 6 of the Convention that his right to a fair and public hearing during the appellate proceedings had been restricted, that he had been unable to obtain examination of witnesses prepared to testify on his behalf, and that the court had been biased in favour of the prosecution and had rejected the majority of his petitions without justification. Article 6 provides, where relevant, as follows:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... [T]he press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ...", "3. Everyone charged with a criminal offence has the following minimum rights: ...", "(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... ”", "A. The parties'submissions", "130. The Government submitted that the mere fact that the appellate proceedings had taken place in the prison did not necessarily lead to the conclusion that the trial was not public. They maintained that the public and the media had been duly informed about the time and place of the hearings and had been granted effective access to the trial.", "131. According to the Government, Gobustan Prison was located a distance of 45 kilometres from Baku. To facilitate the public access to the trial, the Ministry of Justice organised a shuttle bus service from Baku to Gobustan Prison.", "132. The trial took place in a room which was 150 square metres in size. It was equipped as a regular courtroom and had an adjoining separate deliberation room. It also had designated places for judges, the defendant, defence counsels, representatives of the media and about 50 seats for observers. Any person wishing to attend the trial could apply to the presiding judge who, in turn, applied to the prison authorities to grant this person access to the prison. In support of this submission, the Government provided a copy of a letter of 13 May 2002, sent by the presiding judge to the Director of Gobustan Prison, requesting permission to grant access to the trial to a list of approximately 40 persons, including journalists.", "133. The Government pointed out that the trial had been attended by representatives of foreign embassies, international organisations including the Council of Europe, local non-governmental organisations and the applicant's relatives. The course of the trial was covered in the media by a number of television channels, newspapers and news agencies.", "134. The Government further submitted that the Court of Appeal had heard testimonies of all witnesses necessary to ascertaining the truth. In total, 62 persons were questioned during the trial, including ten persons questioned at the request of the defence. In addition, written testimonies of six witnesses, given during the previous trial, were read out at the trial in the Court of Appeal at the request of the defence.", "135. The applicant argued that no justification had been advanced by the authorities for holding the trial in a remote and barely accessible high security prison. He maintained that the holding of the trial in a distant location was an attempt to prevent, as much as possible, the attendance of the public and to keep the proceedings “away from public scrutiny”. There was no indication that the applicant was dangerous or could abscond or that, in the course of the trial, there could be any threat to public order or national security. As the case concerned the applicant's “re-trial” following his recognition as a political prisoner by the Council of Europe, the authorities had a particular responsibility in respect of the trial's openness and should have made a particular effort to make it accessible and open to the public.", "136. According to the applicant, Gobustan Prison was located 75 kilometres away from Baku. No public transportation to the prison was available.", "137. The applicant acknowledged that, at a number of hearings, his family members as well as representatives of the mass media, non ‑ governmental and other organisations had been present. However, contrary to the Government, the applicant submitted that there had been no shuttle bus service organised by the Ministry of Justice. His family, using its own financial resources, had to rent a bus from Baku to Gobustan for those who wished to attend the trial. This was not always possible due to financial constraints. When the family was unable to provide a bus for certain hearings, there were either no, or very few, outside observers present at those hearings. Moreover, the applicant contended that on certain occasions the presiding judge had refused access into the prison to certain persons wishing to attend the trial.", "138. The applicant further submitted that most of the seats in the courtroom were occupied by law ‑ enforcement officers and, as a result, only a limited number of outside observers could be accommodated. Those who were allowed to enter were subjected to a rigorous body search in a deliberately intimidating manner, with the aim to discourage people from attending the trial. Despite the numerous requests by the defence counsel, all audio and video recording of the trial was prohibited, allegedly with the aim to leave any procedural violations unrecorded. As a result of the lack of publicity and prohibition of recordings, the trial transcripts were usually incorrect and intentionally omitted facts and testimonies favouring the applicant.", "139. The applicant further submitted that most of the witnesses heard by the court had been prosecution witnesses. The defence was not given an opportunity to challenge the reliability and accuracy of the witnesses whose written testimonies were read out in the courtroom. Moreover, vital witnesses for the defence were not heard. Likewise, most of the defence counsel's petitions questioning the impartiality of the court, asking for admission of new evidence, etc., were rejected or left unanswered with little or no justification.", "B. The Court's assessment", "140. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention. This public character protects litigants against the secret administration of justice with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society (see Axen v. Germany, judgment of 8 December 1983, Series A no. 72, p. 12, § 25; Diennet v. France, judgment of 26 September 1995, Series A no. 325 ‑ A, pp. 14-15, § 33, and Moser v. Austria, no. 12643/02, § 93, 21 September 2006 ).", "141. The Court has previously held that, provided that there has been a public hearing at first instance, the absence of “public hearings” before higher courts may be justified by the special features of the proceedings at issue. Thus, for example, appellate proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 even if there was no public hearing at higher courts (see K.D.B. v. the Netherlands, judgment of 27 March 1998, Reports 1998 ‑ II, p. 630, § 39). On the other hand, the Court has held that, where an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, the requirement of publicity extends to the appellate hearings as well (see, for example, Tierce and Others v. San Marino, nos. 24954/94, 24971/94 and 24972/94, § 95, ECHR 2000 ‑ IX ).", "142. The Court notes that, in the present case, there are a number of special circumstances distinguishing it from ordinary criminal proceedings. In particular, the applicant was convicted by the court of first instance on 12 February 1996 and there was no right of appeal available to him at the material time. Only after the adoption of the new Code of Criminal Procedure and the transitional law of 14 July 2000, did the applicant obtain a right to appeal and the appellate proceedings were instituted on 24 January 2002. The Court notes, in this connection, that the question whether the first instance hearings in the present case were public and fair is outside its competence ratione temporis (see Hummatov (dec.), cited above). On the other hand, the Court also cannot accept as a fact that, by the time of the examination of the applicant's case on appeal, the requirement of a public hearing had already been satisfied at the first instance. The primary reason for the re-opening of the applicant's case was to remedy the alleged lack of a fair hearing at the first instance, as the applicant had been recognised as a “political prisoner” upon Azerbaijan's accession to the Council of Europe and Azerbaijan had committed itself to give a “re-trial” to all political prisoners including the applicant. Moreover, the Court of Appeal was a judicial body with full jurisdiction, because it had the competence to examine the case on points of fact and law as well as the power to assess the proportionality of the penalty to the misconduct. For these reasons, the Court considers that a public hearing at the Court of Appeal was needed in the present case in order to satisfy the requirements of Article 6 § 1.", "143. It is undisputed in the present case that the general public was not formally excluded from the trial at the Court of Appeal. The mere fact that the trial took place in the precincts of Gobustan Prison does not necessarily lead to the conclusion that it lacked publicity. Nor did the fact that any potential spectators would have had to undergo certain identity and possibly security checks in itself deprive the hearing of its public nature (see Riepan v. Austria, no. 35115/97, § 29, ECHR 2000 ‑ XII ).", "144. Nevertheless, it must be borne in mind that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The Court considers that a trial complies with the requirement of publicity only if the general public is able to obtain information about its date and place and if this place is easily accessible to them. In many cases these conditions will be fulfilled by the simple fact that a hearing is held in a regular courtroom large enough to accommodate spectators. However, the holding of a trial outside a regular courtroom, in particular in a place like a prison, to which the general public in principle has no access, presents a serious obstacle to its public character. In such a case, the State is under an obligation to take compensatory measures in order to ensure that the public and the media are duly informed about the place of the hearing and are granted effective access ( ibid ., § 30). The Court will therefore examine whether such measures were taken in the present case.", "145. It is true that various hearings of the Court of Appeal were indeed attended by a number of spectators, although it is not clear if this was the case at each hearing. However, this fact by itself does not mean that all the necessary compensatory measures had been taken by the authorities in order to ensure the publicity of the hearings and free access of all potential spectators throughout the entire trial.", "146. The Court notes that the appellate proceedings lasted from January 2002 to July 2003 and spanned over more than twenty hearings. As it appears from the trial transcripts, a number of the scheduled hearings were postponed to another date. Although the Government maintained that the public and the media had been duly informed about the time and place of the hearings, they failed to submit any evidence in this regard. The Government failed to elaborate in which manner and by what type and frequency of announcement this information was officially conveyed to the public. Apart from this, there is no indication that the public was ever formally provided with instructions on how to reach Gobustan Prison as well as any explanation of access conditions.", "147. The Court also notes that the parties were in disagreement with regard to the distance from Baku to Gobustan Prison. However, regardless of the actual distance, it cannot be disputed that the prison was located far from any inhabited area, was not easily accessible by transport and there was no regular public transportation operating in its vicinity. The Court considers that, in such circumstances, as a compensatory measure, the authorities should have provided regular transportation for spectators for the duration of the trial. However, although the Government argued that the Ministry of Justice organised a shuttle bus service to the prison, they failed to provide evidence in support of this allegation. In such circumstances, the Court accepts the applicant's and independent observers'account that there was no regular shuttle bus service provided by the authorities and that, at least for the majority of the hearings, any people wishing to attend the trial had to resort to their own means of transportation (see paragraphs 8 2 and 8 3 above). The Court considers that the fact that it was necessary to arrange costly means of transport and travel to a remote destination, as opposed to attending the Court of Appeal's regular courtroom in Baku, had a clearly discouraging effect on potential spectators wishing to attend the applicant's trial.", "148. The Court also has regard to the applicant's submission as well as the credible reports of observers indicating that, at a number of hearings, spectators and journalists were pre-selected or not granted access to hearings. Although the Government has submitted the letter of 13 May 2002, sent by the presiding judge to the Director of the Gobustan Prison, requesting permission to grant access to the trial to a number of spectators, the Court considers that this letter cannot serve as a proof that the free access to all spectators was guaranteed at all hearings held in the prison. The Court has not been provided with any official records of Gobustan Prison documenting access of visitors to the prison premises during the hearing dates or any other similar evidence.", "149. In sum, the Court finds that the Court of Appeal failed to adopt adequate compensatory measures to counterbalance the detrimental effect which the holding of the applicant's trial in the closed area of Gobustan Prison had on its public character. Consequently, the trial did not comply with the requirement of publicity laid down in Article 6 § 1 of the Convention.", "150. Moreover, such lack of publicity was not justified for any of the reasons set out in the second sentence of Article 6 § 1. The Court notes that, in the Court of Appeal's interim decisions of 23 April and 13 May 2002, no reasons were offered for holding the trial in a location other than the regular courtroom of the Court of Appeal. The mere fact that, at the time of the examination of his appeal, the applicant was already a prisoner serving a life sentence does not, in itself, automatically imply the necessity of relocation of the appellate proceedings from a normal courtroom to the place of the applicant's imprisonment. The Court reiterates that security problems are a common feature of many criminal proceedings, but cases in which security concerns justify excluding the public from a trial are nevertheless rare (see Riepan, cited above, § 34). In the present case, it was not shown that there were any such security concerns. Moreover, even if there were any, the Court of Appeal apparently did not consider them serious enough either to mention them in its interim decisions of 23 April and 13 May 2003 or to necessitate a formal decision under Article 392.1.6 of the Code of Criminal Procedure excluding the public. In such circumstances, the Court finds no justification for the lack of publicity at the Court of Appeal hearings.", "151. The Court also notes that the subsequent hearing of the applicant's cassation appeal by the Supreme Court, even if held in public, was not sufficient to remedy the lack of publicity at the appellate hearings, as the Supreme Court was limited in its competence only to the questions of law and had no jurisdiction to hold a full rehearing of the case (see, mutatis mutandis, Diennet, cited above, p. 15, § 34, and Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, p. 14, § 32 ).", "152. Accordingly, the Court concludes that there has been a violation of Article 6 § 1 of the Convention due to lack of a public hearing, which is one of the essential features of the right to a fair trial. In the light of this finding and the materials submitted, the Court considers that it is unnecessary to further examine the applicant's other allegations concerning the fairness of the proceedings.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "153. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "154. The applicant claimed a total amount of 2 85, 866 euros (EUR) in respect of pecuniary damage, including EUR 64,500 for loss of income due to unlawful arrest, conviction and imprisonment during the period from 1993 to 2004, EUR 215,000 for loss of property confiscated following his conviction on 12 February 1996 which had not been returned to him after the Court of Appeal and Supreme Court repealed the part of conviction as to the confiscation of property, and EUR 6,366 for his family's expenses on food packages, telephone costs and medical costs during his imprisonment.", "155. The Government submitted that these claims were unsubstantiated and that the applicant failed to produce any reliable evidence supporting them.", "156. The Court cannot speculate as to what the outcome of the proceedings at issue might have been if the violation of the Convention had not occurred (see Riepan, cited above, § 4 6 ). It therefore rejects the applicant's claim in respect of loss of income.", "157. As to the claim for damages resulting from the alleged failure to return the confiscated property, the Court notes that this issue was outside the scope of the present case as the applicant has never raised a formal complaint before the Court in that respect. In any event, the applicant's calculations as to the value of the property are not supported by any evidence. Therefore, the Court rejects this claim as well.", "158. Furthermore, the Court does not discern any causal link between the violations found and the damage alleged in respect of expenses for food packages and telephone costs. It follows that no damages can be awarded in this respect.", "159. Finally, as to the damage claimed in respect of cost of medications borne by the applicant's family, the Court points out that under Rule 60 of the Rules of the Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. The Court notes that the applicant submitted numerous bank statements showing that, between 2002 and 2004, his wife regularly transferred certain amounts from the Netherlands to the applicant's relatives in Baku. However, from this evidence alone, it is not clear what portion of these amounts was spent on medicines for the applicant. The applicant submitted neither any purchase vouchers, nor any detailed and itemised information as to which medicines, in which quantities and for which price, had been purchased. Accordingly, as the applicant failed to submit sufficient evidence for his claim, no award can be made under this head.", "2. Non-pecuniary damage", "160. The applicant claimed a total amount of EUR 20,867,000 in respect of non-pecuniary damage, including EUR 857,000 for the suffering caused as a result of an unfair trial, EUR 10,000 for allegedly unlawful loss of citizenship, and EUR 20,000,000 for torture, ill-treatment and lack of medical assistance in prison during the period from 1995 to 2004.", "161. The Government contested these claims and argued that they were unsubstantiated.", "162. The Court notes that the issue on the applicant's loss of citizenship was outside of the scope of the issues under the Court's examination in the present case. The applicant's complaints concerning the alleged torture and other forms of ill-treatment inflicted in custody during the period prior to 15 April 2002 were declared inadmissible in the Court's partial inadmissibility decision of 11 September 2003. Therefore, no award can be made in respect of these claims.", "163. As to the remainder of the claim for non-pecuniary damage, the Court considers that the finding of violations of the Convention cannot constitute sufficient reparation in the present case. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 12 ,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on this amount.", "B. Costs and expenses", "164. The applicant claimed EUR 2,090 for legal fees.", "165. The Government did not contest this claim.", "166. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the amount claimed in full, i.e. EUR 2,090, less the sum of EUR 701 received in legal aid from the Council of Europe, plus any tax that may be chargeable on this amount.", "C. Default interest", "167. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1952. At the time of his death he was serving his sentence at the Kosh penitentiary institution.", "A. The criminal proceedings against the applicant", "6. On 29 November 2001 criminal proceedings were instituted in respect of the applicant on account of fraudulent acquisition of property and falsification of documents. The applicant, who had no previous convictions, was suspected of defrauding his business partner, V.G.", "7. On 8 February 2002 the investigating authority ordered an opinion to be prepared by a handwriting expert. On 8 May 2002 the investigating authority ordered two accounting expert opinions to be prepared by two accounting experts V.A. and A.M.", "8. On 8 July 2002 the investigating authority recognised V.G. as a victim and as the civil plaintiff.", "9. On 14 March 2003 the applicant was formally charged with the above offences, and a new charge of tax evasion.", "10. On 6 May 2003 the Kentron and Nork-Marash District Court of Yerevan ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան ) decided to detain the applicant.", "11. On 12 June 2003 the prosecutor approved the indictment, which was then submitted to the courts. Attached to the indictment was the list of persons subject to be called to court. This list included the accused, the victim, ten witnesses, including the applicant's accountant K.S. and treasurer K.M., and the two accounting experts V.A. and A.M.", "12. On 14 June 2003 the criminal case against the applicant was put before the Malatia-Sebastia District Court of Yerevan ( Երևան քաղաքի Մալաթիա-Սեբաստիա համայնքի առաջին ատյանի դատարան ).", "13. On 3 December 2003 the victim lodged his civil claim seeking damages in the amounts of 34,159,008 Armenian drams (AMD) and 119,000 United States dollars (USD).", "14. On 27 January 2004 the Malatia-Sebastia District Court of Yerevan found the applicant guilty as charged and sentenced him to seven years in prison. The court also fully granted the victim's civil claim for damages. The court based its judgment on, inter alia, the statements of ten witnesses examined in court, including accountant K.S. and treasurer K.M, an act prepared by the tax authority specialists, two court-ordered accounting expert opinions, the statements of accounting experts V.A. and A.M., and a handwriting expert opinion.", "15. On 10 February 2004 the applicant lodged an appeal with the Criminal and Military Court of Appeal ( ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան ). The applicant also submitted written explanations concerning the civil claim, in which he requested the Court of Appeal to call and examine the victim's accountant S.H. as a witness. He also requested that accountant K.S. and treasurer K.M. be called for additional examination. He further asked to call three other persons, K., H. and Z. To substantiate his request to have accountants S.H. and K.S. called and examined, the applicant submitted to the court two accounting reports prepared by them which, according to him, contained exculpatory information.", "16. On 19 March 2004 the Criminal and Military Court of Appeal held its first hearing. In the courtroom the applicant was placed in a metal cage which measured about 3 sq. m. The applicant was represented by two defence counsel. At the hearing, the applicant's defence counsel filed a motion with the court, arguing that the applicant's placement in a metal cage in the presence of many people, including relatives and friends, amounted to degrading treatment and humiliated him. Furthermore, this violated the principle of equality of arms, because the applicant, being in a cage, was not able to feel equal to the other parties. The fact that the applicant was a detainee was not sufficient justification to keep him in a metal cage during the court hearings. Nor did the law on arrested and detained persons prescribe placement of a detainee in a metal cage in the courtroom. The defence counsel requested the court to release the applicant from the cage and to allow him to be seated in the seats meant for the parties, namely next to his lawyer.", "17. The prosecutor objected to this motion, claiming that the law on arrested and detained persons said nothing about a defendant being released from the metal cage. Besides, the defendant was to be seated in the seat meant for him and that could not be regarded as violating his dignity. The victim's representative also objected to this motion, claiming that the applicant was a detainee, therefore he had to be kept in a metal cage. Furthermore, there were no requisite security measures in the courtroom.", "18. The Court of Appeal decided to refuse this motion as unsubstantiated, finding that the placement of the defendant in the seat meant for him during the court hearings did not violate the rights invoked by the defence. The court further stated that its decision was based on security considerations.", "19. During the entire proceedings before the Court of Appeal the applicant was kept in the metal cage. The proceedings lasted about two months and included at least twelve public hearings. According to the applicant, the hearings lasted on average about four hours. It appears that they were attended by the applicant's children, wife, siblings and friends, and other members of the public.", "20. At the hearing of 21 May 2004 the applicant repeated his request to call witnesses, made earlier in his written explanations. The Court of Appeal refused this request on the ground that accountant K.S. and treasurer K.M. had already been examined and made detailed statements during the investigation and the proceedings in the District Court. As to the accountant S.H., the court stated that it was unnecessary to call her in this particular case. As to K., H. and Z., the court stated that their identity was unknown.", "21. On 25 May 2004 the Criminal and Military Court of Appeal upheld the applicant's sentence. The Court of Appeal only partially granted the victim's civil claim, awarding him AMD 23,063,108 and USD 119,000.", "22. On 4 June 2004 the applicant lodged an appeal on points of law.", "23. On 30 July 2004 the Court of Cassation ( ՀՀ վճռաբեկ դատարան ) dismissed the appeal and upheld the applicant's conviction.", "B. The applicant's state of health and the alleged lack of requisite medical assistance in detention", "24. It appears that, prior to his placement in detention, the applicant suffered from a number of diseases, including acute bleeding duodenal ulcer and diabetes. It further appears that he had suffered a heart attack in 2001.", "25. On 6 May 2003 the applicant was placed in Nubarashen Detention Facility ( «Նուբարաշեն» քրեակատարողական հիմնարկ ).", "26. On 7 May 2003 the applicant was examined by a doctor upon his admission to the detention facility. It was noted that he suffered from ischemic heart disease, gallstones and diabetes.", "27. On 20 June 2003 the applicant was examined by a surgeon of the facility's medical unit to whom he complained of pain in the epigastric region which worsened at night and improved after eating. He further complained of loss of weight and frequent vomiting. The surgeon noted that the applicant, prior to his detention, had been diagnosed with an acute bleeding duodenal ulcer and recommended to have surgery. The applicant agreed in writing to have surgery.", "28. On 26 June 2003 the applicant was transferred to the Hospital for Prisoners ( «Դատապարտյալների հիվանդանոց» քրեակատարողական հիմնարկ ). According to the applicant's treatment plan, developed upon his admission, the applicant was supposed to undergo blood and urine tests, an electrocardiogram, a gastroscopy, and consultations with a cardiologist and an endocrinologist.", "29. It appears from the applicant's hospital medical file that the applicant was under regular medical observation.", "30. On 27 and 28 June 2003 blood and urine tests were carried out.", "31. On 30 June and 4 July 2003 an endoscopy and a gastroscopy were performed. The diagnosis of an acute, bleeding duodenal ulcer was confirmed. It appears that on the latter date the applicant also underwent haemostatic treatment of the ulcer.", "32. On 3 July 2003 the applicant underwent an ultrasound scan of his abdominal area and urinary organs.", "33. On 7 July 2003 the applicant's gastrointestinal problems exacerbated, causing him to feel dizzy and to collapse. Medical aid was provided.", "34. By a letter of 8 July 2003 the chief of the Hospital for Prisoners informed the judge examining the applicant's case that the applicant had been admitted to the hospital as an emergency case and had been diagnosed with an acute bleeding duodenal ulcer. On 4 July 2003 a gastroscopy had been performed, accompanied by haemostatic therapy. The applicant continued to receive treatment and for the time being was unfit for trial.", "35. On 11 July 2003 an electrocardiogram was performed.", "36. On 23 July 2003 the applicant was examined by an endocrinologist. The endocrinologist recommended an additional glycaemia test on an empty stomach in order to decide on the applicant's further treatment.", "37. On 29 July 2003 the applicant was discharged from the hospital and transferred back to the detention facility. According to the relevant discharge certificate ( էպիկրիզ ) issued by the Chief of the Hospital, M.G., and the Head of the Surgical Unit, A.D.:", "“Following the relevant examination and consultations carried out in the unit, [the applicant] was diagnosed as having an ulcer, acute bleeding duodenal ulcer, diabetes (type 2, medium degree, subcompensated stage) and diabetic angiopathy, for which, apart from the relevant treatment, on 4 July 2003 [the applicant] received haemostatic therapy of the ulcer and was discharged on 29 July 2003. The patient must undergo regular medical check-ups.”", "38. On the same date it was noted in the applicant's medical file that he was being discharged after receiving appropriate treatment and was in satisfactory condition.", "39. The Government alleged that the applicant had also undergone the recommended surgery at the hospital. The applicant contested this allegation and claimed that no surgery had been carried out.", "40. On 5 August 2003 the applicant was transferred to the medical unit of the detention facility for further treatment since his state of health had deteriorated. At the medical unit, the applicant was examined by a doctor to whom he complained of, inter alia, pain in his chest, dry mouth, asthenia, headache, dizziness and occasional vomiting. Blood and urine tests were carried out.", "41. From 11 to 29 August 2003, according to the records made in his medical file, the applicant was under regular medical observation and received medication. Regular check-ups were performed once every two to three days. His state of health during this period was recorded as fluctuating between stable and deteriorated.", "42. On 14 August 2003 an ambulance was called to the courtroom since the applicant's heart condition worsened. He was examined by a cardiologist and diagnosed with ischemic heart disease, post-infarction cardiosclerosis and rest stenocardia. An electrocardiogram was prescribed as well as medication including validol, analgin and dimedrol.", "43. On 22 August 2003 an ambulance was called to the courtroom for the same reasons. The applicant's heart diagnosis was confirmed and in-patient examination and treatment were recommended.", "44. By a letter of 22 August 2003 the examining judge informed the chief of the detention facility about the events of 14 and 22 August 2003 and inquired about the applicant's state of health and whether he was receiving requisite medical assistance.", "45. By a letter of 28 August 2003 the chief of the detention facility informed the judge that the applicant was suffering from ischemic heart disease, exertion and rest stenocardia, post-infarction cardiosclerosis, diabetes, diabetic angiopathy and bleeding duodenal ulcer. The letter further stated that the applicant was under constant medical observation and was receiving treatment.", "46. On 9 September 2003 the applicant's counsel applied to the Head of the Criminal Corrections Department of the Ministry of Justice ( ՀՀ արդարադատության նախարարության քրեակատարողական վարչության պետ ), stating that the applicant's state of health required regular medical check-ups and requesting his transfer to the Hospital for Prisoners for treatment. It appears that no reply to this complaint was received", "47. On 13 October 2003 the applicant was transferred from the medical unit back to his cell.", "48. The applicant alleged that from the date of his transfer to his cell in the detention facility until his transfer to a correctional facility on 13 August 2004 he was never examined by a doctor. He had verbally applied on numerous occasions to the administration of the detention facility requesting medical assistance, but no such assistance or medication had been provided, nor any special diet prescribed. The necessary medicines and food products were provided by his relatives on a regular basis.", "49. The Government confirmed that the applicant had verbally applied to the administration of the detention facility for medical assistance within the above-mentioned period, but alleged that such assistance had been provided to the applicant on each and every occasion, including necessary medicines and diet. He was regularly checked by a doctor and, if any symptoms were disclosed, he promptly received the necessary treatment. The detention facility was staffed with the following specialists: two physicians, one psychiatrist-neurologist, one dermatologist, one dentist, one tuberculosis specialist, one laboratory assistant and six doctors' assistants. The latter visited the detainees every day to check their health and the doctors were immediately alerted if there were any problems.", "50. In support of this allegation the Government submitted a statement made on 27 June 2006 by the Principal Specialist of the Medical Assistance Unit of the Criminal Corrections Department of the Ministry of Justice, A.H. According to this statement, between October 2003 and August 2004 the applicant had regularly applied to the medical staff of the detention facility and had received medical consultations and out-patient treatment for ischemic heart disease, exertion and rest stenocardia, diabetes and duodenal ulcer. Medication was prescribed, including solution of analgin, papaverin, dibazol, phurosemid, validol, ranitidine, nitrong and diabeton, which the detention facility received on a quarterly basis from the Hospital for Prisoners.", "51. On 18 December 2003 the applicant underwent an ultrasound scan of his abdominal area by an outside doctor invited by his relatives.", "52. On 9 February 2004, as it appears from the relevant certificate, the applicant was found to be fit for work after being examined by a doctor.", "53. The court hearing scheduled for 13 April 2004 was adjourned because of the applicant's poor health.", "54. On 17 June 2004 the applicant's counsel applied to the Chief of Nubarashen Detention Facility, complaining that it was dangerous for the applicant, in view of his health, to be kept in a common cell. He further complained that, in spite of this, the applicant had recently been transferred to another cell where conditions were even worse. Counsel requested that the applicant be urgently transferred to a hospital for treatment.", "55. On 17 July 2004 the applicant's counsel applied to the Head of the Criminal Corrections Department of the Ministry of Justice, complaining that, notwithstanding the applicant's state of health, he was kept in a common cell. He further complained that the Chief of Nubarashen Detention Facility had failed to transfer the applicant to a hospital and to provide treatment.", "56. On 27 July 2004 at 1.20 a.m. an ambulance was called to the detention facility because the applicant suffered a heart attack.", "57. On 28 July 2004 the applicant's counsel lodged a similar complaint to that of 17 July 2004, with a copy to the Chief of Nubarashen Detention Facility.", "58. By a letter of 29 July 2004 the Head of the Criminal Corrections Department replied to counsel's complaint of 17 July 2004, stating that the applicant had already been hospitalised twice for treatment from 26 June to 29 July 2003 and from 5 August to 13 October 2003. The letter further stated that the applicant was currently under observation by the medical staff and his state of health was satisfactory.", "59. On 11 and 12 August 2004 the applicant's counsel lodged two complaints with the Head of the Criminal Corrections Department and with the Minister of Justice, with a copy to the Chief of Nubarashen Detention Facility, claiming that the applicant's state of health was deteriorating daily, but no measures were being taken. He submitted that the applicant's illnesses required a special diet, regular medical check-ups and medication. In spite of this, the applicant was kept in conditions where none of this was available.", "60. By a letter of 13 August 2004 the Head of the Criminal Corrections Department replied to the counsel's complaint of 28 July 2004, stating that the letter of 29 July 2004 had already answered the issues raised.", "61. On 13 August 2004, after his conviction was upheld in the final instance, the applicant was transferred to Kosh correctional facility to serve his sentence.", "62. On 14 August 2004 the applicant was examined by a doctor upon his admission to the correctional facility. He complained of asthenia, dizziness and of pain in his epigastric area and the left part of his back. His general state of health was found to be satisfactory. Medication was prescribed.", "63. By a letter of 20 August 2004 the Head of the Criminal Corrections Department replied to the counsel's complaint of 12 August 2004, stating that the applicant had more than once received treatment in various facilities and that he was currently serving his sentence at Kosh correctional facility where his state of health was found to be satisfactory.", "C. Further developments", "64. On 29 December 2006 the Aragatsotn Regional Court ( Արագածոտն մարզի առաջին ատյանի դատարան ) dismissed the applicant's request to be released on parole, finding that he was not entitled under the law to lodge such a request directly with the courts without the prior approval by the parole board.", "65. On an unspecified date the applicant lodged an appeal.", "66. On 14 March 2007 the Criminal and Military Court of Appeal reviewed the decision of the Regional Court and decided to examine and grant the applicant's request for release in view of his good behaviour.", "67. This decision, though subject to appeal on points of law, was immediately enforceable, so the applicant was released from prison.", "68. On 1 June 2007 the Court of Cassation quashed the decision of the Court of Appeal upon the prosecutor's appeal and decided to terminate the proceedings on the same ground as the Regional Court.", "69. The applicant was taken back to prison.", "70. On 20 January 2009 the applicant died in prison from a heart attack.", "i. staff and facilities", "106. At Nubarashen Prison, the full-time health care team consisted of 7 doctors (head doctor, internist, surgeon, stomatologist, dermato-venerologist, radiologist, psychiatrist), 5 feldshers, a laboratory assistant, an X-ray technician and a dental technician. Assistance was provided by several prisoner orderlies.", "...", "At Nubarashen Prison, the presence of a feldsher was ensured on a 24-hour basis. ...", "107. As regards the complement in terms of doctors, the situation at Nubarashen ... [Prison] can be considered satisfactory. ...", "...", "108. The CPT is particularly concerned about the low number of qualified feldshers and the total lack of qualified nurses at the four establishments. Given the size and structure of the respective inmate populations (with rapid inmate turnover at the two pre-trial facilities and noticeable proportions of older prisoners at the two colonies), the CPT recommends that the nursing staff resources (i.e. feldshers and nurses) at the four establishments be increased.", "The CPT also wishes to stress that a person competent to provide first aid, preferably with a recognised nursing qualification, should always be present on prison premises, including at night and weekends.", "109. In the CPT's view, the employment of inmates as orderlies should be seen as a last resort, and prisoners should under no circumstances be involved in the distribution of medicines. Further, such persons should not be given access to medical files, nor should they be present during medical examinations. The Committee recommends that the position of the prisoners working as orderlies at Nubarashen ... [Prison] (as well as other penal establishments in Armenia) be reviewed, in the light of these considerations.", "110. The delegation heard very few complaints about access to the doctor (or, as in Gyumri, to the feldsher). However, at the four prisons, inmates complained about the standard of treatment and care, in particular as regards the range of medication prescribed and the quality of dental care (which appeared to be limited to extractions). At each of the establishments, the transfer of inmates to the Hospital for Prisoners in Yerevan, when required by their state of health, was said to be unproblematic. ...", "...", "113. The supply of basic medication and related materials was grossly insufficient at each of the establishments. This was hardly surprising, given the very limited budget for acquiring such items. In this regard, the health-care services concerned depended to a considerable extent on donations and inmates' own resources.", "Reference has already been made to the State's duty of care vis-à-vis persons deprived of their liberty, even in periods of serious economic difficulties ... The CPT recommends that the Armenian authorities take measures without delay to ensure the supply of appropriate medicines and related materials to the prisons visited and, if necessary, to other penitentiary establishments in Armenia .”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Law on Conditions for Holding Arrested and Detained Persons ( «Ձերբակալված և կալանավորված անձանց պահելու մասին» ՀՀ օրենք )", "71. According to Section 13, a detainee has the right, inter alia, to healthcare, including to receive sufficient food and urgent medical assistance.", "72. According to Section 21, the administration of a detention facility shall ensure the sanitary, hygienic and anti-epidemic conditions necessary for the preservation of health of detainees. At least one general practitioner shall work at the detention facility. A detainee in need of specialised medical assistance must be transferred to a specialised or civilian medical institution.", "B. The Code of Criminal Procedure", "1. Presumption of innocence", "73. According to Article 18, the suspect or the accused shall be considered innocent until his guilt is proved by a final court verdict in accordance with the procedure prescribed by this Code.", "2. Calling of witnesses", "74. According to Article 23 § 3, the court does not side with the prosecution or the defence and acts only in the interests of the law.", "75. According to Article 65 § 2 (12), the accused has the right to file motions.", "76. According to Article 102 § 2, motions and requests must be examined and ruled upon immediately after being filed.", "77. According to Article 271 § 1, a list of persons subject to be called to court shall be annexed to the indictment. The investigator must indicate in the list the location of these persons and the pages of the case file which contain their statements or conclusions.", "78. According to Article 277 § 1, the prosecutor, by approving the indictment, shall transmit the case to the competent court.", "79. According to Article 292, the judge who has taken over the criminal case shall study the materials of the case and within fifteen days after taking over the case shall adopt, inter alia, a decision to set the case down for trial.", "80. According to Article 293 § 2, the decision to set the case down for trial must contain, inter alia, the list of persons subject to be called to court.", "81. According to Article 331 §§ 1 and 2, in the preparatory stage of the trial, the presiding judge shall inquire whether the prosecution and the defence want to file motions seeking to obtain new evidence and to include it in the case file. The court must examine each motion filed and hear the parties. The court shall grant the motion, if the circumstances which it seeks to disclose may be significant for the case. A decision refusing a motion must be reasoned.", "82. According to Article 391 § 5, the parties are entitled to file motions in the court of appeal seeking to call new witnesses.", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS", "A. The 3rd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) – CPT/Inf(93)12", "83. The relevant extracts from the Reports read as follows:", "“ a. Access to a doctor", "... 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay. ...", "35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...", "Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.", "36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...", "37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.", "b. Equivalence of care", "i) general medicine", "38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.", "There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).", "39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.", "Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.", "40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”", "B. The Report of the CPT on its Visit to Armenia in 2002 – CPT/Inf(2004)25", "84. The relevant extracts from the Report read as follows:", "“ b. health care services in the prisons visited [(four establishments, including Nubarashen Prison)]", "THE LAW", "I. THE GOVERNMENT'S REQUEST TO STRIKE THE CASE OUT OF THE LIST", "85. The Government submitted that the applicant's daughter, Ms Arusyak Harutyunyan, had no legitimate interest in pursuing the application lodged by her late father and requested that the application be struck off the list.", "86. The Court points out that on numerous occasions it has accepted that the parents, spouse or children of a deceased applicant are entitled to take his place in the proceedings, if they express their wish to do so (see, for example, Deweer v. Belgium, 27 February 1980, §§ 37-38, Series A no. 35; X v. the United Kingdom, 5 November 1981, § 32, Series A no. 46; Vocaturo v. Italy, 24 May 1991, § 2, Series A no. 206 ‑ C; G. v. Italy, 27 February 1992, § 2, Series A no. 228 ‑ F; Pandolfelli and Palumbo v. Italy, 27 February 1992, § 2, Series A no. 231 ‑ B; X v. France, 31 March 1992, § 26, Series A no. 234 ‑ C; Raimondo v. Italy, 22 February 1994, § 2, Series A no. 281 ‑ A; and Dalban v. Romania [GC], no. 28114/95, §§ 38-39, ECHR 1999 ‑ VI). The Government did not raise any specific arguments in support of their request. The Court does not see any special circumstances in the present case to depart from its established case-law.", "87. Consequently, the Government's request for the case to be struck out should be dismissed. The Court holds that Ms Arusyak Harutyunyan has standing to continue the present proceedings in the applicant's place.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "88. The applicant complained that he had not received requisite medical assistance during his stay at the detention facility from 6 May 2003 to 13 August 2004. The applicant also complained about being placed in a metal cage during the appeal proceedings. He invoked Article 3 of the Convention which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Alleged lack of requisite medical assistance in detention", "1. The parties' submissions", "(a) The Government", "89. The Government argued that the medical assistance provided to the applicant at Nubarashen Detention Facility was in compliance with the CPT standards. The applicant indeed suffered from several chronic diseases such as duodenal ulcer, gastritis, diabetes and also heart problems. This was noted at the time of the applicant's admission to the detention facility and he was placed under adequate supervision and care. The healthcare service at the detention facility had sufficient specialised staff and the applicant had access to a doctor at any time. The medical assistance was provided to him on the initiative of the medical staff and did not depend on the discretion of the investigating authority, unlike the case of Khudobin v. Russia (no. 59696/00, § 86, ECHR 2006 ‑ XII (extracts)). Whenever any symptoms appeared, the applicant was promptly examined and received out-patient treatment, including consultations and prescription of medicine when necessary. All this was duly recorded in the medical files.", "90. Furthermore, the applicant was twice transferred for in-patient treatment at the prisoners' hospital and the detention facility's medical unit, where he underwent numerous examinations and treatment. At the hospital the applicant underwent several ultrasound scans of his abdominal area and had blood and urine tests and an electrocardiogram. At the medical unit he once again underwent examinations. On both occasions the applicant received medical care and treatment through medication and was discharged after his state of health sufficiently improved and stabilised.", "91. Referring to the events of 7 July and 14 and 22 August 2003 and 27 July 2004, the Government claimed that the applicant was provided with immediate medical aid whenever he had health problems. Furthermore, his state of health and the adequacy of the medical treatment received by him were under the supervision of the court, as can be seen from the judge's letter of 22 August 2003.", "92. The Government also claimed that the applicant had failed to submit any proof that the alleged lack of requisite medical assistance caused him mental or physical suffering, diminishing his human dignity, or that during the contested period his state of health deteriorated. There was no reason for anxiety on his part since the presence of a medical assistant was ensured at the detention facility on a 24-hour basis. Furthermore, the authorities did not place any restrictions on the parcels and medicine brought by the applicant's relatives and also allowed them to invite an outside doctor, which they did on 18 December 2003.", "93. The Government finally claimed that the authorities had no intention to humiliate the applicant, since he was kept in normal prison conditions and was transferred to a hospital each time he was feeling unwell, and was kept there until his health improved. With reference to the CPT Report on its 2002 periodic visit to Armenia, the Government claimed that in general the performance of the health-care service at Nubarashen Detention Facility, which was adequately staffed, was satisfactory.", "(b) The applicant", "94. The applicant submitted at the outset that he was not adequately examined upon his admission to the detention facility, since not all of his diseases were duly noted, including the duodenal ulcer. He further admitted that he enjoyed “access to a doctor” in the sense of being able to complain about his health problems to the medical staff, but argued that no medical assistance was provided as a result of such complaints.", "95. The applicant further argued that the relevant medical recommendations did not receive a proper follow-up. Firstly, no operation was carried out despite the doctor's recommendation of 20 June 2003. Secondly, no medical assistance was provided to him between September 2003 and August 2004, including regular medical check-ups and prescription and provision of medication and of a special diet. Apart from the treatment received at the hospital and the medical unit and the two examinations which he underwent on 7 May and 20 June 2003, his medical files do not contain any records. Within that period he and his lawyer complained both verbally and in writing to various authorities about his poor state of health, but these complaints remained unanswered.", "96. The applicant further submitted that he was not complaining about the two periods when he received in-patient treatment, but about the fact that throughout the remaining period he was kept in a common cell and was not provided with the medical assistance he needed and asked for. The failure to provide him with the medical care that his poor state of health required caused him immense mental and physical suffering, which eventually led to the abrupt deterioration of his health and his suffering a heart attack.", "97. As regards the examining judge's letter of 22 August 2003, the applicant alleged that the main purpose of this inquiry was to find out whether he was fit for trial. In any event, this inquiry did not produce any positive results. Furthermore, the fact that, instead of taking any steps to ensure his adequate treatment, the administration of the detention facility decided in June 2004 to transfer him to a cell where conditions were even worse, suggested that they had the intention to humiliate him.", "98. The applicant finally claimed that the fact that the authorities did not create any obstacles for his relatives to invite an outside doctor did not absolve them from their obligation to provide him with requisite medical assistance. Nor did the Government's reference to the allegedly satisfactory performance of the detention facility's healthcare service in general.", "2. The Court's assessment", "(a) Admissibility", "99. The Court notes at the outset that the applicant raised his complaint about the allegedly poor conditions of his cell at Nubarashen Detention Facility for the first time in his observations filed on 5 May 2007. However, the applicant's detention in that facility ended on 13 August 2004, which is more than six months before the date of introduction of this complaint (see, for example, Polufakin and Chernyshev v. Russia, no. 30997/02, § 146, 25 September 2008). It follows that this complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "100. As to the complaint concerning the alleged failure to provide the applicant with requisite medical assistance in that facility, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "(i) General principles", "101. The Court observes at the outset that Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see, among other authorities, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV).", "102. It reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Costello-Roberts v. the United Kingdom, 25 March 1993, § 30, Series A no. 247 ‑ C; and Dougoz v. Greece, no. 40907/98, § 44, ECHR 2001 ‑ II). Although the question of whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III)", "103. The Court observes that it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 (see Mouisel v. France, no. 67263/01, § 38, ECHR 2002-IX). Although this Article cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical assistance (see Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005, and Khudobin v. Russia, no. 59696/00, § 93, ECHR 2006 ‑ XII (extracts)).", "104. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI).", "(ii) Application of these principles in the present case", "105. The Court notes at the outset that it is undisputed that the applicant suffered from a number of serious illnesses, including acute bleeding duodenal ulcer, diabetes, diabetic angiopathy and a heart condition. At the time of his admission to the detention facility, however, only the applicant's ischemic heart disease and diabetes were noted, but no record was made of his acute bleeding duodenal ulcer or diabetic angiopathy.", "106. In any event, on 20 June 2003 – about a month and a half after he was placed in detention – the applicant was examined by a surgeon, during which it was noted that the applicant also suffered from acute bleeding duodenal ulcer and surgery was recommended (see paragraph 27 above). Following this recommendation, on 26 June 2003, the applicant was transferred to a hospital for prisoners. The parties disagreed as to whether this recommendation received an adequate follow-up (see paragraph 39 above).", "107. The Court observes, however, that the Government's allegation that surgery had actually been performed on the applicant is not supported by the materials of the case. In particular, both the applicant's hospital medical file and the discharge certificate of 29 July 2003 said nothing about any surgery having been carried out in respect of the applicant. It is hard to imagine that such a vital piece of information would have been omitted from those documents. The Court is therefore not convinced by the Government's allegation and concludes that the doctor's recommendation of 20 June 2003, which could potentially have improved the applicant's state of health, was not followed up and this without any valid reasons.", "108. The Court notes, on the other hand, that the authorities made certain efforts to meet the applicant's health needs by hospitalising him on two occasions. The applicant also admitted this fact, adding that he had no specific grievances in respect of the treatment received during those periods. The Court, however, agrees with the applicant that nothing suggests that these efforts had, as alleged by the Government, a stabilising effect on his health.", "109. In particular, as regards the applicant's stay at the hospital for prisoners between 26 June and 29 July 2003, it is true that some treatment, including haemostatic therapy of ulcer, was given. It is also true that, while the applicant's discharge certificate of 29 July 2003 was silent on any improvement in his state of health, it was, nevertheless, noted in his medical file that he was being discharged in satisfactory condition. However, only a few days after his discharge from the hospital the applicant was once again hospitalised – this time at the medical unit of the detention facility – since his state of health deteriorated (see paragraph 40 above). Furthermore, the above discharge certificate explicitly stated that the applicant had to undergo regular medical check-ups. This suggests that the applicant's treatment, even if possibly useful, nevertheless cannot be said to have been successful to the extent that it made any further medical supervision unnecessary.", "110. As regards the treatment received by the applicant at the medical unit of the detention facility, the Court points out that the applicant was transferred there on 5 August 2003 and was under regular observation from 11 to 29 August 2003. However, his medical file does not contain any further records. It is notable that soon after the records stopped, namely on 9 September 2003, the applicant's lawyer applied to the authorities with a request that the applicant be provided with regular medical check-ups, which remained unanswered (see paragraph 46 above). It therefore appears that no observation and treatment at all were carried out between 29 August and 13 October 2003, that is the date when the applicant was transferred back to his cell. Nor, in such circumstances, is it clear what the outcome of the applicant's treatment at the medical unit was.", "111. All the above evidence and circumstances suggest that the applicant was in need of regular medical check-ups and assistance. The parties disagreed as to whether this need was actually met. The applicant alleged that no medical assistance was provided to him during his detention apart from the two periods when he was under medical supervision. The Government admitted that the applicant had applied verbally for medical assistance during the disputed period, but alleged that such assistance was provided to him on each and every occasion, including regular medical check-ups (see paragraph 49 above).", "112. The Court notes, however, that the applicant's medical file does not contain a single record of any medical check-up or assistance provided to him between 29 August 2003 and 13 August 2004 by the medical staff of the detention facility. It therefore does not find the Government's allegation to be convincing. The Court further notes that the discharge certificate of 29 July 2003, which explicitly required that the applicant undergo regular medical check-ups, did not make such check-ups dependent on the applicant's initiative. The detention facility's medical staff therefore had the duty to carry out such check-ups irrespective of whether the applicant himself asked for this. It is clear that the applicant was in need of such regular medical care which was, however, denied to him during the said period. The Government's argument that the medical unit of the detention facility was sufficiently staffed is therefore irrelevant, given that no regular medical care was provided specifically to the applicant.", "113. As regards the Government's argument that the applicant was not subjected to any mental or physical suffering as a result of the alleged lack of requisite medical assistance, the Court notes at the outset that the applicant did experience an emergency situation on account of his heart condition when he suffered a heart attack on 27 July 2004 (see paragraph 56 above). It is not for the Court to speculate whether the heart attack suffered by the applicant was a direct consequence of the failure to provide him with regular medical care. However, the Court finds it especially worrying that the applicant's heart attack coincided with the several unsuccessful attempts made by his counsel to draw the attention of the authorities to the applicant's need for medical care (see paragraphs 54 and 55 above).", "114. It is true that there is no material before the Court to suggest that the applicant had any medical emergency or was exposed to severe or prolonged pain during the period in question on account of his other illnesses, including the acute bleeding duodenal ulcer and the diabetes. The Court points out, however, that where complaints are made about a failure to provide requisite medical assistance in detention, it is not indispensable for such a failure to lead to any medical emergency or otherwise cause severe or prolonged pain in order to find that a detainee was subjected to treatment incompatible with the guarantees of Article 3. The fact that a detainee needed and requested such assistance but it was unavailable to him may, in certain circumstances, suffice to reach a conclusion that such treatment was degrading within the meaning of that Article (see Sarban, cited above, §§ 86-87 and 90).", "115. Thus, as already indicated above, the applicant was clearly in need of regular medical care and supervision, which was, however, denied to him over a prolonged period of time. All the complaints in this respect lodged by the applicant's counsel either remained unanswered (see paragraph 46 above) or simply received formal replies (see paragraphs 58, 60 and 63 above). The applicant's verbal requests for medical assistance were also to no avail. In the Court's opinion, this must have given rise to considerable anxiety and distress on the part of the applicant, who clearly suffered from the effects of his medical condition, which went beyond the unavoidable level of suffering inherent in detention.", "116. There has accordingly been a violation of Article 3 of the Convention.", "B. The applicant's placement in a metal cage during the appeal proceedings", "1. The parties' submissions", "117. The Government, relying on the judgment in the case of Sarban (cited above, §§ 88-90), submitted that placement of a person in a metal cage during court proceedings could be viewed only as a factor contributing to a finding of a violation of Article 3, but in itself not sufficient to reach such a finding. In that case, as opposed to the present one, there were other factors which led the Court to make such a finding, including the high publicity of the case and the applicant being publicly handcuffed and having his blood pressure measured through the bars of the cage in front of the public. While in that case the security measures in question were unjustified, in the present case the Court of Appeal gave detailed reasons for the necessity to keep the applicant in the cage, which included risks to security and the victim's fear.", "118. Furthermore, the cage where the applicant was placed was considered as the seat intended for the defendant. There was therefore no intention to humiliate the applicant or reasons for him to feel humiliated in his own eyes. The Government finally submitted that the phenomenon of metal cages in courtrooms was inherited from the Soviet system and such cages had been removed following the circumstances of the present case as a result of reforms.", "119. The applicant claimed that the treatment in question exceeded the minimum level of severity required by Article 3. During the entire appeal proceedings, which included twelve court hearings each lasting about four hours, he was kept in a metal cage, which violated his dignity and made him feel inferior. His children, wife, sister, brother and friends were present and saw him in such a state, and seeing the pain of his relatives aggravated his own suffering. He also felt humiliated in the eyes of his adversaries. In particular, when his lawyer requested the court to release him from the cage the court, before deciding on this matter, asked for the opinion of the prosecutor and the victim's representative.", "120. Furthermore, the Government's reference to security considerations was unfounded. In particular, during the entire proceedings at first instance he was not kept in a cage and there was not a single incident recorded between him and the victim. Besides, he was placed in the cage automatically and not upon the victim's request, since this was a measure applied in the Court of Appeal to all defendants who had been placed in detention. The Court of Appeal failed to provide reasons for its decision to keep him in the cage. Moreover, during the entire time he was accompanied by armed servicemen and there was no need to keep him in the cage.", "121. The applicant finally claimed that, by introducing reforms, the Government accepted that cages did not correspond to international standards. The removal of the cages also showed that they were in general not necessary to ensure security. Besides, the Government's statement was not entirely true since cages still remained in some courtrooms outside Yerevan.", "2. The Court's assessment", "(a) Admissibility", "122. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "(b) Merits", "123. The Court reiterates the basic principles established in its case-law concerning the prohibition of ill-treatment under Article 3 (see paragraph 101 and 102 above). It further observes that treatment has been held by the Court to be “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In order for a punishment or treatment associated with it to be “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX).", "124. The Court further reiterates that a measure of restraint does not normally give rise to an issue under Article 3 of the Convention where this measure has been imposed in connection with a lawful detention and does not entail a use of force, or public exposure, exceeding that which is reasonably considered necessary. In this regard it is important to consider, for instance, whether there is a danger that the person concerned might abscond or cause injury or damage (see, among many authorities, Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997-VIII, and Öcalan v. Turkey [GC], no. 46221/99, § 182, ECHR 2005 ‑ IV).", "125. Thus, a violation of Article 3 was found in a case where the applicants, publicly known figures, were placed during a hearing on their detention, which was broadcast live throughout the country, in a barred dock resembling a metal cage and were guarded by special forces wearing black hood-like masks, despite the fact that there was no risk that the applicants might abscond or resort to violence during their transfer to the courthouse or at the hearings (see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 98-102, 27 January 2009). Furthermore, a violation of Article 3 was found in a case where the applicant, who was not a public figure, was unjustifiably handcuffed during public hearings (see Gorodnichev v. Russia, no. 52058/99, §§ 105-109, 24 May 2007). Unjustified placement of an applicant in a cage during public hearings was also considered a factor contributing to a finding of a violation of Article 3 (see Sarban, cited above, §§ 88-90). However, even in the absence of publicity, a given treatment may still be degrading if the victim could be humiliated in his or her own eyes, even if not in the eyes of others (see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; and Ramishvili and Kokhreidze, cited above, §§ 97 and 100). Thus, application of measures of restraint to an applicant in a private setting still gave rise to a violation of Article 3 in a situation where no serious risks to security could be proved to exist (see Henaf v. France, no. 65436/01, §§ 51 and 56, ECHR 2003 ‑ XI).", "126. Turning to the circumstances of the present case, the Court notes that the applicant was kept in a metal cage measuring around 3 sq. m during the entire proceedings before the Court of Appeal. The Court does not share the Government's view that this measure was justified by security considerations. Nor is there any material in the case file to support the Government's position. In particular, contrary to what the Government claim, no specific reasons were given by the Court of Appeal in justifying the necessity of keeping the applicant in the metal cage. Indeed, in refusing the applicant's relevant motion, the Court of Appeal simply made a general reference to security considerations, without providing any detailed reasons as to why the applicant's release from the metal cage would endanger security in the courtroom.", "127. The Court notes that nothing in the applicant's behaviour or personality could have justified such a security measure. During the entire proceedings before the District Court, where no security measures were applied to him, the applicant showed orderly behaviour and no incidents were recorded. Moreover, the applicant had no previous convictions or any record of violent behaviour and was accused of a non-violent crime. Furthermore, it can be inferred from the statements of the prosecutor and the Court of Appeal that the metal cage in the Court of Appeal's courtroom was a permanent installation which served as a dock and that the applicant's placement in it was not necessitated by any real risk of his absconding or resorting to violence but by the simple fact that it was the seat where he, as a defendant in a criminal case, was meant to be seated (see paragraphs 17 and 18 above).", "128. The Court observes that the proceedings before the Court of Appeal lasted from March to May 2004 and at least twelve public hearings were held. The applicant alleged, which the Government did not dispute, that the hearings lasted on average about four hours. During this period the applicant was observed by the public, including his family and friends, in a metal cage. The Court considers that such a harsh appearance of judicial proceedings could lead an average observer to believe that an extremely dangerous criminal was on trial. Furthermore, it agrees with the applicant that such a form of public exposure humiliated him in his own eyes, if not in those of the public, and aroused in him feelings of inferiority. Moreover, such humiliating treatment could easily have had an impact on the applicant's powers of concentration and mental alertness during the proceedings bearing on such an important issue as his criminal liability (see, mutatis mutandis, Ramishvili and Kokhreidze, cited above, § 100).", "129. In the light of the above considerations, the Court concludes that the imposition of such a stringent and humiliating measure on the applicant during the proceedings before the Court of Appeal, which was not justified by any real security risks, amounted to degrading treatment. There has accordingly been a violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION", "130. The applicant complained that the principles of equality of arms and of the presumption of innocence were violated by his placement in a metal cage during the appeal proceedings. He invoked Article 6 §§ 1 and 2 of the Convention, which in so far as relevant, provides:", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... by [a] ... tribunal. ...", "2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”", "A. Admissibility", "131. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties' submissions", "(a) The Government", "132. The Government submitted that Article 6 § 1 spoke about the possibility to participate effectively in a trial and not about the feelings that a person may experience. The applicant's placement in the cage did not in itself violate the principle of equality of arms. The applicant failed to mention any circumstance showing that he was placed in an unequal position vis-à-vis his opponents. In reality he was able to participate effectively in the trial, to submit evidence, to call and examine witnesses, to examine the witnesses against him, to file motions and to communicate without any restrictions with his two lawyers, who were not placed in a cage. In support of their submissions, the Government referred to the case of Auguste v. France (no. 11837/85, Commission Report of 7 June 1990, Decisions and Reports 69, p. 104).", "133. The Government further submitted that the applicant's placement in a metal cage did not in itself violate the principle of the presumption of innocence. Nor did it suggest that the Court of Appeal or the parties and other participants in the proceedings had a preconceived idea about the applicant's guilt or regarded him as a criminal.", "(b) The applicant", "134. The applicant submitted that the principle of equality of arms guaranteed by Article 6 § 1 was violated. In particular, his degrading state and continuous emotional suffering and feeling of shame caused by his placement in the cage before the eyes of the public did not allow him to focus on anything else, suppressed his will and essentially limited his ability to resist. Thus, he was deprived of the possibility to participate effectively in the trial. This was especially important since the Court of Appeal conducted a full examination of the case. The fact that he had a lawyer was not decisive, because he personally had to give evidence, including answering questions from the parties and the court. Furthermore, he did not feel himself to be an equal adversary in his own eyes and from the very beginning of the trial he felt that he was a lost party, especially since the Court of Appeal refused to release him from the cage. His procedural adversaries also felt superior to him.", "135. The applicant further claimed that the principle of presumption of innocence protected a person's right not to be considered a criminal in the eyes of the public until his guilt had been proved. The Court of Appeal should have refrained from any actions which could give the public the impression that he was guilty. However, the Court of Appeal decided to keep him in a metal cage, in spite of the fact that this could actually create such an impression, since persons kept in the cage were commonly identified with serious criminals.", "2. The Court's assessment", "136. The Court reiterates that the principles of equality of arms and of the presumption of innocence are specific elements of the wider concept of a fair trial in criminal proceedings (see Ekbatani v. Sweden, 26 May 1988, § 30, Series A no. 134, and Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35). The former principle implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274), while the latter principle will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty (see Minelli v. Switzerland, 25 March 1983, §§ 27 and 37, Series A no. 62).", "137. The Court notes that, in a case concerning the appearance of an accused before a criminal court in a “glass cage”, no violation of the right to a fair trial or of the presumption of innocence was found by the Commission. In that case the Commission noted that this was a permanent security measure used for other criminal cases, that the accused was able to communicate confidentially with his lawyer, that he was able to communicate with the court and that he was not in an unfavourable position in relation to the prosecution or the jury (see Auguste, cited above). The Commission came to a similar conclusion in a case where an accused appeared before the court on a stretcher (see Meerbrey v. Germany (dec.), no. 37998/97, Commission Decision of 12 January 1998, unreported).", "138. In the present case, the Court admits that, as already indicated above, the applicant's placement in a metal cage could have had an impact on his powers of concentration and mental alertness. It notes, however, that the applicant benefited from the assistance of two lawyers. Nothing suggests that the applicant's placement in a metal cage made it impossible for him to communicate confidentially and freely with his lawyers or to communicate freely with the court. The applicant himself did not make such allegations either. The applicant was therefore able to defend his case effectively and it cannot be said that the security measure in question placed him at a substantial disadvantage vis-à-vis the prosecution or the civil plaintiff. Furthermore, as already indicated above, the metal cage was a permanent security measure used for all criminal cases examined in the Criminal and Military Court of Appeal. Therefore, the imposition of this measure does not suggest that the Court of Appeal regarded the applicant as guilty.", "139. The Court undoubtedly disapproves the use of such an indiscriminate and humiliating security measure in respect of the applicant, which it has found to be unacceptable in the light of the requirements of Article 3 of the Convention. Nevertheless, it cannot be said that the principles of equality of arms or of the presumption of innocence as guaranteed by Article 6 §§ 1 and 2 of the Convention were violated.", "140. Accordingly, there has been no violation of Article 6 §§ 1 and 2 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE CONVENTION", "141. The applicant complained that the law failed to ensure equality between the parties in the matter of calling witnesses since, according to Article 271 of the Code of Criminal Procedure (“CCP”), the prosecution was free to choose the witnesses it wished to call without any prior leave by the court, while the defence was obliged to seek such leave. The applicant further complained that the Court of Appeal rejected his request to call witnesses K.S. and S.H. He invoked Article 6 § 3 (d) of the Convention, which in so far as relevant, provides:", "“3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(d) ... to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”", "Admissibility", "1. Equality under the law", "(a) The parties' submissions", "142. The Government submitted that the applicant's interpretation of the relevant provisions of the CCP was erroneous. In reality, the prosecution did not enjoy any advantage in the disputed matter. In particular, Article 271 § 1 of the CCP did not impose an obligation on the courts to call all the witnesses on the prosecution's list. Furthermore, it was not true that only the attendance of witnesses proposed by the defence but not the prosecution required the court's leave: both the indictment and motions filed during the proceedings were to be examined by the courts pursuant to the procedure prescribed by Articles 102, 331 and 391 of the CCP and the courts were free to decide whether or not to call a particular witness.", "143. The applicant submitted that there was no equality guaranteed under the law between the parties in the matter of calling witnesses. In particular, Article 271 § 1 of the CCP obliged the courts to summon all the persons mentioned in the prosecution's list of witnesses which was annexed to the indictment. The prosecutor did not have to file a motion seeking leave to call these persons and the question of whether they had to be called was not a matter of consideration by the court. On the other hand, if the defence wanted to call witnesses, it had to seek the court's leave, which put the defence on an unequal footing with the prosecution. Article 331 of the CCP invoked by the Government spoke about “new” evidence and it was true that, as far as the calling of “additional” witnesses was concerned, the domestic law created equal opportunities for both parties. However, as far as the evidence gathered during the investigation was concerned, including the testimonies of witnesses mentioned in the annex to the indictment, this evidence was subject to examination in court by all means. There has never been a single case in which the courts considered the matter of calling or not calling the persons indicated in the prosecution's list.", "(b) The Court's assessment", "144. The Court reiterates that Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused's behalf. Its essential aim, as indicated by the words “under the same conditions”, is a full “equality of arms” in the matter (see Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22; Bönisch v. Austria, 6 May 1985, § 32, Series A no. 92; and Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235 ‑ B).", "145. In the present case, the applicant argued that the prosecution was, by virtue of the law, in a more advantageous position because it was entitled to submit a list of witnesses whom the courts were obliged to call, while the defence on each and every occasion had to ask for the court's leave.", "146. The Court observes that, pursuant to Article 271 § 1 of the CCP, the prosecution is entitled to submit to the court a list of persons subject to be called to court, which features as an annex to the indictment. This list includes the persons who were questioned as witnesses during the investigation in connection with the criminal proceedings. It is true that Article 271 § 1 literally states “a list of persons subject to be called to court” (emphasis added). However, this does not imply that the courts are obliged to call all the witnesses on that list. Nor is there any other provision in the CCP which would impose such an obligation on the courts.", "147. Furthermore, contrary to what the applicant claims, the court does consider the question of whether or not to call the witnesses on the prosecution's list when, pursuant to Article 293 § 2 of the CCP, it decides to set the case down for trial. Thus, it cannot be said that all the witnesses on the prosecution's list are automatically called to court. This question lies within the court's discretion, as does the question of calling witnesses on behalf of the defence. In such circumstances, the Court concludes that the Armenian criminal procedure law in itself does not fail to ensure equality between the prosecution and the defence in the matter of calling witnesses.", "148. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "2. The refusal to call witnesses K.S. and S.H.", "149. The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003 ‑ V). The national courts enjoy a margin of appreciation allowing them, with respect for the Convention requirements, to establish whether the hearing of witnesses for the defence is likely to be of assistance in discovering the truth and, if not, to decide against the calling of such witnesses (see Payot and Petit v. Switzerland, Commission decision of 2 September 1991, unreported). As already indicated above, Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused's behalf (see Vidal, cited above, § 33).", "150. In the present case, the applicant complained about the Court of Appeal's refusal to call two witnesses, accountants K.S. and S.H. The Court notes, however, that accountant K.S. had already been called and examined in the District Court (see paragraphs 14 and 20 above). Therefore, it does not find the Court of Appeal's refusal to call additionally that witness unreasonable. As regards accountant S.H., the Court of Appeal justified its refusal with the fact that it was unnecessary to call her in this particular case. The Court does not consider that, in doing so, the Court of Appeal overstepped its margin of appreciation or acted arbitrarily, taking into account that the applicant's conviction was based on numerous pieces of evidence presented and examined in court, including two court-ordered accounting expert opinions and the statements of the relevant accounting experts and accountant K.S (see paragraph 14 above).", "151. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "152. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "153. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. He further argued that as a result of a trial conducted in breach of the guarantees of Article 6 of the Convention he was ordered to pay damages to the victim in the amount of AMD 23,063,108 and USD 119,000. Furthermore, because of his deprivation of liberty he lost earnings for the period between May 2003 and April 2007 in the amount of EUR 36,000. The applicant claimed these amounts in respect of pecuniary damage.", "154. The Government claimed that the applicant failed to produce any evidence to substantiate the non-pecuniary damage allegedly suffered by him. Furthermore, there was no causal link between the violations alleged and the pecuniary damage claimed. Besides, his claims that the alleged breaches of Article 6 led to his wrongful conviction and resulted in lost earnings were of a speculative nature.", "155. The Court notes that the applicant's deprivation of liberty prior to his conviction was not the object of the present application. There is therefore no causal link between the violations found and the applicant's claim for lost earnings for that period. Furthermore, as regards the applicant's claim for pecuniary damage resulting from a breach of the guarantees of Article 6, the Court observes that the applicant's complaints under that provision were rejected. It therefore dismisses the applicant's claims for pecuniary damage. On the other hand, the Court considers that the applicant has undeniably suffered non-pecuniary damage as a result of the violations found. Ruling on an equitable basis, it awards the applicant EUR 16,000 in respect of non-pecuniary damage, to be paid to the applicant's daughter, Ms Arusyak Harutyunyan.", "B. Costs and expenses", "156. The applicant did not claim any costs and expenses. Accordingly, no award is made under this head.", "C. Default interest", "157. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1977 and lives in Bucharest.", "7. On 17 September 2002 the Prahova County Court sentenced the applicant to 12 years and 6 months ’ imprisonment. The decision became final on 18 February 2004 with the decision of the High Court of Cassation and Justice.", "8. The applicant was arrested on 24 January 2002. He remained in prison until his release on probation on 18 May 2011. He served his sentence as follows:", "- from 24 January to 1 February 2002 in Ploieşti Prison;", "- from 1 to 26 February 2002 in Jilava Prison Hospital;", "- from 26 February 2002 to 7 January 2003 in Ploieşti Prison;", "- from 7 January 2003 to 20 March 2003 in Mărgineni Prison;", "- from 20 March 2003 to 29 February 2004 in Jilava Prison;", "- from 29 February 2004 to 11 February 2005 in Ploieşti Prison;", "- from 11 February to 21 February 2005 in Jilava Prison;", "- from 21 February to 3 March 2005 in Ploieşti Prison;", "- from 3 March to 25 April 2005 in Jilava Prison Hospital;", "- from 25 April to 8 July 2005 in Jilava Prison;", "- from 8 July to 18 July 2005 in Rahova Prison;", "- from 18 July to 21 July 2005 in Ploieşti Prison;", "- from 21 July to 29 August 2005 in Rahova Prison;", "- from 29 August to 27 September 2005 in Ploieşti Prison;", "- from 27 September to 3 October 2005 in Rahova Prison;", "- from 3 October to 22 November 2005 in Ploieşti Prison;", "- from 22 November to 28 November 2005 in Rahova Prison;", "- from 28 November 2005 to 7 February 2006 in Ploieşti Prison;", "- from 7 February to 13 March 2006 in Jilava Prison Hospital;", "- from 13 March to 9 May 2006 in Ploieşti Prison;", "- from 9 May to 15 May 2006 in Rahova Prison;", "- from 15 May 2006 to 11 January 2007 in Ploieşti Prison;", "- from 11 January 2007 to 12 January 2007 in Rahova Prison Hospital;", "- from 12 January to 2 March 2007 in Jilava Prison;", "- from 2 March to 19 June 2007 in Rahova Prison;", "- from 19 June 2007 to 19 July 2007 in Jilava Prison Hospital;", "- from 19 July to 27 September 2007 in Rahova Prison;", "- from 27 September to 12 October 2007 in Ploieşti Prison;", "- from 12 October 2007 to 11 November 2008 in Rahova Prison;", "- from 11 November 2008 to 14 November 2008 in Ploieşti Prison;", "- from 14 November to 4 December 2 008 in Rahova Prison;", "- from 4 December 2008 to 11 May 2010 in Jilava Prison;", "- from 1 1 May to 28 May 2010 in Bacău Prison;", "- from 28 May to 21 June 2010 in Craiova Prison;", "- from 21 June to 5 July 2010 in Colibaşi Prison;", "- from 5 July 2010 to 13 July 20 10 in Craiova Prison;", "- from 13 July 2010 to 18 May 2011 in Jilava and Ploieşti Prison.", "A. Conditions of the applicant ’ s detention", "9. The exact circumstances of the applicant ’ s detention are in dispute between the parties.", "1. The applicant ’ s account", "10. In respect of all the establishments in which he had been detained, the applicant alleged that he had been kept in overcrowded cells, in poor conditions of hygiene, that the food had been poor, and that he did not enjoy enough out - of - cell time and appropriate activities.", "11. He also referred to the information provided in the CPT and APADOR-CH reports and to the conditions of detention already established by the Court in its previous judgments with respect to each of the detention facilities where he was detained, alleging that he had experienced the same conditions.", "( a ) Ploieşti Prison", "12. The material conditions in Ploieşti Prison throughout the periods when he was detained there between 24 January 2002 and 1 4 November 200 8, were described by the applicant as follows.", "13. The cells were overcrowded and he often had to share an 80 cm wide bed with another inmate. He shared cells equipped with 15 to 24 beds with 20 to 45 detainees: in cell no. 15 (formerly no. 9) there were 24 beds for 42 inmates; in cell no. 31 (formerly no. 22) there were 30 beds for 54 inmates; in cell no. 24 (formerly no. 15) there were 24 beds for 38 inmates; and in cell no. 22 (formerly no. 13) there were 21 beds for 37 inmates.", "The above information makes it possible to calculate the personal space available to each detainee and is consistent with the information submitted by the Government and the National Prison Administration (“NPA”) and with the CPT reports on the surface of cells and the occupancy rate. For instance, in May 2005 there were 774 detainees in Ploieşti Prison, whereas the legal capacity of the prison was 566 places. In terms of the minimum space of 4 square metres per person recommended by the CPT, the prison should have housed no more than 220 inmates. The applicant referred to the CPT ’ s findings that the main problem of Ploieşti Prison was overcrowding, with no more than 2 square metres of personal space per detainee.", "14. There were only bunk beds, and the top bed was 2 metres high. There were no tables in the cells and there was no dining room, so detainees had their meals and other activities (writing, playing chess, and so on ) in bed. Cells had only one window, which was 180 cm wide and 120 cm high.", "15. Cells were infested with insects, and the bed linen was unclean and lice-infested.", "16. There were only one or two sinks to a cell, providing cold water only.", "17. Access to communal showers with hot water was allowed only once a week.", "18. The applicant alleged a lack of activities outside the cell during his stay in Ploieşti Prison. He referred also to the CPT findings that the lack of daily activities in that prison was another major problem.", "( b ) Mărgineni Prison", "19. The applicant alleged that the cells in Mărgineni Prison were overcrowded too, so he had to share a bed with another inmate. In the cell he occupied, no. 56, there were 36 beds for 68 inmates.", "The sinks in the cell did not have hot water and there were 2 toilets for all 68 prisoners.", "( c ) Bucharest-Rahova Prison and its Hospital", "20. The material conditions in Rahova Prison and its Hospital throughout his detention there between 2005 and December 2008, were described by the applicant as follows.", "21. There was overcrowding in Rahova Prison and detainees had some 2.77 square metres per person.", "22. There were no chairs in the cell, and the metal bunk beds were designed so that detainees were not able to sit up straight on the lower bed.", "23. Lavatories in the cells had deteriorated ceilings and walls and hot water was available only once a week for one hour.", "24. Moreover, during an unspecified period in the summer of 2005 the water was cut off between 9 a.m. and 1 p.m. and between 4 p.m. and 6 p.m. , a situation due, according to a statement made by the head of logistics at Rahova Prison, to a general water shortage.", "25. As a result of these conditions, the applicant was unable to maintain a proper standard of corporal hygiene.", "( d ) Bucharest-Jilava Prison and its hospital", "26. The material conditions which the applicant experienced during his periods of detention in Jilava Prison and its hospital from 200 3 until his release in 20 1 1 were described by the applicant as follows.", "27. Overcrowding was general and severe throughout the prison and the personal space per detainee was extremely limited : cells with a surface of 13 square metres were accommodating 8 prisoners, and cells with a surface of 20 to 25 square metres housed 35 to 40 prisoners. There were several rows of bunk beds. The applicant often had to share a bed with another inmate; in cell no. 215, for instance, there were 30 beds for 45 inmates, and in cell no. 206 there were 21 beds for 30 inmates.", "28. The above information makes it possible to calculate the personal space available to each detainee and is consistent with the information submitted by the Government and the National Prison Administration (“NPA”) on the surface of cells and the occupancy rate. Between 2007 and 2010 the personal space available to detainees, according to the monthly information recorded in the official registers, varied from 1.21 square metres in April 2007 to 2.43 square metres in March 2008 and 2.34 square metres from February to May 2010. During all these years, only in February 2008 did the applicant have personal space exceeding 4 square metres, that is, 4.55 square metres, to be precise.", "29. The sanitary facilities were poor, the toilets had no water supply and the sinks in the cells had no hot water.", "30. Cells were often dirty and the bed linen was old, worn and often unclean.", "31. Sanitary conditions were very poor, there were cockroaches, rats, lice and bedbugs in the prison; the applicant was even bitten by a rat in August 2009, for which he was given a vaccination.", "32. There were hardly any out - of - cell activities.", "2. The Government ’ s account", "33. The Government submitted more than 2,000 pages with general information on the legal framework and conditions of detention in prisons in Romania, and part of the applicant ’ s administrative file in detention.", "34. With regard to overcrowding, they submitted that the overcrowding problem had been solved in 2004, save in Ploieşti Prison, where it had been solved only in 2006. The Government provided information submitted by the NPA concerning the number of beds available in each prison and the number of detainees accommodated each year. It shows that in the prisons of Jilava, Rahova and Mărgineni, the number of beds has exceeded the number of prisoners since 2004. In Ploieşti Prison the number of beds has exceeded the number of detainees since 2006.", "35. The Government submitted nonetheless that it was not always possible to determine the precise cells where the applicant had been detained, as prison records were regularly destroyed after a certain time.", "36. Detainees were responsible for cleaning the cells and were accordingly provided with the necessary cleaning products. The other parts of the prisons were cleaned twice a day or whenever necessary, specialised companies were in charge of disinfesting the premises every four months or whenever necessary and the bed sheets were changed once a week.", "37. It was the legal right of detainees to be provided with the necessary products for their personal hygiene.", "38. Between 2006 and 2009 substantial investments were made to modernise the prisons. In each prison there was a committee in charge of supervising the condition of the buildings and cells and ordering repairs whenever necessary. These committees functioned or function according to orders nos. 10306/1997, 82957/1998 and 434/2006 of the General Directorate of Prisons (GDP) within the Ministry of Justice, and order no. 328/2010 of the Director General of the Prisons Directorate.", "39. As a result of the entry into force of Law no. 275/2006, the domestic legislation concerning detention facilities now complied with CPT recommendations on lighting, heating, ventilation, sanitary installations and furniture in prisons.", "40. In all prisons the quality of drinking water was checked regularly, as required by Law no. 458/2002, Government Decision no. 974/2004 and Order no. 3149/2003 of the GDP ’ s Director General. Cut-offs were purely accidental or limited in time. As for the food, the quantity and quality were set according to the categories of detainees, as prescribed by Order no. 2713/C/2001 of the Minister of Justice.", "For an ordinary, male, non- working detainee, the standard was set by “Norm no. 1 7 ” at 2,855 calories per day, from a diet consisting of starch, pork meat, vegetables of the Apiaceae family, biscuits, tinned vegetables, margarine, oil, marmalade, 20 grams of salted cheese, onion and garlic, sugar and various spices. Other kinds of meat, fresh vegetables and dairy products, as well as eggs and fruit, dried or fresh, were reserved for particular categories of detainees, such as pregnant women and their babies and sick detainees during their stay in a hospital.", "41. Before the adoption of Law no. 275/2006, prisoners were entitled to at least one shower per week and they could have their bed sheets changed once every fortnight.", "Law no. 275/2006 improved this situation, providing for detainees to have a shower at least twice a week and, since all prisons now had a laundry service, bed sheets were changed weekly.", "42. All prisons had a central heating system and cells were heated in winter with warmers. The Minister of Justice ’ s Order no. 2874/C/1999 laid down clear rules regulating the heating of prisons according to their geographical location. In summer, according to an order of the GDP ’ s Director General, cell doors had to be kept open and sustained efforts were made to allow detainees to spend as much time outside the cell as possible.", "43. The Government made specific submissions in respect of the following detention facilities in which the applicant was detained :", "(a) Ploieşti Prison", "44. The Government had no information concerning the dimensions of the cells, the number of beds and the available space.", "45. There was no refectory room in Ploieşti Prison, so prisoners had their meals in their cells, where tables were part of the furniture.", "46. Air circulation was possible through the cell windows.", "47. Each cell had two sinks with cold water. Before 2006, prisoners were allowed to shower once a week. After the entry into force of Law no. 275/2006, they were entitled to two showers a week.", "48. As to outside activities, before 2006 the applicant was entitled to a daily one - hour walk. Law no. 275/2006 increased the duration of the daily walk, and the new norm depended on the detention regime (open, semi-open and closed).", "Moreover, the applicant had taken part in many out-of-cell activities which, before Law no. 275/2006 entered into force, were available every day to detainees in each cell. After 2006, only prisoners with an open or semi-open regime were entitled to daily activities.", "49. As regards the severe overcrowding in Ploieşti Prison, the Director of National Prison Administration had taken effective measures in January 2006 to diminish the number of prisoners admitted to prison.", "(b) Mărgineni Prison", "50. The Government had no information concerning the dimensions of the cells, the number of beds and the available space.", "51. Cells contained beds, a table, a bench, a coat hanger, a stand for a TV set and a TV set.", "52. A sanitary annex was equipped with sinks, shower, and toilets.", "53. Each cell and sanitary annex had windows, which let in air and natural light.", "54. Detention cell no. 56, where the applicant alleged that he had been detained, had 18 beds and 16 prisoners.", "(c) Bucharest-Rahova Prison", "55. The number of detainees did not exceed the number of beds. The cell, with a surface of 21 square metres and a window measuring 1. 44 square metres, contained three beds, a table, a bench, a coat hanger and a stand for a TV set. A 1. 2 square meters store room with a 0.72 square meters window was attached to the cell.", "56. A sanitary annex measuring 6.45 square metres was attached to the cell, equipped with two sinks, one shower, a toilet, and a window measuring 0.72 square metres.", "57. In winter, the cells were heated to 18 degrees. Hot and cold water was available permanently. Until 2006, detainees were allowed to use the shower weekly, and thereafter twice a week. However, in summer, to save money, there were restrictions on the use of cold water.", "58. The applicant was involved in many activities outside the cell, such as building wooden ships (from December 2007 to November 2008), writing articles for two prison newspapers, attending religious activities ( from April 2007 to November 2008) and a special programme to prevent HIV infection and the consumption of illicit drugs, and he frequently used the prison library.", "59. The applicant also received psychological assistance for his problems.", "(d) Bucharest-Jilava Prison and its Hospital", "60. The prison records indicating the cells occupied by the applicant from 2003 to 2006 had been destroyed.", "61. In 2007 and 2008 the applicant had occupied cells no. 206, which measured 32.76 square metres, and no. 618, measuring 36.45 square metres. Between 11 and 30 persons had been held with him at a time.", "62. In 2008 and 2009 the applicant had occupied cell no. 514, measuring 43.65 square metres. Between 8 and 22 persons had been held with him at a time, although no exact details were available.", "63. The applicant had also occupied the following cells in 2009 and 2010:", "- nos. 102 and 104, each measuring 32.90 square metres and shared with 14 other persons;", "- no. 214, measuring 40.28 square metres, with 20 other persons;", "- no. 302, measuring 29.14 square metres, with 15 to 17 other persons;", "- no. 106, measuring 33.18 square metres, with 14 other persons;", "- no. 105, measuring 33.84 square metres, with 14 other persons;", "- no. 104, measuring 32.76 square metres, with 14 other persons.", "64. All the cells had good air circulation and natural light coming from three windows, in the cell, the sanitary group and the store room.", "65. Sanitary groups in the cells were disinfected every day, cells were whitewashed whenever necessary, and rat extermination and treatment with insecticide were carried out at least once every three weeks.", "66. Detainees were allowed to use the showers twice a week, on Mondays and Fridays.", "Cold water was available permanently, and in 2007 a water purification system was introduced for drinking water.", "67. As for outside activities, before 2006 the applicant was entitled to a daily 30 minute walk. Law no. 275/2006 increased that to three hours a day.", "Moreover, the applicant took part in many out -of-cell activities, such as sanitary, legal, moral and religious activities. He was also free to participate in activities focusing on family life and the prevention of HIV infection, sports and intellectual competitions, and maintaining a pro- active attitude to social activities.", "B. Health-care", "68. Both the applicant and the respondent Government relied mainly on documents from the applicant ’ s prison medical file. They each interpreted the information in the documents differently, however.", "1. The applicant ’ s account", "69. The applicant alleged that while in detention he had developed various diseases as a result of the poor conditions. He alleged a lack of adequate treatment by the prison doctor and a lack of medicines.", "70. The applicant ’ s medical record drawn up when he was placed in detention on 25 January 2002 made no reference to any disease save for hepatitis which he had developed six years earlier.", "71. The applicant claimed that from 2002 he developed numerous dental problems, which became very serious for lack of proper treatment and monitoring.", "72. On 2 5 October 2002 the applicant was seen by a prison dentist, who diagnosed an abscess.", "He claimed that in November-December 2003 he had had several teeth extracted, but this was not recorded in his medical file.", "73. From January 2004, while in Ploieşti Prison, the applicant was issued with a series of medical records which referred to his dental health.", "In January 2004, for example, he received medical treatment with antibiotics and pain killers for toothache and regular headaches.", "On 13 May 2004, in reply to his request to see a dentist, the applicant was informed by the Ploieşti Prison that the prison dentist was on maternity leave. As a consequence, only emergencies were taken to the Ploieşti Hospital Dental Emergency Service. His case was not an emergency.", "On 25 August 2004, the Ploieşti Prison informed the NPA that the applicant had personality disorders and problems affecting his nose, but that he did not have any dental problems requiring emergency treatment.", "74. On 3 December 2004 he was diagnosed with occipital neuralgia ( Arnold ’ s neuralgia), for which treatment was recommended.", "75. Between 2004 and 2006 the applicant sent numerous letters to the NPA about his dental problems.", "76. On 13 May and 26 August 2004 the NPA informed the applicant by letter that Ploieşti Prison had no dentist and that he would be sent to see the dentist at Târgşor Prison for urgent dental treatment only. The applicant was never sent to Târgşor Prison for dental treatment.", "77. On 28 October 2004, the applicant having requested a stay of execution of his sentence on health grounds, an official medical report issued by Prahova Department of Pathology diagnosed the applicant as having occipital neuralgia which could be treated within the prison system. No treatment was prescribed for his neuralgia and no mention was made of his dental problems.", "78. On 25 January 2005 the applicant was informed by the NPA that he had been diagnosed with “partial edentulism ” (loss of teeth) and that the dental prosthesis he had been recommended could be manufactured within the prison dentistry system, but only when he could afford to pay for it.", "79. On 24 March 2005 the partial edentulism diagnosis was confirmed by the Jilava Bucharest Prison Hospital, which also diagnosed chronic periodontitis and recommended further dental extraction. On 20 April 2005 the applicant was hospitalised because of his frontal and lateral edentulism and a tooth was extracted; further monitoring was recommended.", "80. The applicant ’ s medical record indicated chronic periodontitis on the following dates: 22, 25 and 28 November 2005, 19 June, 19 July, 27 September, and 12 October 2007, and 13 November and 4 December 2008, but there is no mention of any treatment prescribed for this ailment.", "81. In 2005 the applicant complained on numerous occasions ( in June, July, October and December) that he was not receiving appropriate medical treatment. In reply, based on information provided by the Ploieşti Prison, the NPA informed him that he was receiving appropriate treatment.", "82. On 19 September and 8 November 2005 the applicant submitted the same complaint to the Ministry of Justice. He provided details of his condition (a swollen neck and clearly visible injuries on his neck, sharp pains in the ears and blood in his saliva), and indicated that he had not been seen by a doctor.", "83. The applicant was hospitalised in Jilava Prison Hospital from 7 February to 13 March 2006 and was treated with antibiotics and pain killers. A medical letter of 13 March 2006 indicated that the applicant was suffering from multiple and complicated dental caries, chronic generalised periodontitis requiring treatment, frontal edentulism, neuralgia of the superior laryngeal nerve, nasal septal deviation, chronic rhinitis and occipital neuralgia requiring treatment. Special diet, antibiotics and treatment of the applicant ’ s dental problems were further recommended.", "84. On 23 March 2006 the NPA confirmed that the applicant had swollen glands and nodules in the mouth, but denied any link between these symptoms and the applicant ’ s dental problems, alleging that the latter had been treated.", "85. The applicant had several teeth extracted between March 2006 and November 2008.", "86. A medical report of 14 June 2007 indicated that the applicant was suffering from chronic periodontitis. No treatment was prescribed.", "87. On 1 September 2008 the applicant was able to consult a neurologist, who found that his migraine had worsened in terms of intensity and frequency.", "88. On 17 October 2008 the applicant was examined at the Rahova Hospital where he was diagnosed with chronic pharyngitis and dental radicular remains.", "89. The applicant ’ s medical record in Rahova Prison mentioned migraine on 4 December 2008; no treatment was mentioned.", "90. On 13 May 2010 the applicant ’ s medical file indicated that the applicant had lost 12 teeth and that little remained of two other teeth.", "91. Between 21 June and 1 July 2010 the applicant was hospitalised at the Colibaşi Prison Hospital, where he was diagnosed with duodenal ulcer, chronic hepatitis, chronic migraine, biliary dyskinesia and urinary tract infection. He was not examined by the dentist, who was on leave.", "92. On 2 July 2010 the administration of Rahova Prison indicated in a letter to the Romanian Government that the applicant was not known to have any chronic diseases.", "93. On 12 July 2010, while in Craiova Prison, the applicant demanded proper treatment for his dental problems, including dentures, and said that he was ready to bear the cost of the treatment.", "94. On 19 July 2010 NPA informed the applicant, in reply to his renewed request for a dental prosthesis that he had to pay 40 % of its price.", "95. In August 2010 the applicant reiterated his request for urgent treatment and informed the authorities that he was finally in a position to pay the necessary costs.", "96. On 11 October 2010 he was allowed to start the treatment for his dental problems at his own expense in the private practice of Dr E.M. in the city of Ploieşti, with appointments and treatment (including a prosthesis ) on 11, 15, 20 and 26 October 2 010, 3, 19, 23 and 29 November 2010, 3, 8 and 17 December 2010, and 5, 18 and 24 January 2011. During the appointments he was under prison escort. The medical findings and the treatment prescribed were recorded in health reports which were included in his prison medical file.", "The applicant submitted to the Court a copy of the medical report following his first appointment, on 11 October 2010, from which it appears that he had caries and needed a prosthesis.", "97. By May 2011 the applicant had lost 14 teeth.", "2. The Government ’ s account", "98. The Government submitted that while in Ploieşti Prison the applicant was diagnosed with tooth abscesses, partial edentulism, gum inflammation and chronic periodontitis.", "99. He was examined, diagnosed and/ or underwent treatment as follows :", "- tooth abscesses, on 16, 17, 18 and 19 August 2002, on 9 and 15 January 2004 and on 20 December 2005;", "- tooth pain, facial and tooth neuralgia, on 11 April, 4 August, 1 September, 13 October and 3 November 2004;", "- periodontal inflammation, on 20 April 2005;", "- chronic periodontitis, on 13 May 2005 and 2 May and 16 June 2006;", "- tooth extraction, on 28 January 2006;", "- vital dental pulp extirpation, on 1 2 June 2006; and", "- coronary obturation of one root canal, on 22 September 2006.", "100. For all these problems he received appropriate treatment with antibiotics, vitamins, anti-inflammatory drugs and pain killers.", "101. While in Rahova Prison, the applicant was examined and diagnosed with periodontal abscess on 16 March 2007 and with vestibular abscess on 26 March 2007, for which he received antibiotic treatment.", "He also underwent the following surgery: two vital dental pulp extirpations on 12 June 2006, coronary obturation on 22 September 2006, root canal obturation on 29 March 2007, as well as two dental extractions, on 14 November 2007 and 29 January 2008.", "102. On 6 July 2007 the applicant was taken to the Dental Surgery Clinic in Bucharest, where no disease “ requiring emergency surgery ” was detected.", "103. The Government submitted a letter of 15 February 2011 from the Director of the Medical Directorate of the NPA, in which the Director indicated that, upon examination of the applicant ’ s prison medical file, it appeared that the applicant had received treatment for his dental problems from 9 January 2004 until 7 October 2010. He admitted that it did not emerge from that file that any therapy plan had been conceived in respect of the applicant ’ s dental problems. Lastly, the letter indicated that from 13 October 2010 the applicant had been consulting a private dentist in Ploieşti to have a prosthesis made.", "104. Lastly, the Government submitted an undated medical record concerning the applicant from which it appears that he was provided with an estimate of the costs of a dental prosthesis by the private practice of Dr E.M., where he had been treated between October 2010 and January 2011 (see paragraph 96 above ).", "C. The applicant ’ s domestic complaints concerning the material conditions of detention", "105. In 2004 and 200 6 the applicant made numerous complaints on the basis of Government Ordinance no. 56/2003 (see paragraph 115 below) concerning the poor conditions of his detention, including the lack of beds and living space, and inadequate medical treatment.", "106. For instance, on 4 June 2004 the applicant lodged a complaint with the Ploieşti Court of First Instance, complaining of overcrowding, a poor diet and lack of appropriate medical care.", "This complaint was eventually dismissed by a final judgment of Prahova County Court on 12 August 2004, which found that “the conditions of detention complained of exist in all prisons and cannot therefore be considered as an action or a failure imputable to the prison administration and therefore contrary to the legal provisions”.", "107. Following the entry into force of Law no. 275/2006 on the execution of sentences (see paragraph 116 below), the applicant lodged a complaint with the delegate judge concerning the conditions of his detention, and in particular, poor hygiene, lack of personal space, lack of dental examinations and appropriate medical treatment in general, and inappropriate and insufficient food.", "108. On 26 January 2009 the delegate judge dismissed the complaint on the grounds that the conditions of detention in Jilava Prison were not contrary to the requirements of either the domestic law or the Council of Europe ’ s instruments, that Jilava Prison had not had a dentist since 2007 and that therefore detainees were taken for consultation in limited numbers to Prahova Prison, and that in any event, about 80% of the prison population in Romania had dental problems. The applicant was also informed that he would be taken to see a dentist at Rahova Prison on 29 January 2009.", "The applicant ’ s appeal against this decision was dismissed on 23 March 2009.", "D. Proceedings for a stay of execution", "109. On the basis of Article 455 of the Code of Criminal Procedure, in conjunction with Article 453 c ), the applicant made several requests for a stay of execution of his sentence, in order to work and earn the money he needed for his family and to afford proper medical treatment for himself.", "110. His request made in 2004 was eventually dismissed by the Ploieşti Court of Appeal on 16 June 200 4, despite a favourable recommendation by the Welfare Department of Ploieşti City Council.", "Another request, made in 2006, was dismissed on 15 November 2006 by the Ploieşti Court of Appeal, and a request made in 2007 was eventually dismissed by the Bucharest Court of First Instance on 12 December 2007.", "E. Criminal complaints against a prison doctor", "111. The applicant also lodged a criminal complaint against A.R., the general practitioner at Ploieşti Prison, alleging that he was left without appropriate medical care for his various ailments, such as dental and eye diseases, headaches, stomach ulcer, sinusitis and cervical spinal cord compression.", "112. On 13 October 2004 the military prosecutor in charge of the investigation took a statement from the doctor, who declared that the applicant had no chronic or acute disease that required emergency treatment. The same day, the prosecutor decided not to open proceedings against the doctor. The applicant ’ s appeal against that decision was dismissed on 18 February 2005 by a higher-ranking prosecutor as having been lodged out of time.", "The applicant lodged a complaint against the prosecutors ’ decisions with the Bucharest Military Court, which dismissed it on 12 April 2005. This decision was upheld by the Military Court of Appeal ( Tribunalul Militar Teritorial ) on 26 May 2005.", "I. Basic principles", "1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only, where the seriousness of the offence would make any other sanction or measure clearly inadequate.", "2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity...", "II. Coping with a shortage of prison places", "6. In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set.", "7. Where conditions of overcrowding occur, special emphasis should be placed on the precepts of human dignity, the commitment of prison administrations to apply humane and positive treatment, the full recognition of staff roles and effective modern management approaches. In conformity with the European Prison Rules, particular attention should be paid to the amount of space available to prisoners, to hygiene and sanitation, to the provision of sufficient and suitably prepared and presented food, to prisoners ’ health care and to the opportunity for outdoor exercise.", "8. In order to counteract some of the negative consequences of prison overcrowding, contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made... ”", "124. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules lay down the following relevant guidelines:", "“1. All persons deprived of their liberty shall be treated with respect for their human rights.", "2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.", "3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.", "4. Prison conditions that infringe prisoners ’ human rights are not justified by lack of resources.", "...", "10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. ”", "Allocation and accommodation", "“18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.", "18.2. In all buildings where prisoners are required to live, work or congregate:", "a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;", "b. artificial light shall satisfy recognised technical standards; and", "c. there shall be an alarm system that enables prisoners to contact the staff without delay.", "18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.", "18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation.", "19.3. Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.", "19.4. Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.", "22.1. Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.", "22.4. There shall be three meals a day with reasonable intervals between them.", "22.5. Clean drinking water shall be available to prisoners at all times.", "27.1. Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.", "27.2. When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise. ”", "Organisation of prison health care", "“40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.", "40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.", "40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.", "40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.", "40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.", "Medical and health care personnel", "41.1 Every prison shall have the services of at least one qualified general medical practitioner.", "41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.", "41.3 Where prisons do not have a full-time medical practitioner, a part-time medical practitioner shall visit regularly.", "41.4 Every prison shall have personnel suitably trained in health care.", "41.5 The services of qualified dentists and opticians shall be available to every prisoner.", "Duties of the medical practitioner", "42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.", "42.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall examine the prisoner if requested at release, and shall otherwise examine prisoners whenever necessary.", "42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:", "a. observing the normal rules of medical confidentiality;", "b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;", "c. recording and reporting to the relevant authorities any sign or indication that prisoners may have been treated violently;", "d. dealing with withdrawal symptoms resulting from use of drugs, medication or alcohol;", "e. identifying any psychological or other stress brought on by the fact of deprivation of liberty;", "f. isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment;", "g. ensuring that prisoners carrying the HIV virus are not isolated for that reason alone;", "h. noting physical or mental defects that might impede resettlement after release;", "i. determining the fitness of each prisoner to work and to exercise; and", "j. making arrangements with community agencies for the continuation of any necessary medical and psychiatric treatment after release, if prisoners give their consent to such arrangements.", "43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.", "43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff.", "43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner ’ s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement.", "44. The medical practitioner or other competent authority shall regularly inspect, collect information by other means if appropriate, and advise the director upon:", "a. the quantity, quality, preparation and serving of food and water;", "b. the hygiene and cleanliness of the institution and prisoners;", "c. the sanitation, heating, lighting and ventilation of the institution; and", "d. the suitability and cleanliness of the prisoners ’ clothing and bedding.", "45.1 The director shall consider the reports and advice that the medical practitioner or other competent authority submits according to Rules 43 and 44 and, when in agreement with the recommendations made, shall take immediate steps to implement them.", "45.2 If the recommendations of the medical practitioner are not within the director ’ s competence or if the director does not agree with them, the director shall immediately submit the advice of the medical practitioner and a personal report to higher authority.", "Health care provision", "46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison.", "46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment. ”", "IV. INTERNATIONAL AND DOMESTIC REPORTS CONCERNING THE SITUATION IN ROMANIAN PRISONS", "A. Reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT )", "125. The CPT visited Romania in 1995, 1999, 2001, 2002, 2003, 2004, 2006, 2009 and 2010 and carried out periodic visits to various detention establishments, including the prisons of Gherla, Bucharest- Jilava and its hospital, Codlea, Craiova, Tulcea, Bacău and Ploieşti.", "126. Overcrowding of prisons and lack of reasonable hygiene facilities at the national level were constantly highlighted by the CPT, which also concluded that in the light of the deplorable material conditions of detention in some of the cells of the establishments visited, the conditions of detention could be qualified as inhuman and degrading.", "127. In the report published on 11 December 2008 ( CPT/Inf (2008) 41) following a visit from 8 to 19 June 2006 to a number of detention facilities, including the prisons of Bucharest-Jilava, Bacău, Craiova and Ploieşti, the CPT found that severe overcrowding and lack of reasonable hygiene facilities remained a constant problem, not only in the establishments visited but at national level, and that this had remained the case since its first visit to Romania in 1999.", "Moreover, the CPT found in respect of the prisons visited, in particular the prisons of Bacău and Ploieşti, a lack of access to natural light, bad air ventilation, particularly dirty mattresses, lack of activities outside the cells, bad quality food and poor hygiene in the kitchens, and widespread non ­ observance of the daily one-hour walk. The conditions in Bucharest ­ Jilava Prison, in particular the section for dangerous detainees, were qualified as appalling by the CPT, which noted that the prison administration itself had acknowledged that material conditions of detention throughout the prison were extremely poor. The CPT declared itself particularly concerned about the constant lack of beds and the fact that in all the prisons visited the personal space per detainee was no more than 1.5 square metres and sometimes even as little as 0.6 square metres. While welcoming the changes introduced in domestic legislation providing for personal space of 4 square metres for each prisoner, the CPT recommended, inter alia, that necessary measures be taken to ensure compliance with this requirement. The CPT found the detainees ’ access to medical treatment to be insufficient, including with respect to dental care: lack of adequate staff, long waiting periods for consultation, inadequate consultation procedures. The CPT formulated a number of recommendations, including increased use of the possibility to grant, in due time, a stay of execution for health reasons.", "B. Reports by the Council of Europe Commissioner for Human Rights", "128. In a report following his visit to Romania in October 2002 the Commissioner for Human Rights made the following comments on the situation in prisons :", "“11. However, the prison service is facing serious problems, in particular the dilapidation of many of the prisons and, above all, chronic overcrowding. [ ... ] Thus the overall occupancy level for prisons is 137% and there is a manifest shortage of beds. My visit to Codlea prison, which has an occupancy level of 197% and where 25 prisoners are regularly held in cells designed for 15, clearly illustrated the situation. I was all the more concerned to learn that some prisons had even higher occupancy levels, rising to 353%.", "12. Being aware of the problem, the authorities keep the highest rates of overcrowding for open prisons, where the prisoners work during the day and are therefore not continually faced with the acute lack of space. However, this solution cannot be other than very temporary. The fact that several prisoners received pardons during my visit demonstrates that changes in prison policy are both possible and expected. Given that, for economic reasons, there are no plans to build new prisons at the moment I would urge the authorities to develop a system of alternative penalties, effective management of release on parole and a judicial policy requiring moderation in the use of detention. I welcome the efforts of the Ministry of Justice in this direction and invite it to complete these reforms as soon as possible [ ... ]. ”", "129. In his follow - up report on Romania (2002-2005) on the assessment of the progress made in implementing his earlier recommendations, published on 29 March 2006, the Council of Europe Commissioner for Human Rights made the following comments on the situation in prisons :", "“11. In spite of the efforts made to improve prisons, recent studies carried out by the Romanian authorities show that the situation remains difficult. In 2004, out of 44 prisons, 8 had very good conditions, 15 had good conditions, 15 had satisfactory conditions and 6 had particularly difficult conditions, including Jilava prison, near Bucharest, which was visited by the members of the Office of the Commissioner.", "12. Prison over-population continues to be a persistent problem in Romania, although the number of prisoners has fallen from more than 47,000 in 2002 to around 39,000 at the end of 2004. On average, the rate of overpopulation has fallen significantly and is now at an acceptable level of 101%. However, certain prisons still have an intolerable overpopulation [ In particular the Bacău prison, which had a rate of overpopulation of 288% on 31 December 2004 ]. From a general point of view, living conditions in prison have improved but still require further improvement, owing in particular to the lack of resources allocated to them.", "13. As well as the lack of means, there is a manifest lack of prison staff. Romania has on average one warder for seven prisoners, and even one for seventeen prisoners in certain prisons, whereas the average in Europe is closer to one warder for four prisoners. That shortage means that warders on duty have to increase their working time and are reduced to a purely supervisory role, and it may have negative consequences on their actions or interventions. Lastly, the lack of staff represents a significant obstacle to the normalisation of prison life and exacerbates the shortage of equipment and the problems associated with overpopulation, and severely limits work towards reintegration.", "14. Nonetheless, a significant process of modernisation has been initiated. Among the objectives of the Strategy for the reform of the judicial system 2004-2007, mention should be made of the intention to build new prisons and to modernise nine centres. Over the period 2001-2005, 6,332 new places were created.", "15. In this process for the improvement of living conditions in prisons, mention may be made of the modernisation of the young offenders ’ centre in Gaesti and the creation of the centres in Ocna and Buzias, the construction at Rahova prison of a hospital specialising in surgery, and the provision of hot and cold water and installation of central heating in all prisons. Also noteworthy, finally, is the transparency of the Ministry of Justice, which publishes detailed statistics on the prison situation on its internet site.", "16. As regards alternatives to detention, the new Criminal Code, adopted in June 2004 introduced the possibility of an open or semi-open prison regime for petty offences. It also provides for options other than imprisonment for young offenders and offers wider possibilities for the application of penalties.", "17. The Commissioner ’ s team visited Jilava and Rahova prisons, both near Bucharest. These two prisons to a large extent reflect the situation in prisons in Romania at the time of the visit.", "18. At the time of the visit, Rahova prison had 1,915 prisoners, including 80 minors, for 2,200 places. The different wings of Rahova prison have recently been renovated and provide reasonable living conditions. However, a problem of overcrowding affected the women ’ s section, where up to 16 women were being held in cells with only 10 beds. There are two reasons for this overcrowding. First, women ’ s prison sections are rare in the Bucharest area and prisoners wish to or must remain in Rahova (in order to be near their families, or because the proceedings are still pending, etc.); and, second, the women ’ s wing was reduced by one half in order to build the new prison hospital.", "19. Rahova prison hospital admits and treats prisoners from the whole country. It has a very modern operating facility and the latest generation of medical equipment. As the Director of the Prison Administration states, the construction of this facility required a significant but essential financial effort, as prison medicine was incomplete and inappropriate. Prisoners are now able to receive proper care, sometimes in better conditions than in some civil hospitals.", "20. By comparison with the positive example found in Rahova, Jilava prison appeared, at the time of the visit, to be in an alarming situation. Essentially a transit prison and a preventive detention prison, it had 2,500 prisoners for 1,400 places, and was one of the most overcrowded prisons in Romania. Conditions were deplorable from any point of view, as the Director of Romanian Prisons acknowledged. All the installations were obsolete, the windows incapable of keeping out the cold and the furniture from another era. Over-population meant that in some cases 27 prisoners had to live in cells designed for 6 or 8 prisoners.", "Conclusions", "21. The Commissioner emphasises the efforts made and the investments carried out to improve prison conditions and welcomes the adoption of new alternative measures. There is a clear intention to increase available prison places in order to reduce prison overpopulation. The programme of bringing prisons into line with the standards of the Council of Europe must be continued. However, significant difficulties remain and an urgent solution must be envisaged for the most obsolete and the most overcrowded prisons, such as Jilava prison .”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "113. Articles 998 and 999 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who intentionally or negligently caused that damage.", "114. Excerpts from the relevant provisions of Law no. 23/1969, on the execution of sentences, concerning the rights of detainees are described in paragraphs 23 and 25 of the Năstase-Silivestru judgment (see Năstase ‑ Silivestru v. Romania, no. 74785/01, 4 October 2007).", "115. Law no. 23/1969 was replaced by Emergency Ordinance no. 56/ 2003 (“Ordinance 56”) on the rights of prisoners, adopted by the Government on 25 June 2003 and ratified by Parliament on 7 October 2003. The Ordinance stated, in section 3, that prisoners had the right to bring legal proceedings before a court concerning measures taken by prison authorities in connection with their rights provided for by law. The court could either cancel the impugned measure or reject the complaint.", "116. Emergency Ordinance no. 56/2003 was repealed on 18 October 2006 by Law no. 275/2006 on the execution of sentences, which in its section 38 provides for a similar appeal to be lodged with a judge delegated by the court of appeal to supervise the observance of the prisoners ’ rights. The delegate judge ’ s decisions can be appealed against to a court. The delegate judge and the court can either cancel the impugned measure or reject the complaint.", "Law no. 275/2006 also stipulates that sentences must be executed in conditions compatible with respect for human dignity, and that each detainee must be provided with a bed, that cells must have natural light, that detainees must wear civilian clothes when serving their sentences, and that if they do not have any, these should be provided free of charge by the prison authorities.", "No provision deals with the structural quality of the place of detention or how much space detainees should have.", "117. Order No. 433/C of the Minister of Justice, of 5 February 2010, concerning compulsory minimum standards in prison facilities, entered into force on 15 February 2010. According to this order, the minimum living space was set at 6 cubic meters per person ( about 2 square metres per person) for prisoners assigned to the open and semi-open prison regime, and 4 square metres per person for other categories of prisoners, including minors and remand prisoners.", "118. Joint Order No. 1361/C/1016/2007 of the Ministers of Justice and Health, of 6 July 2007, concerning health insurance for detained persons provided, inter alia, that only detainees who lacked financial resources and had lost more than 50% of their chewing ability while in detention were entitled to a free prosthesis. In other cases, detainees had to bear part of the cost of the prosthesis.", "119. On 21 February 2012 the Ministers of Justice and Health issued a new Joint Order No. 429/125/2012 concerning health insurance for detained persons. According to this order, detained persons are entitled in all cases to free medical assistance from a special budget at the disposal of the National Prisons Administration.", "III. RELEVANT INTERNATIONAL STANDARDS", "120. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV), of 31 July 1957, and 2076 (LXII), of 13 May 1977, provide, in particular, as follows:", "“10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation...", "11. In all places where prisoners are required to live or work,", "(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;", "(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.", "12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.", "13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.", "14. All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.", "15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness...", "19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.", "20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.", "(2) Drinking water shall be available to every prisoner whenever he needs it.", "21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.", "45. (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited...”", "121. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows:", "Extracts from the 2nd General Report [CPT/Inf (92) 3]", "“46. Overcrowding is an issue of direct relevance to the CPT ’ s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.", "47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature...", "48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather ...", "49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...", "50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.”", "Extracts from the 3rd General Report [CPT/Inf (9 3 ) 12 ]", "“ 30. Health care services for persons deprived of their liberty is a subject of direct relevance to the CPT ’ s mandate. An inadequate level of health care can lead rapidly to situations falling within the scope of the term \"inhuman and degrading treatment\". Further, the health care service in a given establishment can potentially play an important role in combating the infliction of ill-treatment, both in that establishment and elsewhere (in particular in police establishments). Moreover, it is well placed to make a positive impact on the overall quality of life in the establishment within which it operates...", "34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime [ ... ] The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay.", "Prisoners should be able to approach the health care service on a confidential basis, for example, by means of a message in a sealed envelope. Further, prison officers should not seek to screen requests to consult a doctor.", "35. A prison ’ s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). The services of a qualified dentist should be available to every prisoner. Further, prison doctors should be able to call upon the services of specialists.", "As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.", "Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.", "36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital ...", "38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly ...", "39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient ’ s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.", "Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise ...", "53. It lies with prison health care services - as appropriate acting in conjunction with other authorities - to supervise catering arrangements (quantity, quality, preparation and distribution of food) and conditions of hygiene (cleanliness of clothing and bedding; access to running water; sanitary installations) as well as the heating, lighting and ventilation of cells. Work and outdoor exercise arrangements should also be taken into consideration.", "Insalubrity, overcrowding, prolonged isolation and inactivity may necessitate either medical assistance for an individual prisoner or general medical action vis-à -vis the responsible authority.”", "Extracts from the 7th General Report [CPT/Inf (97) 10]", "“ ...", "As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee ’ s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.", "The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”", "Extracts from the 11th General Report [CPT/Inf (2001) 16]", "“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...", "29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.", "30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis ...”", "122. Concerning overcrowding, the CPT indicates the following in the document named “ CPT standards ” ( CPT/Inf/E (2002) 1 ):", "“ 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners ... .”", "123. On 30 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation, which provides in particular as follows:", "“Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions;", "Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation, priorities in crime control, the range of penalties available on the law books, the severity of the sentences imposed, the frequency of use of community sanctions and measures, the use of pre-trial detention, the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment...", "Recommends that governments of member states:", "- take all appropriate measures, when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation, to apply the principles set out in the appendix to this recommendation...", "Appendix to Recommendation No. R (99) 22", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "130. The applicant complained under Article 3 of the Convention of inhuman and degrading treatment on account of the material conditions of detention and the lack of adequate medical care in the various prisons where he had been detained. In particular, he complained of severe overcrowding, insalubrious sanitary facilities, the presence of lice, poor quality food, lack of hot or cold running water, lack of adequate activities and excessive restrictions on out-of-cell time. He further complained of inadequate health care and that in response to his repeated requests for dental care he was told that there were not enough funds.", "131. He submitted that the situation amounted to a structural problem, which has been acknowledged by the domestic authorities.", "132. Article 3 of the Convention reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "133. The Government submitted first that the applicant ’ s complaint in respect of the conditions of his detention had been decided by a final judgment of 12 August 2004, and that the application, which was lodged with the Court only on 14 September 2005, was therefore outside the six ­ month time-limit.", "134. Alternatively, in their observations of 15 February 2011 the Government alleged that the copy of the record of the medical examination carried out on 11 October 2010 which the applicant had sent to the Court (see paragraph 96 above ) contained inscriptions which were not made by Dr E.M. They submitted a written statement by Dr E.M. according to which certain handwritten inscriptions on that record were not in her handwriting, and that the original of that medical record was kept by the Ploieşti Prison administration. The Government inferred that the applicant had tried to use a forged document in support of his allegations. They therefore argued that his application should be declared inadmissible for “abuse of the right of individual petition”, pursuant to Article 35 § 3 of the Convention.", "135. The applicant disagreed. He pointed out that he had lodged numerous complaints concerning his conditions of detention, including inappropriate health-care. His complaint lodged with the Ploieşti Court of First Instance on 4 June 2004 and examined by a final judgment of 12 August 2004 related to only one episode of a continuous situation covering all the prisons in which he was detained.", "He also argued that the problem of conditions of detention was a structural problem in Romanian prisons, for which the six-month period ran, according to the Court ’ s case-law, from the cessation of the situation.", "In his observations of 2 May 2011 the applicant submitted that the document concerning the consultation of 11 October 2010 was part of his prison medical file, kept, according to the relevant legal provisions, by the Ploieşti Prison administration. It was not for him to explain why there was different handwriting on that document and in any event that record did not bring any new information concerning his dental problems. He had submitted the record to the Court in support of his allegations that, while he was in prison, he had been treated in a private practice for his dental problems.", "136. The Court reiterates that Article 35 § 1 of the Convention permits it to deal with a matter only if the application is lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies. It also reiterates that in cases where there is a continuing situation, the six-month period runs from the cessation of that situation (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004).", "137. The Court reiterates that the concept of a “continuing situation” refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim (see Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002 ‑ VII ). Complaints which have as their source specific events which occurred on identifiable dates cannot be construed as referring to a continuing situation ( see Camberrow MM5 AD v. Bulgaria, (dec.), no. 50357/99, 1 April 2004 ).", "Hence, the Court has previously refused to treat the time spent by applicants in different detention facilities as a continuing situation in cases where their complaints related to specific episodes, such as force - feeding (see Nevmerzgitskiy v. Ukraine (dec.), no. 58825/00, 25 November 2003) or failure to render medical assistance at different facilities (see Tarariyeva v. Russia (dec.), no. 4353/03, 11 October 2005).", "138. In the instant case, the Court notes that during the period of his detention the applicant was frequently transferred between nine detention facilities, and complained about the conditions of detention in six of these. He did so consistently, even after having lodged the present application ( see paragraphs 105 to 108 above).", "In any event, the applicant alleged that the conditions remained substantially identical, and that his transfer from one facility to another did not in any way change his situation.", "His complaints do not relate to any specific event but concern the whole range of problems regarding sanitary conditions, the temperature in the cells, overcrowding, lack of adequate medical treatment, in particular dental treatment, and so on, which he suffered during almost the entire period of his detention, until 11 May 2010. It follows that the applicant ’ s detention in Jilava, Ploieşti, Mărgineni and Rahova Prisons, and Jilava and Rahova Prison Hospitals can be regarded as a continuing situation.", "139. In respect of the Government ’ s allegation that the applicant availed himself, with dishonest intention, of a document in which different handwriting had been used, the Court recalls that an application may be rejected as abusive, inter alia, if it was knowingly based on untrue facts (see, for instance, Akdivar and Others v. Turkey, 16 September 1996, §§ 53 ­ 54, Reports of Judgments and Decisions 1996-IV; I.S. v. Bulgaria (dec.), no. 32438 /96, 6 April 2000, unreported; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000 ‑ X; and Nold v. Germany, no. 27250/02, § 87, 29 June 2006 ).", "In the instant case, the Court notes, on the one hand, that the original of the impugned document was part of the applicant ’ s medical prison file and, as such, was in the custody of Ploieşti Prison administration. On the other hand, Dr. E.M. did not state that the information recorded in that document, at the end of the examination she had carried out on 11 October 2010, was untrue.", "Furthermore, the Government did not claim that the information contained in the medical record of 11 October 2010 was untrue or not known to the authorities : information about the applicant ’ s dental problems such as caries and the need for a prosthesis was already recorded in the applicant ’ s prison file (see paragraphs 78, 83 and 103 above). Finally, the impugned document contained undisputed information on the appointments made by the applicant with the private practice of Dr E.M.", "Therefore, the Court finds that the Government ’ s objection is unsubstantiated, there being no indication that the application was based, knowingly or otherwise, on untrue facts.", "Accordingly, the Court dismisses the Government ’ s objections.", "140. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The submissions of the parties", "( a ) The applicant", "141. The applicant contested the Government ’ s submissions and reiterated that he had been held in precarious conditions, that the cells had been overcrowded and the quality of the food very poor, that the conditions of detention had not been conducive to maintaining proper hygiene and that he had had no out-of-cell activities. He referred to the CPT reports and various domestic NGOs ’ reports for the relevant periods as confirming his allegations.", "142. The applicant further alleged that while in detention he had developed various diseases as a result of the poor conditions. As he did not receive adequate treatment, many of these diseases had developed into chronic diseases which were not adequately treated. The applicant submitted that, although he had made several complaints concerning the lack of medical care and medicines, he had been told that there were no funds available.", "( b ) The Government", "143. Referring to the information submitted on the general conditions of detention (see paragraphs 33 - 42 above), the Government contended that the domestic authorities had taken all necessary measures in order to ensure that the applicant had adequate conditions of detention.", "As to overcrowding, they stressed that the number of beds started to exceed the number of detainees from 2004 in most prisons, and from 2006 in Ploieşti Prison.", "144. As regards medical treatment, the Government submitted that the applicant ’ s complaint could not be understood as a request to obtain dentures free of charge. Concerning the other diseases, the Government submitted that a number of measures (see paragraphs 98 - 102 above) had been taken to ensure that the applicant ’ s health was being taken care of in an adequate manner. The applicant had failed to point to any inadequacies in this area and his complaints were wholly unsubstantiated.", "The Government argued that in any event, the applicant ’ s conditions of detention had not amounted to a violation of Article 3 of the Convention. They relied on the Court ’ s judgment in the case of Kudła v. Poland [GC] (no. 30210/96, § 92-94, ECHR 2000-XI ).", "( c ) The third-party intervener", "145. Its scope of activity including monitoring of detention conditions in prisons and police cells, APADOR-CH, the third-party intervener, carried out fact-finding missions in prisons. Based on the result of these visits, it provided specific information on the establishments visited after the entry in force of Law no 275/2006.", "146. Between 200 2 and March 20 1 1 APADOR -CH conducted regular visits in more than 20 prisons throughout the country, including the prisons of Aiud, Gherla, Baia Mare, Colibaşi, Drobeta Turnu-Severin, Timişoara, Bucharest-Jilava and its hospital, Giurgiu, Bucharest-Rahova and its hospital, Focşani (Mândreşti), Poarta-Albă and its hospital, Tichileşti (Brăila) Prison for juvenile offenders and Târgşor Prison for women. After each visit, a public report was drawn up, including on - the - spot direct findings as well as information and statistics submitted by the authorities on the relevant matters.", "147. The third - party intervener submitted a summary of its main findings on the prisons visited and referred, for further details, to each specific report.", "148. Overcrowding has been and remains a general problem in Romanian penitentiaries. All the prisons visited had serious overcrowding problems at the time of the visits. Discussions with prison administrations showed that prison staff did not apply the CPT standard (minimum requirement of 4 square metres per detainee); instead, they regularly used norms based either on the number of beds or on a minimum of 6 cubic meters per detainee, and even these norms were often not observed. New regulations introduced by Order no. 433/2010 approving the minimum compulsory standards in prison facilities apply the 4 square meters legal requirement only to maximum security and closed regime prisoners and only in new or renovated prison facilities.", "149. All the prisons visited allowed less than 4 square metres per detainee, with averages of 0.7 square metres in Timişoara Prison; 1 square metre in Colibaşi Prison; 2.08 square metres in Jilava; 1.65 square metres in Focşani Prison; 2 .62 square metres in Târgşor; 2. 0 square metres in Rahova Prison, or even less, as in 2009 a cell measuring 18 square metres accommodated eleven prisoners; 1.36 square metres in Ploieşti Prison; 2.0 square metres in Mărgineni Prison; and 2.77 square metres in Rahova Prison.", "150. The detainees ’ living conditions were directly affected by the overcrowding in the prisons.", "151. In Rahova Prison there were no chairs or benches in the cells.", "152. In 2008 in Jilava Prison the water was muddy and full of impurities, unsuitable for drinking and risky even for washing. The basement of the older wing was flooded with water and dejections, and was a source of pestilential stench and infection that infested that part of the prison with rats and cockroaches, rendering the situation intolerable and a real danger for the detainees ’ health.", "153. Hot water was generally provided on a schedule. Theoretically, access to showers was granted on a weekly basis, once or twice a week; in practice, however, because of overcrowding and the limited number of showers, access to them was limited. In all the prisons the shower facilities needed repairs, were frequently insalubrious and required better cleaning. The findings were the same with regard to the hygiene and cleanliness of toilets and sinks in the rooms. The latter had only cold water and were used for all purposes: cleaning the toilets, which often did not have running water, the personal hygiene of the detainees, washing their clothing and cleaning the cell.", "154. Parasites such as lice in the dirty, worn - out mattresses and bed linen, rendering de-bugging operations inefficient, were not uncommon, including in Jilava, Aiud, Colibaşi and Rahova prisons. As a result of the poor hygiene there were numerous cases of dermatitis, scabies and/or prurigo.", "155. In the cold season some establishments, such as Aiud and Rahova prisons, did not provide enough heating in the cells. In Colibaşi Prison the light switches were placed outside the cells, out of the detainees ’ reach, and some detainees complained that lights were occasionally left on during the night.", "156. In all the facilities visited detainees complained about the poor quality/quantity of the food. Lunches consisted mainly of rice, dried beans or potatoes. Fresh vegetables were never used. In general, meat of poor quality (pork carcass, lard, bones) was used and the portions served to individual detainees contained only traces of meat. Detainees relied mainly on the food they could afford to buy from the prison store and food received from family or friends. Even in cases where detainees had special dietary needs ( for health or religious reasons), the food provided contained a lot of lard. When questioned about this situation, the prison doctors explained that the only obligation they had was to provide an “organoleptic examination ” of the detainees ’ food.", "157. Food was generally served in the cells since the prisons did not have canteens. The premises where food was prepared and stored lacked minimum hygiene standards and a large majority of the premises monitored were unfit for food preparation or storage (dirty, run-down kitchens with mould and fungi on the walls ).", "158. The prohibition of food parcels sent by post ( Orders of the Minister of Justice nos. 3042/2007 and 2714/2008) had negative effects on those detained a long way from their families and whose families could not afford the cost of transport to the prison.", "159. The detainees ’ right to medical care is provided for in sections 50 to 5 2 of Law no. 275/2006 and Order no. 1361/2007 on medical assistance to detainees in the custody of the National Prison Administration. According to these provisions, medical treatment and drugs must be provided free of charge.", "160. The third - party intervener found that the whole prison system had insufficient medical staff. As a result, strict scheduling was required in order to accommodate all detainees, be it for visits for health problems or for regular check-ups.", "161. Many detainees complained that they did not receive their medication on time and that it had to be bought for them by their families precisely because they did not get to see the doctor more than once a month. There was a shortage of medicines in many prisons, which the National Prison Administration acknowledged was due to bureaucratic problems. Untreated or badly treated diseases were frequent.", "162. Only a small percentage of detainees were offered the possibility to work, and very few indoor activities were offered to the large number of detainees who were not allowed to work. The prisons visited were understaffed and the staff untrained in this respect. Lack of activities was the second complaint, after the quality of the food, voiced by detainees in all the facilities monitored.", "163. With regard to outdoor activities, in general the exercise yards were insufficient considering the number of inmates in each prison, and most often devoid of any equipment. In particular, in Jilava Prison the exercise yards were mere cages covered with wire nets, exposed to the sun and rain, where detainees were only able to stand idle or walk. In Giurgiu Prison high - risk / dangerous detainees were taken out in cages on top of the buildings and not in the exercise yards.", "164. A large number of detainees were willing to work because of the salary, albeit modest ( part of which salary went to the National Prison Administration and the remaining part to the detainee, who was not allowed to spend it all before his release ), and the possibility of having their sentence reduced. However, the percentage of detainees working inside or outside the prison was very small (ranging from none to less than 50%).", "2. The Court ’ s assessment", "( a ) General principles", "165. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim ’ s conduct ( Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV).", "As the Court has held on many occasions, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67 ‑ 68 and 74, ECHR 2001-III, and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001 ‑ VIII ).", "166. Measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, the suffering and humiliation involved must not go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.", "In the context of prisoners, the Court has already emphasised in previous cases that a detained person does not, by the mere fact of his incarceration, lose the protection of his rights guaranteed by the Convention. On the contrary, persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Under Article 3 the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Valašinas, § 102, and Kudła, § 94, judgments cited above ).", "167. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). The length of the period during which a person is detained in the particular conditions also has to be considered (see, among other authorities, Alver v. Estonia, no. 64812/01, 8 November 2005).", "168. The extreme lack of space in a prison cell weighs heavily as an aspect to be taken into account for the purpose of establishing whether the detention conditions complained of were “degrading” from the point of view of Article 3 (see Karalevičius v. Lithuania, no. 53254/99, 7 April 2005).", "In previous cases where applicants had at their disposal less than 3 square metres of personal space, the Court found that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see, among many other authorities, Sulejmanovic v. Italy, no. 22635/03, § 51, 16 July 2009; Lind v. Russia, no. 25664/05, § 59, 6 December 2007; Kantyrev v. Russia, no. 37213/02, § 50-51, 21 June 2007; Andrey Frolov v. Russia, no. 205/02, §47-49, 29 March 2007; and Labzov v. Russia, no. 62208/00, § 44, 16 June 2005 ).", "169. By contrast, in other cases, where the overcrowding was not as severe as to raise in itself an issue under Article 3 of the Convention, the Court noted other aspects of physical conditions of detention as being relevant for its assessment of compliance with that provision. Such elements included, in particular, the availability of ventilation, access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements and the possibility of using the toilet in private. Thus, even in cases where a larger prison cell was at issue – measuring in the range of 3 to 4 square metres per inmate – the Court found a violation of Article 3 since the space factor was coupled with the established lack of ventilation and lighting (see, for example, Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Ostrovar v. Moldova, no. 35207/03, § 89, 13 September 2005; and Peers, cited above, §§ 70-72) or the lack of basic privacy in the prisoner ’ s everyday life (see, mutatis mutandis, Belevitskiy v. Russia, no. 72967/01, §§ 73-79, 1 March 2007; Valašinas, cited above, § 104; Khudoyorov v. Russia, no. 6847/02, §§ 106-107, ECHR 2005 ‑ X (extracts); and Novoselov v. Russia, no. 66460/01, §§ 32 and 40-43, 2 June 2005).", "170. Moreover, the State ’ s obligation under Article 3 of the Convention to protect the physical well-being of persons deprived of their liberty has been interpreted as including an obligation to provide them with the requisite medical assistance (see, for instance, Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79; Kudła cited above, § 94; and Istratii and Others v. Moldova, no. 8721/05, 8705/05 and 8742/05, § 49, 27 March 2007 ). The mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee ’ s state of health and the treatment he underwent while in detention, that the diagnoses and care are prompt and accurate, and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee ’ s diseases or preventing their aggravation, rather than addressing them on a symptomatic basis. The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Visloguzov v. Ukraine, no. 32362/02, § 69, 20 May 2010 and the case-law cited therein ).", "( b ) Application of these principles to the present case", "i. Material conditions of detention", "171. The Court observes that the applicant spent his entire detention in seven detention facilities. In his application lodged with the Court in 2005 he complained about the conditions of detention in four of them : Ploieşti Prison, Jilava Prison and its hospital, Mărgineni Prison, and Rahova Prison and its hospital.", "172. The Court notes that the Government acknowledged overcrowding in all the detention facilities where the applicant was held until 2004, and in Ploieşti Prison until 2006 (see paragraph 34 above). It further notes that the statistics provided by the Government in reply to the allegations of overcrowding were based on occupancy of the available beds, and not on surface per detainee. Moreover, with regard to significant periods of time, they did not provide any information at all, on the ground that the relevant records had been destroyed in keeping with specific regulations ( see paragraph 35 above).", "173. Despite the scarce and scattered information submitted by the Government, the Court observes, based on all the material at its disposal, that the personal space allowed to detainees in the detention facilities where the applicant was detained between 2002 and 2011 was, save for occasional situations, consistently less than three square metres (see paragraphs 28, 49, 61 to 63 and 123 to 127 above ). The Government have not put forward any element capable of refuting the applicant ’ s allegations of overcrowding in the cells where he was detained in Ploieşti Prison, Jilava Prison and its hospital, Mărgineni Prison, and Rahova Prison and its hospital, which are corroborated by the above - mentioned information from many sources, including the Government. This state of affairs in itself raises an issue under Article 3 of the Convention (see, among many other authorities, Marian Stoicescu v. Romania, no. 12934/02, §§ 13 and 24, 16 July 2009; Orchowski v. Poland, no. 17885/04, § 122, ECHR 2009 ‑ ...; and Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, § 77, 20 October 2011, with further references ).", "Furthermore, this situation was worsened by the fact that in many detention facilities there were fewer beds than inmates, so that the applicant had to share often his bed with other inmates (see paragraphs 13, 19 and 27 above).", "174. Concerning the material conditions of detention, the Court notes that the Government did not refute either the precise allegations made by the applicant or the findings of the various bodies who visited the detention facilities in which the applicant was detained. In reply to the applicant ’ s specific allegations the Government merely referred in great detail to the legal provisions governing the rights of detainees.", "175. Having regard to the applicant ’ s allegations, supported by the findings made by the CPT, the Human Rights Ombudsman and APADOR ­ CH, but also based on the information provided by the Government, the Court finds it established that the applicant also experienced the following conditions: lack of appropriate furniture in the cells; poor sanitary facilities, such as a limited number of toilets and sinks for a large number of detainees, toilets in cells with no water supply, sinks in cells providing only cold water for a wide range of needs ( personal hygiene, washing clothing and personal objects, cleaning the toilets ), limited access to showers providing hot water; poor sanitary conditions in general, including the presence of cockroaches, rats, lice and bedbugs, worn - out mattresses and bed linen, and poor quality food. Moreover, the applicant was confined to his cell most of time, save for one hour of daily exercise and even as little as thirty-minutes walk; very often he was not able to spend time outside the overcrowded cells (see paragraphs 14 to 18, 22, 23, 29 to 32, 40, 67, 125 to 129, and 145 to 164, above ).", "176. The Court has frequently found a violation of Article 3 of the Convention on account of the lack of personal space afforded to detainees and unsatisfactory sanitary conditions (see, in particular, Ciorap v. Moldova, no. 12066/02, § 70, 19 June 2007; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002 ‑ VI; Bragadireanu v. Romania, no. 22088/04, §§ 92-98, 6 December 2007; and Iamandi v. Romania, no. 25867/03, §§ 56-62, 1 June 2010 ).", "177. In the case at hand, the Government failed to put forward any argument or information that would allow the Court to reach a different conclusion.", "Not only do the above conditions not satisfy the European standards established by the CPT (see paragraphs 121 and 122 above), but the cumulative effect of overcrowding in large capacity (and sometimes also insalubrious) dormitories, a poor regime of activities, bad food and poor hygiene conditions can prove detrimental to the prisoners (see also, mutatis mutandis, Kalashnikov v. Russia, cited above, § 97, and Kehayov v. Bulgaria, no. 41035/98, § 66, 18 January 2005 ).", "178. The Court also considers that the applicant ’ s situation owing to insufficient personal space, bad food, poor hygiene conditions such as those described above, lack of appropriate activities outside the cell and lack of sufficient daily exercise was further exacerbated by his numerous transfers during his detention. In this respect, the Court notes that from January 2002 until his release in May 2011, the applicant was transferred 38 times between the various detention facilities, only five of which transfers concerned his stay in Rahova or Jilava Prison hospitals (see paragraph 8 above ).", "179. Even though in the present case there is no indication that there was a positive intention to humiliate or debase the applicant, the Court considers that the distress and hardship he endured exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 of the Convention.", "ii. Health care in detention", "180. It is common ground between the parties and supported by the documents submitted by the Government that upon his arrest in 2002 the applicant was not suffering from any illness. Only hepatitis he had been diagnosed with six years before he was placed in detention was mentioned in his medical file (see paragraph 70 above).", "181. The Court notes that in the course of his detention the applicant developed a number of chronic and serious illnesses.", "In August 2002 the applicant started to have dental problems, complaining repeatedly each year of sore teeth and other associated pains. Between 2002 and 2003 he had several teeth extracted, and it was not until the beginning of 2005 that he was diagnosed with partial edentulism and that a dental prosthesis was recommended.", "As from January 2004 the applicant also complained regularly of headaches. In December 2004 he was diagnosed with occipital neuralgia, for which treatment was recommended.", "In March 2005 he was diagnosed with chronic periodontitis, several extractions were performed and further monitoring was recommended. In 2006 he was again diagnosed with chronic generalised periodontitis requiring treatment, frontal edentulism, and occipital neuralgia requiring treatment, but also with neuralgia of the superior laryngeal nerve, nasal septal deviation and chronic rhinitis (see paragraph 83 above). Treatment of his dental problems was again recommended.", "The diagnosis of chronic periodontitis was again made in 2007 and further dental extractions were performed between 2006 and 2008.", "In 2008 chronic pharyngitis and a worsening of the applicant ’ s migraine were detected.", "By July 2010 the applicant was found to be suffering also from the following chronic illnesses: duodenal ulcer, chronic hepatitis, chronic migraine and biliary dyskinesia (see paragraph 91 above).", "182. Despite his chronic diseases, the Court notes that the applicant was treated on a symptomatic basis. No comprehensive record was kept of either his health or the treatment prescribed and followed. Thus, no regular and systematic supervision of the applicant ’ s state of health was possible. No comprehensive therapeutic strategy was set up, aimed at, to the extent possible, curing his diseases or preventing their aggravation rather than addressing them on a symptomatic basis.", "The applicant ’ s medical record indicates no treatment for the above chronic illnesses, including the chronic periodontitis. It appears that the applicant received symptomatic treatment consisting of pain killers and, for occasional infections, antibiotics.", "183. Moreover, the Court notes that even some of the medical recommendations and prescriptions of the doctors who examined the applicant were not implemented, such as the treatment for his neuralgia, a dental prosthesis and appropriate monitoring and treatment of his dental problems (see paragraphs 74, 77 - 78, 80 and 87 - 89 above ). Frequently the applicant had to wait for several weeks, despite severe pains, to be provided with medical assistance, in particular for his teeth, because no dentist was available ( see paragraphs 73, 76, 82 and 91 above).", "184. As a result, the applicant ’ s health seriously deteriorated over the years. In particular, his dental problems grew worse, and yet no appropriate treatment was envisaged. Combined with his other untreated chronic ailments, this resulted in various constant pains and, in respect of his dentition, eventually to the complete loss of fourteen teeth and the main part of two other teeth.", "185. Furthermore, the Court observes that the elements in the file indicate that the applicant followed all the treatments recommended to him by the doctors who examined him while in detention. Therefore, he did not contribute in any way to the worsening of his health condition (see, per a contrario, Epners-Gefners v. Latvia, no. 37862/02, § 44, 2 9 May 2012).", "Lastly, the Court observes that it was not until October 2010 that the applicant ’ s dental problems were taken care of intensively (fourteen appointments over a period of four months) and comprehensively ( check-up and treatment of all remaining teeth, as well as a dental prosthesis ) in a private practice outside the prison, which the applicant was allowed to consult only after he stated that he was in a position to do so at his own expense.", "186. In view of the above, the Court is not satisfied that the applicant was provided with adequate medical care during his detention, which in itself, having regard to the long period concerned and to the consequences on the applicant ’ s health, raises an issue under Article 3 of the Convention.", "iii. Conclusion", "187. The foregoing considerations are sufficient to enable the Court to conclude that the conditions in prison, in particular the overcrowding and lack of access to hygiene, as well as inappropriate treatment of his health problems, caused the applicant suffering attaining the threshold of inhuman and degrading treatment proscribed by Article 3.", "There has accordingly been a violation of Article 3 of the Convention.", "II. APPLICATION OF ARTICLE 46 OF THE CONVENTION", "188. Before examining the claims for just satisfaction submitted by the applicant under Article 41 of the Convention, and having regard to the circumstances of the case, the Court considers it necessary to determine what consequences may be drawn from Article 46 of the Convention for the respondent State. Article 46 of the Convention reads as follows:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”", "A. The parties ’ submissions", "1. The applicant", "189. Referring to the reports of national and international bodies on the conditions of detention ( see paragraphs 125 to 129 above), the applicant argued that his allegations related to a structural problem in Romanian prisons, which could only be resolved by taking adequate measures in the framework of Article 46 of the Convention. Overcrowding, poor hygiene conditions, inappropriate medical care, in particular dental care, were widespread and persistent despite the adoption of new legal provisions.", "2. The Government", "190. The Government contended that the national statutory requirements granting rights to persons detained were in perfect compliance with those set by the Court ’ s case-law relating to Article 3. It agreed that the situation in certain Romanian prisons did not comply with the national statutory requirements, and that some prisons experienced overcrowding. However, such a situation was not permanent but could also fluctuate significantly.", "191. Occasionally, there were other problems than overcrowding, but these problems had been identified and measures had been taken to tackle them: in 2010 measures aiming at improving the minimum space per detainee ( see paragraph 117 above ); in 2002 a new law on amnesty; in 2003 the abolition of prison sentences for minor offences, and changes in the Code of Criminal Procedure with regard to pre-trial detention; in 1999, specialisation of detention facilities according to the types of crimes committed and the offenders ’ age and sex; in 1998 and 2007, statutory measures aimed at increasing the quantity of products available to each detainee in order to maintain an adequate level of hygiene; in 1997 the establishment of a committee in charge of supervising the condition of the buildings and cells; in 2002 and 2004, measures aimed at improving the quality of water; in 1999 measures for setting up an adequate heating system; from 2006 acquisition of vehicles for the transportation of detainees; in 2010 a circular letter from NPA aimed at ensuring the same level of food for detainees throughout the country, and so on.", "192. The Government submitted therefore that there was no systemic problem in respect of the conditions of detention in Romanian prisons and invited the Court to decide on a case-by-case basis whether a prisoner ’ s particular circumstances amounted to a violation of Article 3.", "Moreover, referring to the Court ’ s judgement in the case of Orchowski cited above, the Government stressed that the number of judgments against Romania in which the Court has already found a violation of Article 3 of the Convention on account of inappropriate conditions of detention was very low and did not suffice to classify the problem as a structural one.", "3. The third-party intervener", "193. The third - party intervener submitted that its direct findings (see paragraphs 145 to 164 above ) disclosed the existence of a systemic problem within the Romanian prison system even after the entry into force and subsequent implementation of Law no. 275/2006. They submitted that in the absence of any substantial improvement, a pilot-case procedure could trigger a reform in the system, and would be an efficient remedy to the systemic problem.", "B. The Court ’ s assessment", "194. The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court has found to have been violated. Such measures must also be taken in respect of other persons in the applicant ’ s position, notably by solving the problems that have led to the Court ’ s findings (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 120, ECHR 2002-VI; Lukenda v. Slovenia, no. 23032/02, § 94, ECHR 2005-X; and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 134, ECHR 2008-...; Poghossian v. Georgia, no. 9870/07, § § 67 to 70, 24 February 2009; Ghavtadze v. Georgia, no. 23204/07, §§ 102 to 106, 3 March 2009 ). This obligation has been consistently emphasised by the Committee of Ministers in the supervision of the execution of the Court ’ s judgments (see, for example, ResDH(97)336, IntResDH(99)434, IntResDH(2001)65 and ResDH(2006)1). In theory it is not for the Court to determine what measures of redress may be appropriate for a respondent State to take in accordance with its obligations under Article 46 of the Convention. However, the Court ’ s concern is to facilitate the rapid and effective suppression of a shortcoming found in the national system of protection of human rights (see Driza v. Albania, no. 33771/02, § 125, ECHR 2007 ‑ XII (extracts)).", "195. In the present case the Court found a violation under Article 3 of the Convention for inadequate living and hygiene conditions, including health care, in the prisons in which the applicant was detained, which can be said to be a recurrent problem in Romania.", "The Court has regularly found violations of Article 3 of the Convention in respect of the conditions of detention that have existed over a number of years in Romanian prisons, in particular overcrowding, inappropriate hygiene and lack of appropriate health care (see, among many other cases, Bragadireanu, cited above; Petrea v. Romania, no. 4792/03, 29 April 2008; Gagiu v. Romania, no. 63258/00, 24 February 2009; Brânduşe v. Romania, no. 6586/03, 7 April 2009; Măciucă v. Romania, no. 25673/03, 26 August 2009; Artimenco v. Romania, no. 12535/04, 30 June 2009; Marian Stoicescu v. Romania, no. 12934/02, 16 July 2009; Eugen Gabriel Radu v. Romania, no. 3036/04, 13 October 2009; V.D. v. Romania, no. 7078/02, 1 6 February 2010; Dimakos v. Romania, no. 10675/03, 6 July 2010; Coman v. Romania, no. 34619/04, 26 October 2010; Dobri v. Romania, no. 25153/04, 14 December 2010; Cucolaş v. Romania, no. 17044/03, 26 October 2010; Micu v. Romania, no. 29883/06, 8 February 2011; Fane Ciobanu v. Romania, no. 27240/03, 11 October 2011; and Onaca v. Romania, no. 22661/06, 13 March 2012 ). The Court ’ s findings concern many prisons in Romania, spread throughout the territory, such as Bucharest-Jilava, Bucharest-Rahova, Giurgiu, Ploieşti, Gherla, Aiud, Mărgineni, Timişoara, Botoşani, Târgu-Ocna, Mândreşti, Poarta-Albă, Târgşor, Baia-Mare, Galaţi and Craiova.", "196. The Court takes note of the fact that the respondent State has taken certain general steps, including legislative amendments, to remedy the structural problems related to overcrowding and the resulting, inadequate conditions of detention (see paragraphs 33 to 42 and 191 above). By virtue of Article 46 of the Convention, it will be for the Committee of Ministers to evaluate the general measures adopted by Romania and their implementation as far as the supervision of the Court ’ s judgment is concerned.", "The Court cannot but welcome these developments, which may ultimately contribute to the improvement of the overall living and sanitary conditions in Romanian prisons. However, in view of the extent of the recurrent problem at issue, consistent and long-term efforts, such as the adoption of further measures, must continue in order to achieve complete compliance with Articles 3 and 46 of the Convention.", "197. The Court considers that in order to properly comply with the obligations stemming from the Court ’ s previous judgments in similar cases, an adequate and effective system of domestic remedies should be put in place, at the applicants ’ disposal, allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief.", "198. The remedy which under Romanian law relies mainly on the delegate judge (see paragraph 116 above) should allow the delegate judge and the domestic courts to put an end to a situation found to be contrary to Article 3 of the Convention and to grant compensation if such findings are made.", "199. As to the domestic law on compensation, it must reflect the existence of the presumption that substandard conditions of detention have occasioned non-pecuniary damage to the aggrieved individual. Substandard material conditions are not necessarily due to problems within the prison system as such, but may also be linked to broader issues of penal policy. Moreover, even in a situation where individual aspects of the conditions of detention comply with the domestic regulations, their cumulative effect may be such as to constitute inhuman treatment. As the Court has repeatedly stressed, it is incumbent on the Government to organise its prison system in such a way that it ensures respect for the dignity of detainees (see, among other authorities, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 229, 10 January 2012, with further references).", "The level of compensation awarded for non-pecuniary damage by domestic courts when finding a violation of Article 3 must not be unreasonable taking into account the awards made by the Court in similar cases. The right not to be subjected to inhuman or degrading treatment is so fundamental and central to the system of the protection of human rights that the domestic authority or court dealing with the matter will have to provide compelling and serious reasons to justify their decision to award significantly lower compensation or no compensation at all in respect of non-pecuniary damage ( see mutatis mutandis, Ananyev and Others cited above, § 230 ).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "200. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "201. The applicant claimed 1,600 Romanian Lei (RON) in respect of pecuniary damage, on account of the price he had to pay for the dental prosthesis he had to wear because of the lack of adequate dental care. He also claimed 200,000 euros (EUR) in respect of non-pecuniary damage and an allowance of EUR 1,000 per month for the rest of his life, in compensation for the irreversible chronic diseases he developed while in detention.", "202. The Government submitted that the applicant ’ s claims were excessive and unfounded.", "203. The Court notes that in paragraph 188 above it has found a violation of Article 3 of the Convention on separate accounts of improper living conditions in the various detention facilities where the applicant was detained and lack of adequate medical care during his detention. It further finds it reasonable to assume that the applicant certainly incurred costs which were directly attributable to the violation found. It also takes the view that as a result of the violation found the applicant undeniably suffered non ­ pecuniary damage which cannot be made good merely by the finding of a violation.", "Consequently, having regard to the circumstances of the case seen as a whole and deciding on equitable basis, the Court awards the applicant EUR 2 0 ,000 in respect of pecuniary and non-pecuniary damage, plus any amount that may be chargeable in tax.", "B. Costs and expenses", "204. The applicant also claimed EUR 5,720 for the costs and expenses incurred by his lawyers in the proceedings before the Court, and submitted an itemised schedule of these costs.", "205. The Government contested this claim as excessive.", "206. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the above criteria, and the fact that legal aid was paid to the applicant, the Court considers it reasonable to award the sum of EUR 4, 8 0 0, to be paid into the applicant ’ s representatives ’ bank account as identified by them.", "C. Default interest", "207. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants were born in 1955 and live in Baku.", "7. The first applicant is a well-known human rights defender and civil society activist. She is the director of the Institute for Peace and Democracy (“the Institute”), a non-governmental organisation specialising in human rights protection and conflict resolution.", "8. The second applicant, the first applicant ’ s husband, is a researcher and the head of the Conflict Resolution Department of the Institute.", "A. Institution of criminal proceedings against the first applicant and her detention pending trial", "9. On 30 July 2014 the first applicant was arrested by the police and was taken to the Serious Crimes Department (“the SCD”) of the Prosecutor General ’ s Office. On the same day she was charged under Articles 178.3.2 (large-scale fraud), 192.2.2 (illegal entrepreneurship), 213.2.2 (large-scale tax evasion), 274 (high treason), 320.1 and 320.2 (falsification of official documents) of the Criminal Code.", "10. On 30 July 2014 the Nasimi District Court, relying on the official charges brought against the first applicant and the prosecutor ’ s request for application of the preventive measure of remand in custody ( həbs qətimkan tədbiri ), ordered her detention pending trial for a period of three months. The court justified its application of the preventive measure by the gravity of the charges and the likelihood that if released, she might abscond from the investigation.", "11. On 1 August 2014 the first applicant appealed against this decision, claiming that her detention was unlawful. She submitted, in particular, that there was no reasonable suspicion that she had committed a criminal offence, and that there was no justification for the application of the preventive measure of remand in custody. She pointed out in this connection that her detention was related to her activities as a human rights defender and that she had been punished for her activities. She further complained that the court had failed to take into account her personal circumstances, such as her state of health and age, when it had ordered her detention pending trial.", "12. On 6 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court ’ s decision was lawful.", "13. On 24 October 2014 the Nasimi District Court extended the first applicant ’ s detention pending trial by four months, until 28 February 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed.", "14. On the same day the Nasimi District Court also dismissed the first applicant ’ s request to be released on bail or placed under house arrest instead of in pre-trial detention.", "15. On 27 October 2014 she appealed against these decisions, reiterating her previous complaints.", "16. On 30 October 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court ’ s decisions of 24 October 2014.", "17. No further extension decisions were included in the case file.", "B. Institution of criminal proceedings against the second applicant and his detention pending trial", "18. On 30 July 2014 the second applicant was questioned by an investigator at the SCD. Following the interrogation, he was charged under Articles 178.3.2 (large-scale fraud) and 274 (high treason) of the Criminal Code.", "19. On the same day the investigator decided to apply the preventive measure of placement under police supervision ( polisin nəzarəti altına vermə qətimkan tədbiri ), taking into account his state of health, in particular the fact that he suffered from chronic hypertension. The relevant part of the decision reads as follows:", "“Taking into consideration the state of health of the accused, Arif Yunusov, who was diagnosed with grade 3 hypertension and hypertensive crisis, and given medical treatment in the Central Oil Workers ’ Hospital and Baku City Clinical Hospital No. 1 ... it was appropriate to choose the preventive measure of placement under police supervision.”", "20. It appears from the documents submitted by the Government that on 30 July 2014 the second applicant was examined by two experts, who issued forensic medical report no. 185/KES dated 31 July 2014. The report confirmed that the second applicant suffered from chronic hypertension. The report also indicated that “ considering A. Yunusov ’ s current state of health, it is possible to carry out investigative actions with him” (“ A. Yunusovun hal-hazırkı sağlamlıq durumu ilə əlaqədar onunla istintaq hərəkətlərinin aparılması mümkündür ”).", "21. On 5 August 2014 the second applicant was arrested by the police. On the same day the prosecutor lodged a request with the Nasimi District Court asking it to replace the second applicant ’ s placement under police supervision with detention pending trial. The prosecutor justified his request by the second applicant ’ s failure to comply with the requirements of the preventive measure of placement under police supervision. The request also indicated that forensic medical report no. 185/KES dated 31 July 2014 did not reveal anything that would prevent the second applicant from participating in the investigation.", "22. On 5 August 2014 the Nasimi District Court ordered the second applicant ’ s detention pending trial for a period of three months. The court justified the detention by the gravity of the charges and the likelihood that if released he might abscond from the investigation.", "23. On 8 August 2014 the second applicant appealed against this decision. He submitted, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for replacing the preventive measure of placement under police supervision with detention pending trial. He also pointed out that his detention was related to his and his wife ’ s activities as a civil society activist and human rights defender and that the court had failed to take into account his personal circumstances, such as his state of health and age, when it had ordered his detention pending trial.", "24. On 11 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified.", "25. On 29 October 2014 the Nasimi District Court extended the second applicant ’ s detention pending trial by four months, until 5 March 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed.", "26. On 30 October 2014 the Nasimi District Court also dismissed the second applicant ’ s request to be released on bail or placed under house arrest instead of in pre-trial detention.", "27. On 3 November 2014 the second applicant appealed against these decisions, reiterating his previous complaints and arguing that the first ‑ instance court had failed to justify his continued detention.", "28. On 6 November 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court ’ s decisions of 29 and 30 October 2014.", "29. No further extension decisions were included in the case file.", "C. The applicants ’ state of health before their arrest", "30. The medical documentation submitted by the parties shows that the first applicant suffers from a number of illnesses. In particular, she has suffered from chronic hepatitis ( hepatitis C) since 1997. People with hepatitis C usually suffer from constant exhaustion, joint, muscle and abdominal pain, general sickness and weakness, and often depression. A low-fat diet is required to reduce liver damage. The disease is potentially fatal. The first applicant regularly underwent medical treatment in Germany before her arrest.", "31. Since 2009 she has also had type 2 diabetes, which is non-insulin dependent and requires sufferers to follow a special diabetic diet and take regular exercise. In addition, she suffers from myogelosis (muscle stiffness), arterial hypertension and a single cyst in the left kidney.", "32. It also appears from the medical documents in the case file that she underwent surgery on both eyes in Germany before her arrest and needs specialist medical care as a follow-up, to avoid any risk of damage to her eyesight. The relevant part of a letter dated 5 September 2014 from the head of the Department of Ophthalmology at the Asklepios Clinic in Hamburg reads as follows:", "“Mrs Yunusova ’ s right and left eyes were both myopic with cataracts.", "It is absolutely necessary that she undergoes a repeat consultation and examination for the development of capsular fibrosis, which can lead to visual impairment and needs surgical laser treatment.", "It is also absolutely necessary that she undergoes a complete bilateral examination of her retina since she has had myopia and her risk of retinal detachment is substantially higher than in normal eyes and is further increased by the previous surgery. Any signs of retinal tears must be treated early with a laser retinopexy to prevent further damage and minimise the risk of permanent visual impairment.”", "33. The medical documentation submitted by the parties shows that the second applicant suffers from grade 3 chronic hypertension and hypertensive crisis, with an increased risk of cardiovascular complications. He regularly underwent medical treatment in Germany before his arrest. He was also hospitalised from 25 to 28 April 2014 in the Central Oil Workers ’ Hospital and from 29 April to 6 May 2014 in Baku City Clinical Hospital No. 1.", "D. The applicants ’ conditions of detention and medical care", "1. The first applicant ’ s conditions of detention and medical care", "(a) The first applicant ’ s account", "34. The first applicant was detained in a cell with four other detainees, two of whom were extremely noisy. Heating was available but inadequate. The electricity was cut off from 2 to 3 p.m. and from 1 to 8 a.m., which made it impossible to use a heater. The temperature inside the cell and in the walking area was very low in winter. There was no proper ventilation inside the cell and the temperature was very high in summer. There was a problem with hot water distribution in the cell. In particular, she was not informed of the distribution time for the hot water and could not obtain more when necessary. Moreover, there was only one refrigerator for all the detainees on her floor which was not sufficient.", "35. According to the first applicant, upon her arrival at the detention facility, she was examined by a doctor who confirmed that she had type 2 diabetes and chronic hepatitis C.", "36. From 31 July to 5 August 2014 she was provided with the necessary diabetic food and medicine by the second applicant who, as a close family member, was entitled to deliver her parcels. However, following his arrest on 5 August 2014, she was deprived of the necessary diabetic food and medicine. In particular, the detention facility administration did not allow her lawyer or friends to deliver her parcels until 23 August 2014, arguing that only the family members of a detainee could send in parcels.", "37. In this connection, it appears from the documents submitted by the first applicant that on 6 August 2014 her lawyer asked the investigator in charge of the case to allow her friends, A.I. and S.A., to deliver her a parcel. He pointed out that, taking into consideration that on 5 August 2014 her husband had been arrested and that her only daughter lived abroad, the first applicant did not have any other family member to do this. On 22 August 2014 the lawyer also lodged a request with the administration of the detention facility (“the administration”), complaining that on 21 August 2014 employees had refused to receive a parcel for the first applicant on the grounds that it had not been sent in by a family member.", "38. On 22 August 2014 the first applicant lodged a request with the administration and the investigator in charge of the case, asking for a medical examination at her own expense by a doctor of her own choosing, A.G. She specified in her request that she suffered from diabetes and other serious illnesses, and that under domestic law detainees could be examined by a doctor of their own choosing.", "39. By a letter of 4 September 2014, the deputy governor of the detention facility replied to her request, noting that there was no need for a medical examination by A.G. In this connection, he pointed out that the first applicant ’ s state of health was stable and being monitored by the detention facility doctors. The letter also indicated that on 19 August 2014 she had been examined by an endocrinologist from the Ministry of Health, who had recommended that she continue her previous treatment.", "40. By a decision of 9 September 2014, the investigator dismissed her request, finding that all the necessary measures had been taken for her medical treatment in the detention facility.", "41. On 23 September 2014 the first applicant ’ s cell was searched. On the same day she was deprived of her right to make phone calls for one month. She was also obliged to take a cold shower because the shower room had no hot water.", "42. On 26 September 2014 the first applicant ’ s lawyer asked the administration to provide him with a copy of the administrative decision depriving the first applicant of her right to make phone calls. He did not receive any response to his request.", "43. On 14 October 2014 the first applicant ’ s lawyer asked the administration to provide him with a list of medication prescribed to the first applicant during her detention. He did not receive any response to his request.", "44. By a letter of 21 October 2014 the deputy governor of the detention facility responded to the first applicant ’ s complaint of being unable to receive parcels following her husband ’ s arrest. He noted that she had received a parcel sent in by A.I. on 23 August 2014. The letter was however silent as to the delivery of any parcels between 5 and 23 August 2014.", "45. In a statement dated 4 May 2015 submitted by the first applicant to the Court with the applicants ’ reply to the Government ’ s observations, she stated that she had not been provided with any documents concerning her state of health. As regards her medical treatment in detention, she stated that she had been examined on 29 December 2014 and 12 March 2015 at the Baku Diagnostic Centre by C.W., a German doctor from Charité, a university hospital in Berlin. During the examination on 29 December 2014, she had been insulted and humiliated by a doctor named R.A when C.W. had been out of the room. In March 2015 the eyesight in her left eye had drastically deteriorated. The ophthalmologist who had examined her on 31 March 2015 stated that the same process would soon begin to happen to her right eye. She further stated that in detention her weight had dropped dramatically because of her illnesses and conditions of detention.", "(b) The Government ’ s account", "46. On 31 July 2014 the first applicant was admitted to the Baku Pre ‑ trial Detention Facility of the Ministry of Justice.", "47. She was held with four other detainees in a cell measuring 26.32 sq. m designed to hold six detainees. The cell was adequately lit. It had two windows measuring 1.2 x 1.4 metres. The sanitary facilities were separate from the rest of the cell and were adequately ventilated. She was provided with food, water, bedding, clothing and other essentials.", "48. Upon her arrival at the detention facility on 31 July 2014, she underwent a series of medical examinations. Fluorography and electrocardiography examinations did not reveal any changes to her pathological condition. Her neuropsychological status was evaluated as satisfactory. An ultrasound examination of her abdomen and external examination of her body confirmed that she had previously undergone surgery. General and biochemical blood tests concluded that her blood sugar level was a little higher than average. Following these examinations, she was diagnosed with chronic hepatitis C, type 2 diabetes, gallstones, a single cyst in the left kidney ( measuring 0. 91 cm) and pseudophakia (replacement of the natural lenses of the eyes with intraocular lenses). The Government provided the Court with copies of the results of the medical tests and examinations carried out that day.", "49. It further appears from the extracts of the first applicant ’ s detention facility medical records ( məhkumun tibbi kitabçası ) submitted by the Government that on 31 July 2014 the doctor recommended that the first applicant continue the medical treatment for diabetes prescribed by her previous doctor, the drug Galvus. She also had the rules of a diabetic diet explained to her and was provided with a blood glucose meter to monitor the level of sugar in her blood.", "50. On 2 August 2014 the first applicant was provided with medication brought in by her relatives, including 20 Galvus Met capsules, 90 Glifer capsules, 308 Galvus tablets, 30 Beloc tablets and 17 Spasmalgon tablets. The next delivery of medication, comprising 20 Spasmalgon tablets, took place on 29 August 2014. The first applicant ’ s need for medication during this period was fully covered by the medication delivered on 2 August 2014. As to the provision of diabetic food from 5 to 23 August 2014, upon her arrival at the detention facility, the first applicant was registered on a list of diabetic detainees and was consequently provided with diabetic food during this period.", "51. On 19 August 2014 she was examined by an endocrinologist in the detention facility, who recommended that she continue her previous treatment. On the same day she also underwent a blood test to determine her sugar level and the state of the hepatitis C. The Government provided the Court with copies of the results of the medical tests and examinations conducted that day.", "52. On 23 September 2014 she was examined by a detention facility doctor. She complained of general sickness without raising any particular complaints.", "53. On 8 and 10 October 2014 she was examined by a neurologist and a therapist. No pathological conditions were revealed.", "54. On 19 November 2014 the first applicant refused to be examined by an ophthalmologist at the National Ophthalmology Centre in order to establish the impact of the diabetes on her eyesight. According to the Government, on 25 and 26 November and 2 and 3 December 2014 she again refused to be examined by the detention facility doctors. They submitted various records compiled by the doctors to support this claim.", "55. On 11 December 2014 she was examined by an endocrinologist who assessed her state of health as stable. The Government did not submit any documents concerning this medical examination.", "56. On the same day she refused to undergo various medical examinations by a virologist, endocrinologist and physician from the Ministry of Health in the presence of the members of the joint working group on human rights and members of the public committee under the Ministry of Justice. However, she refused to sign anything to say that she had refused to be examined.", "57. On 12 December 2014 the first applicant ’ s lawyer lodged a request with the prosecution authorities, complaining of the deterioration of her state of health in detention and asking for a forensic medical examination. The lawyer submitted that her hepatitis C and diabetes were serious and that since her detention her weight had dropped dramatically from 61 to 47 or 48 kg. The lawyer also pointed out that, as the first applicant had not been provided with adequate medical care in detention, she refused to be examined by the detention facility doctors.", "58. On the same day the investigator in charge of the case ordered a forensic medical examination of the first applicant. The experts could only examine her on 8 January 2015 in the presence of her lawyer due to her initial refusal. They issued forensic medical report no. 424/KES, which indicated that the examination had begun on 18 December 2014 and ended on 28 January 2015. The report confirmed that the first applicant suffered from a number of illnesses, including hepatitis C and diabetes. However, the experts concluded that the illnesses were not life -threatening and could be treated in detention. The relevant part of the conclusion of the report reads as follows:", "“ 4. The illnesses revealed in L.Yunusova, being chronic in nature, do not pose any danger to her life and she does not currently need immediate and specialist treatment.", "5. If necessary, L. Yunusova can receive outpatient treatment in her conditions of detention in respect of the hepatitis C and diabetes which were diagnosed.", "6. L. Yunusova ’ s current state of health allows her to remain in detention and does not pose any danger to her life.”", "59. In the meantime, on 29 December 2014 the first applicant underwent a number of medical tests and examinations in the presence of C.W from Charité. In particular, she underwent a general and biochemical blood test, an ultrasound examination of the abdominal cavity, a chest computed tomography (CT ) scan, and electrocardiography and echocardiography examinations. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any information regarding medical recommendations or prescriptions made by the doctors following the examinations dated 29 December 2014.", "60. On 26 January 2015 the first applicant again underwent various medical tests and examinations. She was examined by a group of doctors, including international doctors C.W., L.U. ( a professor from the Budapest Metropolitan Cancer Centre ) and A.B. ( a gynaecologist ). The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant ’ s medical treatment.", "61. On 12 March 2015 she was examined in the presence of C.W. and Z.R. ( the director of ExaMed Medical Centre in Budapest ). On the same day, she underwent a blood test and gynaecological ultrasound examination. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant ’ s medical treatment.", "62. The extracts of the first applicant ’ s detention facility medical records contained further information concerning her state of health from 31 July 2014 to 12 March 2015:", "- On 19 and 20 September 2014 she was provided with the relevant medication brought in by her lawyer and friends.", "- On 22 September 2014 she complained of constant exhaustion, general sickness and weakness.", "- On 23 September 2014 she again complained of general sickness and stayed in bed. That day and the next she was examined by a prison doctor who assessed her state of health as satisfactory. In particular, it was established that her blood pressure, temperature and sugar level were within the permitted range.", "- On 30 September 2014 she was provided with medication for diabetes brought in by her friends.", "- On 3 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends.", "- On 8 and 10 October 2014 she was examined by a neurologist and a therapist. During the examination, she complained only of frequent urination.", "- On 17 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends.", "- On 25, 28 and 31 October 2014 she was provided with medication brought in by her friends.", "- On 15, 21, 25 and 26 November she refused to be examined.", "- On 12 December 2014 she was provided with medication brought in by her friends.", "- On 3, 13 and 16 December 2014 she refused to be examined.", "- On 19 December 2014 she complained of a migraine and stress, but refused to be examined by a doctor.", "- On 23 December 2014 she was provided with medication brought in by her friends.", "- On 29 December 2014 she was examined in compliance with international standards by a group of doctors, including an international doctor.", "- On 6, 7 and 10 January 2015 she did not complain about her state of health.", "(Illegible)", "- On 23 January 2015 she complained of headaches, but refused to be examined by a doctor.", "- On 26 January 2015 she was again examined by a group of international doctors.", "- (date illegible ) January 2015 she again refused to be examined by a doctor and was provided with medication brought in by her friends.", "- On 6 and 17 February 2015 she again refused to be examined.", "- On 19 February 2015 she complained of headaches.", "- On 12 March 2015 she was again examined by a group of doctors, including international doctors.", "2. The second applicant ’ s conditions of detention and medical care", "(a) The second applicant ’ s account", "63. The second applicant was detained alone in a cell at the Pre-trial Detention Facility of the Ministry of National Security.", "64. According to his lawyer, his state of health significantly deteriorated after his arrest. In particular, the domestic authorities had failed to provide him with adequate medical care in detention. He further submitted that in the absence of any information concerning the second applicant ’ s conditions of detention and medical care, it was impossible for him to give an account about either.", "(b) The Government ’ s account", "65. On 6 August 2014 the second applicant was admitted to the Pre-trial Detention Facility of the Ministry of National Security.", "66. He was held in a cell measuring 8 sq. m designed to hold two inmates. He was placed alone in the cell at his own request. The cell had two beds and was adequately lit and ventilated. He was provided with hot and cold water, bedding, clothing and other essentials.", "67. According to a letter by the governor of the detention facility dated 13 March 2015, heating was available and functioned well. The sanitary conditions were acceptable and the food served was of good quality. The second applicant also had the right to listen to the radio for five hours a day and to use the detention facility library. He was also entitled to receive one food parcel a week ( weighing up to 31.5 kg) from his relatives.", "68. Upon his arrival at the detention facility, the second applicant underwent a medical examination, during which he stated that he had suffered from arterial hypertension since 2006. However, he did not make any particular complaint about his state of health which was assessed as satisfactory.", "69. On 7 August 2014 the second applicant underwent an electrocardiography examination which did not reveal any problems.", "70. It further appears from a medical certificate dated 29 September 2014 from the head of the medical service of the detention facility that the second applicant ’ s state of health was satisfactory and that he had not sought medical attention during his pre-trial detention.", "E. The first applicant ’ s alleged ill-treatment in prison by prison guard and her cellmate", "1. The first applicant ’ s account of events", "71. On 7 August 2014 a repeat offender, N.H., was transferred to the applicant ’ s cell. After being transferred, N.H. frequently subjected the first applicant to verbal and physical violence. She complained to the administration, but no action was taken.", "72. On 19 September 2014 she lodged a request with the administration, complaining about N.H. ’ s unlawful behaviour. In particular, she complained that she had been subjected to physical violence and that the placement of a repeat offender in her cell was not in compliance with domestic law.", "73. On 23 September 2014 the first applicant was subjected to verbal and physical violence by Major Y., a prison guard.", "74. By a letter of 21 October 2014, the governor of the detention facility responded to the first applicant ’ s request of 19 September 2014. He claimed that she had not been subjected to violence by N.H. and that her conditions of detention complied with the established standards.", "2. The Government ’ s account of events", "75. Following publication in the media of information concerning the first applicant ’ s alleged beating in the detention facility, on 25 September 2014 an investigator from the Sabunchu District Prosecutor ’ s Office ordered a forensic medical examination. He asked experts to establish whether there were any signs of ill-treatment on the first applicant ’ s body.", "76. Following examinations on 29 September and 10 October 2014, the experts issued forensic medical report no. 285 dated 13 October 2014. They concluded that there were no signs of injury on the first applicant ’ s body.", "77. On 22 October 2014 the investigator in charge of the case refused to institute criminal proceedings, finding that there was no evidence that the first applicant had been subjected to violence in the detention facility. The decision relied on the conclusions of the forensic medical report of 13 October 2014, statements by the first applicant ’ s cellmates and video footage from the detention facility.", "78. No appeal was lodged against this decision.", "F. The Government ’ s monthly reports on the applicants ’ state of health", "79. Following the indication of the interim measure under Rule 39 of the Rules of Court by the Acting President of the Section on 30 September 2014, the Government responded by a letter dated 3 November 2014 submitting that the relevant domestic authorities had been immediately informed of the interim measure indicated by the Court under Rule 39. They further submitted that the applicants ’ state of health was stable and did not require their transfer to an appropriate medical facility. The letter also contained an overview of the medical examinations that the applicants had undergone in October 2014, although no medical documents were attached to the letter.", "80. The Government subsequently provided the Court with monthly information reports concerning the applicants ’ state of health and medical treatment in detention. All the monthly reports submitted were one or two pages long. They began in a standard format and said that “the applicants ’ state of health is stable and does not require [their] transfer to a specialist medical facility ”. They were not accompanied by any medical documents.", "81. The reports sent by the Government from November 2014 to June 2015 contained the same information in respect of the first applicant ’ s state of health and medical treatment as they submitted in their observations of 27 May 2015. As regards the second applicant ’ s state of health and medical treatment, all the reports contained the two following sentences :", "“ Over the past month, the second applicant ’ s state of health was under constant medical supervision, and it was assessed as satisfactory; no deterioration in his health has been noted.", "(date), the second applicant passed [his] latest general medical examination, which did not reveal any deterioration in his health. ”", "82. As regards the subsequent reports, the two-page report dated 30 July 2015 indicated that on 13 July 2015 the first applicant had been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. recommended that the first applicant take Harvoni and she started treatment with this drug on 14 July 2015. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached to the information report.", "83. The two-page report dated 7 September 2015 indicated that on 14 August 2015 the first applicant had again been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. prescribed the drug Velmetia for the regulation of her blood sugar level. As regards the second applicant, in addition to the above-mentioned two sentences, the report indicated that on 3 August 2015 at a court hearing, the second applicant had asked for medical help. His blood pressure had been 210/110 mm Hg and could be stabilised following the intervention of the emergency services. The hearing had been postponed upon a doctor ’ s advice. No medical documents were attached to the information report.", "84. The one-page report dated 6 October 2015 indicated that the first applicant had finished her medical treatment with Harvoni. The report also contained information relating to her blood pressure and sugar level. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached.", "85. The reports dated 19 November and 2 December 2015 contained information relating to the first applicant ’ s blood pressure and sugar level and indicated that on 3 and 7 October 2015 the first applicant had refused to be examined by the doctors. On 30 October 2015 she had been examined by C.W, at whose request she had been transferred to the medical department of the Prison Service. As regards the second applicant, he had been examined by C.W on 30 October 2015. His blood pressure had been 224/122 mm Hg and he had been prescribed with the relevant medical treatment. On 2 November 2015 he had been transferred to the medical department of the Prison Service, where he had received the necessary medical treatment. Following this treatment, his blood pressure had lowered to 160/110 mm Hg. No medical documents were attached to the information report.", "G. The applicants ’ criminal conviction and subsequent release from detention", "86. On an unspecified date the criminal investigation was completed and the applicants ’ case was referred to the Baku Assize Court for trial.", "87. On 13 August 2015 it convicted and sentenced the applicants to eight and a half and seven years ’ imprisonment respectively.", "88. On an unspecified date the applicants appealed against this judgment to the Baku Court of Appeal.", "89. It appears from the information submitted by the Government that on an unspecified date the medical department of the Prison Service requested the Baku Court of Appeal to change the second applicant ’ s detention pending trial due to his emotional state and the possible repeat of hypertensive crisis. The Government did not provide the Court with a copy of this request.", "90. On 12 November 2015 the Baku Court of Appeal granted the request and ordered the second applicant ’ s release. The Court was not provided with a copy of this decision.", "91. On 9 December 2015 the Baku Court of Appeal quashed the Baku Assize Court ’ s judgment of 13 August 2015 and gave the applicants a conditional sentence of five years ’ imprisonment. The first applicant was released from the court." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitution of the Republic of Azerbaijan", "92. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads:", "“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”", "B. Code of Criminal Procedure (“the CCrP”)", "93. In accordance with Article 37 of the CCrP, criminal proceedings are instituted on the basis of a complaint by the victim of a criminal offence. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings may challenge the actions or decisions of the prosecution authorities before a court. Article 449 provides that a victim or his counsel may challenge such actions or decisions as, inter alia, the prosecution authorities ’ refusal to institute criminal proceedings or to terminate them. The judge examining the lawfulness of the prosecution authorities ’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). This decision is amenable to appeal in accordance with the procedure established in Articles 452 and 453 of the CCrP.", "C. Internal Disciplinary Rules of Pre-trial Detention Facilities adopted by Decision No. 63 of 26 February 2014 of the Cabinet of Ministers", "94. Section 9 provides that detainees are entitled to receive one parcel a week. Detainees suffering from serious illness (if there is a medical report) are entitled to receive an unlimited number of parcels. Section 9.3 requires the person who provides a detainee with a parcel to identify him or herself, without requiring him or her to show any family or other link between them.", "D. List of Serious Illnesses Precluding the Detention of Prisoners adopted by the Ministry of Health on 26 October 2010", "95. Section 6.2 indicates that grade 3 hypertension is among the serious illnesses precluding the detention of prisoners if it leads to one of the three following situations: recurrent transmural myocardial infarction (6.2.1), third -stage circulatory inefficiency (6.2.2) or end-stage kidney failure (6.2.3).", "E. Code of Administrative Procedure (“the CAP”) and the domestic remedy invoked by the Government", "96. The CAP, adopted on 30 December 2009, entered into force on 1 January 2011. Article 2 sets out the procedural rules relating to administrative law disputes, including those concerning the acts, actions or inactions of administrative organs affecting individuals ’ rights and liberties. Following the entry into force of the CAP, on 10 June 2011 Chapter XXVI of the Code of Civil Procedure establishing the procedural rules relating to disputes between individuals and administrative organs was deleted.", "97. Under the CAP, an action may be lodged to dispute the lawfulness of an administrative act (Article 32), to request the court to require an administrative organ to adopt an administrative act (Article 33), or to request the court to require an administrative organ to take action other than the adoption of an administrative act or refrain from taking certain action (Article 34).", "98. Chapter VII establishes the rules relating to the application of temporary defence measure ( müvəqqəti xarakterli müdafiə tədbiri ). In particular, under Article 40, an interested party may request a court to apply a temporary defence measure. Requests may be submitted before lodging a complaint with the court or in the course of the administrative proceedings (Article 40.1). The court may grant an injunction requiring the respondent party to take or refrain from certain action, or to tolerate certain action (Article 40.3). If the interested party lodges an administrative complaint with an administrative organ, the request for application of a temporary defence measure must be lodged with the same administrative organ. If the latter does not grant the request within fifteen days, the interested party may complain to a court under the procedure established in Articles 40.1 and 40.2 (Article 40.4). The CAP does not, however, provide any specific time ‑ limit for the examination of a request for application of a temporary defence measure by the domestic courts.", "99. The Government provided a copy of a decision of Baku Administrative Economic Court No. 1 dated 24 July 2012 ( A.I. v. the Prison Service of the Ministry of Justice ), submitting that the decision in question constituted an example of the effectiveness of one of several available domestic remedies. In that case, a first - instance court, in the course of the administrative proceedings, decided to apply a temporary defence measure ordering the Prison Service to transfer a detainee to a medical facility for ten days to undergo surgery. The Government did not provide any further information about the final outcome of those proceedings.", "III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS", "A. Extracts from the 3 rd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) covering the period 1 January to 31 December 1992", "100. The requirements concerning the organisation of health care services in detention facilities were described by the CPT in its 3 rd General Report (CPT/Inf (93) 12 - Publication Date: 4 June 1993). The relevant part of the Report reads as follows:", "“ a. Access to a doctor", "33. When entering prison, all prisoners should without delay be seen by a member of the establishment ’ s health care service. In its reports to date the CPT has recommended that every newly arrived prisoner be properly interviewed and, if necessary, physically examined by a medical doctor as soon as possible after his admission. It should be added that in some countries, medical screening on arrival is carried out by a fully qualified nurse, who reports to a doctor. This latter approach could be considered as a more efficient use of available resources.", "It is also desirable that a leaflet or booklet be handed to prisoners on their arrival, informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene.", "34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay.", "...", "35. A prison ’ s health care service should at least be able to provide regular out ‑ patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds) ... Further, prison doctors should be able to call upon the services of specialists.", "As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification.", "Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.", "36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital.", "...", "b. Equivalence of care", "i) general medicine", "38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.", "There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).", "39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient ’ s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.", "Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.", "40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.", "...", "c. Patient ’ s consent and confidentiality", "45. Freedom of consent and respect for confidentiality are fundamental rights of the individual. They are also essential to the atmosphere of trust which is a necessary part of the doctor/patient relationship, especially in prisons, where a prisoner cannot freely choose his own doctor.", "i) patient ’ s consent", "46. Patients should be provided with all relevant information (if necessary in the form of a medical report) concerning their condition, the course of their treatment and the medication prescribed for them. Preferably, patients should have the right to consult the contents of their prison medical files, unless this is inadvisable from a therapeutic standpoint.", "They should be able to ask for this information to be communicated to their families and lawyers or to an outside doctor.", "47. Every patient capable of discernment is free to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances which are applicable to the population as a whole.", "...", "ii) confidentiality", "50. Medical secrecy should be observed in prisons in the same way as in the community. Keeping patients ’ files should be the doctor ’ s responsibility.", "51. All medical examinations of prisoners (whether on arrival or at a later stage) should be conducted out of the hearing and - unless the doctor concerned requests otherwise - out of the sight of prison officers. Further, prisoners should be examined on an individual basis, not in groups. ... ”", "B. Extracts from Recommendation (Rec(2006)2) of the Committee of Ministers to Member States on the European Prison Rules, adopted on 11 January 2006 (“ the European Prison Rules”)", "101. The European Prison Rules provide a framework of guiding principles for health services. The relevant extracts from the Rules read as follows:", "“ Part I", "Basic principles", "1. All persons deprived of their liberty shall be treated with respect for their human rights.", "2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.", "3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.", "4. Prison conditions that infringe prisoners ’ human rights are not justified by lack of resources.", "...", "Scope and Application", "10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.", "...", "Part III", "Health", "Health care", "39. Prison authorities shall safeguard the health of all prisoners in their care.", "Organisation of prison health care", "40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation.", "40.2 Health policy in prisons shall be integrated into, and compatible with, national health policy.", "40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.", "40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.", "40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.", "Medical and health care personnel", "41.1 Every prison shall have the services of at least one qualified general medical practitioner.", "41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.", "...", "41.4 Every prison shall have personnel suitably trained in health care.", "...", "Duties of the medical practitioner", "42.1 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission, and shall examine them unless this is obviously unnecessary.", "...", "42.3 When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to:", "a. observing the normal rules of medical confidentiality;", "b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment;", "c. recording and reporting to the relevant authorities any sign or indication that prisoners may have been treated violently;", "...", "43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.", "...", "Health care provision", "46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison.", "46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.”", "C. Extracts from the UN Committee Against Torture ’ s concluding observations on the fourth periodic report of Azerbaijan", "102. In November 2015 the UN Committee Against Torture considered the fourth periodic report of Azerbaijan (CAT/C/ AZE/4 ) and adopted, inter alia, the following concluding observations at its 1382 nd meeting (CAT/C/SR.1382) held on 26 November 2015:", "“ Arbitrary imprisonment and ill-treatment of human rights defenders", "10. The Committee is deeply concerned by consistent and numerous allegations that a number of human rights defenders have been arbitrarily deprived of their liberty, subjected to ill-treatment, and in some cases have been denied adequate medical treatment in retaliation for their professional activities, such as: Leyla and Arif Yunus ...", "11. The State party should:", "(a) Investigate promptly, thoroughly and impartially all allegations of arbitrary arrest, denial of adequate medical treatment, and torture or ill treatment of human rights defenders, including those listed above, prosecute and punish appropriately those found guilty, and provide the victims with redress;", "(b) Release human rights defenders who are deprived of their liberty in retaliation for their human rights work; ”", "D. Joint Statement of the UN Special Rapporteurs and the Chair ‑ Rapporteur of the UN Working Group on Arbitrary Detention dated 20 August 2015", "103. On 20 August 2015 the UN Special Rapporteurs on the situation of human rights defenders, on the rights to freedom of peaceful assembly and of association, on freedom of opinion and expression, on the independence of judges and lawyers and on the right to health made a joint statement with the Chair-Rapporteur of the UN Working Group on Arbitrary Detention condemning the applicants ’ criminal conviction. They expressed concern about the serious deterioration of the applicants ’ health during their extended period of pre-trial detention and called “on the Azerbaijani authorities to immediately provide them with adequate medical care”.", "THE LAW", "I. ARTICLE 34 OF THE CONVENTION", "104. The applicants complained that the Government had failed to comply with the letter and spirit of the interim measure indicated by the Court under Rule 39 and had thus violated their right of individual application. They relied on Article 34 of the Convention, which reads as follows:", "“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”", "Rule 39 of the Rules of Court provides:", "“1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.", "2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers.", "3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated.", "4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures. ”", "A. The parties ’ submissions", "105. The Government disputed the applicants ’ submissions, pointing out that they had complied with the interim measure indicated by the Court. In this connection, they maintained that they had submitted all the material and documents concerning the applicants ’ state of health.", "106. They further submitted that, although all the monthly information reports concerning the applicants ’ state of health had been forwarded to the applicants by the Court, the applicants had failed to comment or to request any further information about them in this regard from the Government. In these circumstances, the applicants had been precluded from raising a complaint in their observations concerning the implementation of the interim measure.", "107. The applicants argued that the Government had failed to comply with the interim measure indicated by the Court on 30 September 2014. In this connection, they noted that, although the interim measure had indicated to the Government to inform the Court, on a monthly basis, of the applicants ’ state of health and medical treatment, they had failed to provide any medical evidence in this respect. In particular, they pointed out that the Government had contented themselves with repeating in their very brief monthly reports sent to the Court that “the applicants ’ state of health was satisfactory and stable” or “the applicants ’ state of health was under constant medical supervision ”, without submitting any documents concerning the medical prescriptions or recommendations of the doctors who had examined them.", "108. They further submitted that the Government ’ s failure to provide the Court with medical evidence regarding their state of health had fundamentally undermined the protective purpose of the interim measure in question. They noted in this connection that the Court had indicated to the Government to provide the first applicant with adequate medical treatment in prison and, if such treatment was unavailable in prison, to ensure her immediate transfer to an appropriate medical facility for the duration of the proceedings before the Court. However, the Government ’ s failure to provide the Court with medical evidence regarding her medical treatment in prison had made it impossible for the Court to assess whether she had been provided with adequate medical treatment or whether such treatment had been unavailable in prison and that she should be transferred to an appropriate medical facility.", "B. The Court ’ s assessment", "1. General principles", "109. The Court reiterates that, pursuant to Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, and this has been consistently reaffirmed as a cornerstone of the Convention system (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005 ‑ I ). Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there are positive obligations inherent in Article 34 requiring the authorities to furnish all the necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in situations where applicants are particularly vulnerable (see Naydyon v. Ukraine, no. 16474/03, § 63, 14 October 2010; Savitskyy v. Ukraine, no. 38773/05, § 156, 26 July 2012; and Iulian Popescu v. Romania, no. 24999/04, § 33, 4 June 2013).", "110. According to the Court ’ s established case-law, a respondent State ’ s failure to comply with an interim measure entails a violation of the right of individual application. The Court cannot emphasise enough the special importance attached to interim measures in the Convention system. Their purpose is not only to enable an effective examination of the application to be carried out, but also to ensure that the protection afforded to the applicant by the Convention is effective. Such measures subsequently allow the Committee of Ministers to supervise the execution of the final judgment. Interim measures thus enable the State concerned to discharge its obligation to comply with the final judgment of the Court, which is legally binding by virtue of Article 46 of the Convention (see Mamatkulov and Askarov, cited above, § 125; Khloyev v. Russia, no. 46404/13, § 60, 5 February 2015; and Patranin v. Russia, no. 12983/14, § 46, 23 July 2015).", "111. The crucial significance of interim measures is further highlighted by the fact that the Court issues them, as a matter of principle, only in truly exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most of these cases, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm in breach of the core provisions of the Convention. The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also commands that the utmost importance be attached to the question of the States Parties ’ compliance with the Court ’ s indications in that regard (see Amirov v. Russia, no. 51857/13, § 67, 27 November 2014, and Khloyev, cited above, § 61).", "112. A complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions 1998 ‑ IV, and Cooke v. Austria, no. 25878/94, § 46, 8 February 2000). Article 34 will be breached if the authorities of a Contracting State fail to take all the steps which could reasonably be taken in order to comply with an interim measure indicated by the Court (see Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009 ). It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation (see Paladi, cited above, § 92; Gror v. Albania, no. 25336/04, § 18 4, 7 July 2009; and Patranin, cited above, § 48 ).", "2. Application to the present case", "113. The Court notes that in the present case, on 30 September 2014 it decided to indicate to the Azerbaijani Government, under Rule 39 of the Rules of Court, in the interests of the parties and the proper conduct of the proceedings before the Court, to provide both applicants with adequate medical treatment in prison, and, if such treatment was unavailable in prison, to ensure that the first applicant was immediately transferred to an appropriate medical facility for the duration of the proceedings before the Court. The Court also requested the Government to inform it, on a monthly basis, of the applicants ’ state of health and medical treatment.", "114. Following the indication of the interim measure, on 3 November 2014 the Government provided the Court with a letter containing an overview of the medical examinations that the applicants had undergone in October 2014. The letter indicated that the applicants ’ state of health was stable and did not require their transfer to a specialist medical facility. No medical documents were attached.", "115. Similar letters containing general information about the applicants ’ state of health and medical examinations in detention had been sent monthly by the Government to the Court from November 2014 to December 2015 (see paragraphs 79-85 above). However, none of them contained any medical documents concerning the medical treatment provided to the applicants in prison.", "116. In this connection, the Court observes that the Government did not dispute their obligation under Article 34 of the Convention to comply with the interim measure indicated by the Court. Rather, they disputed the applicants ’ submissions and insisted that they had complied with the interim measure in its entirety by informing the Court, on a monthly basis, of the applicants ’ state of health and medical treatment and submitting all the material and documents in this respect.", "117. However, the Court is not convinced by the Government ’ s argument and notes at the outset that it cannot accept their submissions that all the material and documents concerning the applicants ’ state of health and medical treatment had been submitted to the Court. In particular, it observes that, although from November 2014 to December 2015 the Government sent monthly reports to the Court containing information about the applicants ’ state of health and medical treatment, none of them contained any medical documents in support of the information submitted. The only medical documents submitted by the Government following the indication of the interim measure were those submitted in their observations of 27 May 2015 concerning the results of the applicants ’ medical tests and examinations conducted between their arrest and 12 March 2015.", "118. In this connection, the Court reiterates that whilst the formulation of an interim measure is one of the elements to be taken into account in the Court ’ s analysis of whether a State has complied with its obligations under Article 34, the Court must have regard not only to the letter but also to the spirit of the interim measure indicated (see Paladi, § 91, and Patranin, § 52, both cited above ) and, indeed, to its very purpose. The Court notes in this respect that the main purpose of the interim measure in the present case ‑ and the Government did not claim to be unaware of this – was to prevent the applicants ’ exposure to inhuman and degrading suffering in view of their poor health and to ensure that they received adequate medical treatment in prison. In these circumstances, it was crucial for the Court to be provided information by the Government on a regular basis concerning the applicants ’ state of health supported by the relevant medical documents, without which the Court would not be able to assess the quality of the treatment the applicants received in prison and the adequacy of the conditions of their detention for their medical needs. In this connection, the Court agrees with the applicants ’ argument that the Government ’ s failure to provide the Court with medical evidence regarding their state of health had made it impossible for the Court to assess whether the first applicant was receiving adequate medical treatment, or, whether such treatment was unavailable in prison and that she should be transferred to an appropriate medical facility, as indicated by the interim measure of 30 September 2014.", "119. The Court thus considers that the Government ’ s failure to provide the Court with the relevant medical documents with their monthly information reports impaired the very purpose of the interim measure, preventing it from being able to establish whether the applicants were receiving adequate medical treatment in detention as required by the interim measure. Moreover, the Government did not explain their failure to comply with the interim measure nor did they demonstrate any objective impediment preventing compliance with it.", "120. Consequently, the Court concludes that in the present case the State has failed to comply with the interim measure indicated under Rule 39 of the Rules of Court, in breach of its obligation under Article 34 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS REGARDS THE APPLICANTS ’ MEDICAL TREATMENT IN DETENTION", "121. The applicants complained that they had not been provided with adequate medical treatment in detention and that their state of health had been incompatible with their conditions of detention. Article 3 of the Convention provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. The parties ’ submissions", "122. The Government submitted that the applicants had failed to exhaust domestic remedies, without specifying which remedies had been effective and available. In this connection, they submitted in a general manner that the applicants had failed to bring before the domestic authorities the complaints made subsequently to the Court.", "123. The Government further relied on the case of A.I. v. the Prison Service of the Ministry of Justice, pointing out that the decision in question represented an example of the effectiveness of one of several available domestic remedies.", "124. The applicants disagreed with the Government ’ s submissions and reiterated their complaints. They noted that there had been no effective domestic remedies in respect of their complaints relating to their medical treatment in detention and the compatibility of their state of health with their conditions of detention. In this connection, they submitted that the Government had failed to demonstrate that there had been an effective remedy available both in theory and in practice capable of providing redress in respect of their complaints and offering reasonable prospects of success.", "2. The Court ’ s assessment", "125. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should be made first to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, although there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996 ‑ IV, and Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports 1996-VI). Moreover, where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012, and Dirdizov v. Russia, no. 41461/10, § 73, 27 November 2012 ).", "126. As regards the distribution of the burden of proof, it is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others, cited above, § 68, and Muradova v. Azerbaijan, no. 22684/05, § 84, 2 April 2009).", "127. Turning to the circumstances of the present case, the Court observes at the outset that the Government merely noted that the applicants had not lodged any complaints concerning their medical treatment in detention. They neither specified what type of remedy would have been an effective remedy in their view, nor provided any further information as to how such a remedy could have prevented the alleged violation or its continuation or provided the applicants with adequate redress ( compare Popov v. Russia, no. 26853/04, § 205, 13 July 2006).", "128. Inasmuch as the Government ’ s contention that the case of A.I. v. the Prison Service of the Ministry of Justice constituted an example of the effectiveness of one of several available domestic remedies could be understood to mean that the applicants should have lodged a complaint against the Prison Service under the CAP in the domestic courts, the Court observes at the outset that under the CAP a complaint may be lodged with the domestic courts against any administrative act, action or inaction of an administrative organ violating individuals ’ rights and liberties. The Court further observes that, although Article 40 of the CAP allows a judge to grant an injunction as a temporary defence measure requiring the respondent party to take or refrain from taking some action, no specific time- limit was provided for the examination of a request for application of a temporary defence measure (see paragraph 9 8 above). In this connection, the Court considers that, even assuming that such a complaint constituted an effective remedy in theory, the Government failed to show the existence of settled national case-law that would prove the effectiveness of the remedy in question, particularly as regards complaints concerning medical treatment in detention.", "129. The Court reiterates that, in order to be “effective”, a remedy must be available not only in theory but also in practice. This means that the Government should normally be able to illustrate the practical effectiveness of the remedy with examples of domestic case-law (see Dirdizov, cited above, § 88). In the present case, the Government relied solely on the decision of Baku Administrative Economic Court No. 1 dated 24 July 2012, in which a temporary defence measure was ordered under Article 40 of the CAP to transfer a detainee from a penal facility to a medical facility to undergo surgery (see paragraph 99 above). However, the decision in question did not recognise the violation of the detainee ’ s rights on account of a lack of medical treatment in prison or the incompatibility of his state of health with the conditions of detention. Nor did it provide the detainee with adequate redress for the violation. In any event, the Court reiterates that a single case cited by the Government is insufficient to show the existence of settled domestic practice that would prove the effectiveness of a remedy (see Horvat v. Croatia, no. 51585/99, § 44, ECHR 2001 ‑ VIII, and Varga and Others v. Hungary, nos. 14097/12, 45135/12, 73712/12, 34001/13, 44055/13, and 64586/13, § 53, 10 March 2015 ). It follows that the Court cannot but conclude, on the basis of the information before it, that a complaint under the CAP before the domestic courts could not be considered an effective remedy.", "130. For the above reasons, the Court finds that the complaint cannot be rejected for non-exhaustion of domestic remedies. It considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "131. The Government claimed that the applicants had received comprehensive medical treatment in detention. They submitted that the applicants had been under constant medical supervision and that there had been no deterioration in their health. They referred in this connection to various medical examinations that the applicants had undergone during their detention. As to the first applicant, the Government relied on the results of examinations on 31 July, 19 August, 12 November and 29 December 2014, as well as on 26 January and 12 March 2015. They also submitted an undated note signed by C.W. indicating that her medical examinations had been conducted in his presence in accordance with the internationally accepted diagnostic rules and that he had been immediately informed of their results. The Government further referred to the first applicant ’ s “ bad faith ” in refusing on many occasions to be seen by the doctors.", "132. As to the second applicant, the Government submitted that he had undergone a monthly general medical examination, but these had not revealed any deterioration in his health. In this connection, they submitted the results of an undated blood test and a biochemical test, as well as three undated electrocardiographs.", "133. The Government also submitted that the applicants ’ conditions of detention complied with international standards. In particular, the first applicant was held with four other detainees in a cell measuring 26.32 sq. m designed to hold six detainees. The cell was adequately lit and ventilated. She was provided with food, water, bedding, clothing and other essentials. As regards the second applicant, he was held alone in a cell measuring 8 sq. m designed to hold two inmates. The cell was adequately lit and ventilated. He was provided with hot and cold water, bedding, clothing and other essentials.", "134. The applicants disagreed with the Government ’ s submissions, arguing that they had not been provided with the requisite medical assistance in detention. In this connection, they complained that they had been unable to obtain effective medical care, which had led to a serious deterioration in their condition and subjected them to severe physical and mental suffering. They also complained that their conditions of detention had not been adapted to their state of health.", "135. As regards the first applicant, the applicants noted that, although she had been examined on several occasions by C.W. within the framework of the Government ’ s cooperation with the European Parliament, the Government had failed to provide her or the Court with the medical recommendations or prescriptions made by C.W. following these examinations. Moreover, when on 21 February 2015 they had directly asked C.W., through their lawyers, for the documents in question, they could not obtain them. C.W. had indicated that confidentiality was a strict condition of his cooperation with the European Parliament and that, in the event of information being leaked out, he would be prevented from entering Azerbaijan for subsequent examinations of the first applicant. They also rejected the Government ’ s reliance on the first applicant ’ s “ bad faith ” in refusing to be seen by the doctors, noting that her refusal had been a protest against the lack of adequate medical treatment and her unlawful detention. As regards the adaptation of the first applicant ’ s conditions of detention to her state of health, the applicants submitted that she had been deprived of diabetic food and medication from 5 to 23 August 2014. Moreover, although the Government submitted that she had been provided with special diabetic food, they had failed to specify what had actually been given to her. They also submitted that, even assuming that the cell in which she had been detained had measured more than 20 sq. m as submitted by the Government, its size could not be considered sufficient for a detainee such as her suffering from diabetes. In particular, she had not had enough space for physical activity despite the fact that one of the treatments for diabetes was taking exercise.", "136. As regards the second applicant, the applicants submitted that his state of health had been incompatible with his detention. In particular, they noted that, although he had suffered from grade 3 chronic hypertension, which was an illness precluding detention in prison, he had been unlawfully detained. They further submitted that the Government had failed to submit any medical documents proving that the second applicant had been provided with adequate medical treatment in detention and had contented themselves with noting that he was “under constant medical supervision ” and that his state of health “was assessed as satisfactory”. They had also failed to submit any information as to whether his detention environment had been adapted to his state of health.", "2. The Court ’ s assessment", "(a) General principles", "137. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s conduct (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Assessment of this minimum level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers, cited above, § 74).", "138. The State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, § 94, and Popov, cited above, § 208 ). In exceptional cases, where a detainee ’ s state of health is absolutely incompatible with his or her detention, Article 3 may require the release of that person under certain conditions (see Rozhkov v. Russia, no. 64140/00, § 104, 19 July 2007). However, Article 3 cannot be construed as laying down a general obligation to release detainees on health grounds. It rather imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical assistance (see Sarban v. Moldova, no. 3456/05, § 77, 4 October 2005, and Khudobin v. Russia, no. 59696/00, § 93, ECHR 2006-XII (extracts)). Medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, 2 3 March 2016). A lack of appropriate medical care and, more generally, the detention in inappropriate conditions of a person who is ill, may in principle amount to treatment contrary to Article 3 (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000­VII, and Helhal v. France, no. 10401/12, § 48, 19 February 2015 ).", "139. In cases in which there are conflicting accounts of events, the Court is inevitably confronted, when establishing the facts, with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is to rule not on criminal guilt or civil liability but on Contracting States ’ responsibility under the Convention. The specific nature of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention ‑ conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all the evidence, including such inferences as may flow from the facts and the parties ’ submissions. In accordance with its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specific nature of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012, and the cases cited therein).", "140. Furthermore, it should be pointed out that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events at issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries, damage and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Oleg Nikitin v. Russia, no. 36410/02, § 45, 9 October 2008). In the absence of such an explanation the Court can draw inferences which may be unfavourable for the respondent Government (see, for instance, Orhan v. Turkey, no. 25656/94, § 274, 18 June 2002, and Buntov v. Russia, no. 27026/10, § 161, 5 June 2012).", "(b) Application of these principles to the present case", "141. The Court observes at the outset that the first applicant was detained from 31 July 2014 to 9 December 2015 and the second applicant was detained from 5 August 2014 to 12 November 2015. The medical evidence in the case file confirmed – and it was not disputed by the parties – that, when detained, the applicants had several serious medical problems. In particular, the first applicant suffered from chronic hepatitis C, type 2 diabetes, gallstones, a single cyst in the left kidney ( measuring 0. 91 cm) and pseudophakia (replacement of the natural lenses of the eyes with intraocular lenses). The second applicant suffered from grade 3 chronic hypertension and hypertensive crisis with an increased risk of cardiovascular complications. However, contrary to the applicants ’ allegations, it does not appear from the medical evidence in the case file that the second applicant suffered from a type of grade 3 chronic hypertension leading to one of the three situations indicated in the List of Serious Illnesses Precluding the Detention of Prisoners (see paragraph 95 above). The Court thus notes that, although nothing suggests that these diseases were in principle incompatible with detention, it is clear that they required appropriate medical care on a regular, systematic and comprehensive basis.", "142. In these circumstances, as in most cases concerning the detention of persons who are ill, the Court shall examine whether or not the applicants in the present case received adequate medical assistance in detention. The Court reiterates in this regard that the “adequacy” of medical assistance remains the most difficult element to determine. The mere fact that a detainee was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 116, 29 November 2007, and Jeladze v. Georgia, no. 1871/08, § 42, 18 December 2012 ). The authorities must also ensure that diagnosis and care are prompt and accurate (see Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011) and that, where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee ’ s health problems or preventing their aggravation (see Poghosyan v. Georgia, no. 9870/07, § 59, 24 February 2009, and Visloguzov v. Ukraine, no. 32362/02, § 69, 20 May 2010). The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through (see Hummatov, § 116, and Jeladze, § 42, both cited above ).", "143. The Court observes that the applicants were immediately examined by a doctor and underwent various medical tests upon their admission to the detention facilities and that their diagnoses were prompt and accurate. However, it notes that, although the domestic authorities were aware of the applicants ’ poor health from the very beginning of their detention, it does not appear from the case file that they were provided with adequate medical treatment in detention.", "144. In this connection, the Court firstly observes that during the first few months of her detention, from August to November 2014, the first applicant was examined only once on 19 August 2014 by a specialist endocrinologist, who advised her to continue her previous treatment against diabetes without making any further recommendations (see paragraph 51 above). In particular, although she suffered from chronic hepatitis C, she was not examined by a virologist. It appears that during that period the main medical assistance provided to her by the detention facility medical unit was the transfer of the medication brought in by her friends and occasional examinations with the prison doctor when she complained about her state of health (see paragraph 62 above).", "145. As to the adequacy of the first applicant ’ s subsequent medical examinations by C.W. and the other doctors, it is clear from the documents in the case file that from 29 December 2014 she was regularly examined by C.W. and underwent various medical tests. However, the Court cannot consider on the basis of this fact alone that her medical treatment was adequate. In this connection, the Court firstly refers to its above-mentioned findings concerning the Government ’ s failure to comply with the interim measure indicated by the Court on 30 September 2014 (see paragraphs 11 3 ‑ 1 20 above). Moreover, when communicating this case, the Court also asked the Government to provide full information on the medical treatment received by the applicants in respect of all their health problems. However, neither the Court nor the applicants were provided with the medical prescriptions or recommendations made by C.W. or the other doctors following these medical examinations and the Government contented themselves with submitting an undated note signed by C.W., according to which the first applicant ’ s medical examinations were conducted in compliance with international standards. No explanation was given by the Government for this failure. The Court also notes that these findings are also relevant to the second applicant ’ s case. In fact, although the Government argued that the second applicant had been provided with adequate medical treatment throughout his detention, neither the Court nor the applicants were provided with any medical prescriptions or recommendations concerning his medical treatment in detention.", "146. The Court considers that this failure on the part of the Government to provide the Court with full information on the medical treatment received by the applicants in respect of all their health problems deprived it of the ability to examine whether the treatment prescribed to the applicants in the present case was comprehensive therapeutic strategy aimed at adequately treating their health problems. It can therefore draw inferences from the Government ’ s conduct and finds that the applicants were not provided with adequate medical treatment in detention. In this connection, the Court also considers it necessary to reiterate that the fact that the applicants were left without the relevant information in respect of their illnesses, and thus were kept in the dark about their state of health and deprived of any control over it, must have caused them perpetual anguish and fear (see Testa v. Croatia, no. 20877/04, § 52, 12 July 2007).", "147. Furthermore, the Court cannot overlook the fact that the Government also failed to show that the necessary conditions were created for any medical treatment prescribed to the applicants to actually be followed through, except for the fact that the first applicant was provided with a blood glucose meter in the detention facility. In particular, although it was clear in view of the nature of the applicants ’ illnesses that they should follow a diet, the Government failed to specify what kind of food the applicants had been provided in detention. In general, there is no indication that the applicants ’ detention environment was adapted to their state of health.", "148. As regards the Government ’ s argument relating to the first applicant ’ s “ bad faith ”, the Court notes that she did indeed refuse to be seen by the doctors on several occasions. However, it does not attach significant importance to that fact, taking into account that by that time more three months had elapsed of not being provided with adequate medical assistance in detention and that her refusal was a protest against this lack of medical assistance (see paragraph 144 above). Moreover, there was no indication that when she was examined by C.W. and the other specialists or underwent comprehensive medical examinations she refused to co-operate with the doctors. Accordingly, the Court cannot conclude that her refusal to accept medical treatment in such conditions could be interpreted as “ bad faith ” (see Holomiov v. Moldova, no. 30649/05, § 119, 7 November 2006).", "149. As to the Government ’ s argument that there was no deterioration in the applicants ’ health in detention, the Court observes that this argument is contradicted by the very fact that the applicants were transferred to the medical department of the Prison Service at the request of the doctors (see paragraph 85 above). Moreover, the second applicant was released from detention precisely on health grounds at the request of the medical department of the Prison Service. The Government also did not dispute the fact that the first applicant lost a considerable amount of weight during her detention. In any event, the Court points out that it is not necessary to show that a failure to provide requisite medical assistance led to a medical emergency or otherwise caused severe or prolonged pain to find that a detainee was subjected to treatment incompatible with the guarantees of Article 3. The fact that a detainee needed and requested such assistance but it was unavailable to him may, in certain circumstances, suffice to conclude that such treatment was degrading within the meaning of that Article (see Davtyan v. Armenia, no. 29736/06, § 88, 31 March 2015).", "150. The Court thus finds that the applicants did not receive adequate medical treatment for their illnesses while in detention (see, a contrario, Tymoshenko v. Ukraine, no. 49872/11, §§ 214-219, 30 April 2013). It believes that, as a result of this lack of adequate medical treatment, they were exposed to prolonged mental and physical suffering diminishing their human dignity. The authorities ’ failure to provide them with the medical care they needed amounts to inhuman and degrading treatment within the meaning of Article 3 of the Convention.", "151. There has, accordingly, been a violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION CONCERNING THE FIRST APPLICANT ’ S ILL-TREATMENT IN PRISON BY A PRISON GUARD AND HER CELLMATE", "152. The first applicant complained that she had been beaten by a prison guard on 23 September 2014 and subjected to verbal and physical violence by a repeat offender placed in her cell, and that the domestic authorities had not carried out an effective investigation in this respect. Article 3 of the Convention provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "153. The Government submitted that the first applicant had failed to exhaust domestic remedies in respect of her ill-treatment allegation. In particular, they pointed out that the Sabunchu District Prosecutor ’ s Office had launched a criminal inquiry into the first applicant ’ s alleged ill ‑ treatment in prison and that on 22 October 2014 the investigator in charge of the case had refused to institute criminal proceedings for lack of evidence. However, the first applicant had never challenged this decision before the domestic courts.", "154. The first applicant disagreed with the Government ’ s submissions and maintained her complaint.", "155. The Court observes that in the present case, following the first applicant ’ s complaints to the domestic authorities and the publication in the media of information about her alleged ill-treatment in prison, the prosecution authorities launched a criminal inquiry. However, by a decision of 22 October 2014 the Sabunchu District Prosecutor ’ s Office refused to institute criminal proceedings for lack of evidence to support the allegations. As with any decision by the prosecution authorities concerning a refusal to institute or to discontinue criminal proceedings, this decision was amenable to appeal before the domestic courts (see paragraph 93 above), however the first applicant did not appeal against this decision (see Rzakhanov v. Azerbaijan, no. 4242/07, § 82-84, 4 July 2013 ).", "156. The first applicant did not state whether there were special circumstances in the present case which would dispense her from having to challenge the investigator ’ s refusal to institute criminal proceedings. The Court reiterates that mere doubts about the effectiveness of a remedy are not sufficient to dispense with the requirement to make normal use of the available avenues for redress (see Kunqurova v. Azerbaijan (dec.), no. 5117/03, 3 June 2005).", "157. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "158. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "159. The applicants claimed 2 0,000 euros (EUR) each in compensation for non-pecuniary damage.", "160. The Government submitted that the amount claimed by the applicant was unsubstantiated and excessive. They further submitted that EUR 10 ,000 would constitute reasonable compensation for the non ‑ pecuniary damage allegedly sustained by the applicants.", "161. The Court considers that the applicants have suffered non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 13,000 under this head, plus any tax that may be chargeable on this amount.", "B. Costs and expenses", "162. The applicants claimed EUR 3 ,000 jointly for costs and expenses incurred before the Court. They also claimed a further EUR 1, 902 for translation costs and 100 Azerbaijani manats for postage costs. In support of their claim, they submitted a contract for legal services rendered in the proceedings before the Court, a contract concluded with a translator and eight invoices for postage costs. They also supplied two documents detailing the specific legal and translation services provided by their representative and the translator.", "163. The Government considered that the amount claimed for costs and expenses incurred before the Court was excessive. In particular, they submitted that the amount claimed for translation costs were not necessarily incurred and asked the Court to apply a strict approach in respect of the applicants ’ claims.", "164. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4, 0 00 covering costs under all heads.", "C. Default interest", "165. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1965. When he lodged his application he was in prison serving a sentence for economic offences.", "A. The applicant ’ s imprisonment and applications for an interruption of the sentence on medical grounds", "7. In 2002 the National Anti-Corruption Prosecution Service commenced proceedings against the applicant on charges of involvement in a vast criminal network operating in the economic field, involving several dozen individuals and some one hundred business companies. With the complicity of bank employees, fraudulent appropriations were granted to those companies, which money was then misused for the benefit of the accused.", "8. By final judgment of 28 February 2013 the High Court of Cassation and Justice convicted the applicant on conspiracy charges, sentencing him to three years, four months ’ imprisonment.", "9. Meanwhile, in November 2012, the applicant had been diagnosed with prostate cancer. At that time the illness had already reached an advanced stage and the applicant displayed bone metastases, brain haematoma and intraocular haemorrhages. On 27 November 2012 the applicant had been admitted to the Bucharest Institute of Oncology, from which he had been discharged on 11 January 2013. From 14 to 18 January 2013 he had once again been admitted to hospital. He had undergone prostate surgery and begun chemotherapy. He had subsequently had several short stays in hospital. In January 2013 the diagnosis reached by the oncologist had emphasised the seriousness of the applicant ’ s condition. The prognosis was that he had a short time to live given that the disease had spread to the bone, for which condition the existing treatment was insufficient. On 26 February 2013 the applicant was examined by a medical board, which issued him with a certificate of severe disability.", "10. On 28 February 2013 the applicant was taken into Bacău Hospital oncology department. His state had worsened and he was suffering from bone pain. The applicant continued his chemotherapy and remained in hospital until 4 March 2013, when he was handed over to police officers who had come to escort him to Bacău Prison where he was to begin serving his sentence.", "11. On the same day the applicant, through the intermediary of his lawyer, applied to the Bacău County Court for an interruption of his prison sentence on health grounds. He pointed out that since he could not receive his treatment in prison, his life would be in danger.", "12. On 27 March 2013 he was transferred to the Rahova Prison Hospital. On 5 April 2013 he returned to Bacău Prison. On 15 April 2013 he was readmitted to the Rahova Prison Hospital, and then transferred back to Bacău prison on 28 May 2013.", "13. The court commissioned a report on the applicant ’ s condition from a board of the National Institute of Forensic Medicine. At the board ’ s request, the applicant underwent several medical examinations, which showed that his condition required radiotherapy sessions and further chemotherapy. Furthermore, it transpired from the medical documents made available to the committee that the applicant had had chemotherapy sessions at Bacău Hospital on 12 April 2013 and at the Bucharest Institute of Oncology on 10 and 17 May 2013.", "14. In its report of 19 June 2013 the board concluded that the applicant ’ s survival depended on the medical care with which he was being provided and a complex form of treatment which he could only receive in specialised clinics operating under the Ministry of Health. Consequently, it considered that the court had to order either an interruption of the applicant ’ s sentence or his hospitalisation under supervision in one of the aforementioned establishments.", "15. On 25 June 2013 the court allowed the applicant ’ s request and ordered a three-month interruption of his sentence. Having regard to the seriousness of the applicant ’ s illness, it ruled that hospitalisation under supervision would considerably reduce his chances of survival and recovery owing to the stress and mental suffering caused by the continued execution of his sentence. Moreover, the court emphasised that the applicant posed no threat to public order, that the sentence, one third of which had already been served, was reasonably short and that the applicant ’ s conduct had been good throughout the criminal proceedings. The prosecution appealed.", "16. The applicant was released on the same day. On 4 and 19 July 2013 he underwent chemotherapy at Bacău Hospital and continued the treatment on 1 and 16 August 2013 at the Bucharest Institute of Oncology.", "17. On 29 August 2013 the Bacău Court of Appeal considered the prosecution appeal. By final judgment delivered the same day, it allowed the appeal and dismissed the applicant ’ s request. Relying on Articles 455 and 453 of the Code of Criminal Procedure ( hereafter “the CPP ” - see paragraph 34 below ), the Court of Appeal ruled that the interruption of the applicant ’ s sentence was unjustified provided that his treatment could continue, under guard, in a civil hospital. In a dissenting opinion, one of the judges on the trial bench considered that the sentence should be interrupted on humanitarian grounds; consequently, having regard to the applicant ’ s condition, he considered that his continued detention was in breach of the proportionality principle and reduced his chances of survival.", "18. On 31 August 2013 the applicant was imprisoned in Bacău to serve his sentence. On 24 September 2013 he was transferred to Vaslui Prison. On 27 September 2013 he was admitted to the Rahova Prison hospital. On 3 October 2013 he returned to Vaslui Prison.", "19. On 4 October 2013 the applicant was admitted to Târgu Ocna Prison hospital, diagnosed with “prostatic neoplasia with bone and brain metastases”. On the same day, noting the deterioration in the applicant ’ s general condition, a multidisciplinary team from the Târgu Ocna Prison hospital placed a prisoner on constant standby to assist the applicant in his everyday activities. That prisoner reportedly assisted the applicant up until the day of his last transfer to Bacău Hospital ( see paragraph 28 below ).", "20. On 9 October 2013 the applicant was once again transferred to Bacău Prison, from whence he was taken, on the same day, to the Bacău Hospital oncology department. He was unable to move, was suffering from severe bone pain and had almost completely lost his sight and hearing. Furthermore, he was also showing signs of severe depression. His condition was so severe that he could no longer undergo chemotherapy, which was replaced by palliative care.", "21. The applicant remained in the Bacău Hospital oncology department until 24 October 2013, when he was transferred to Iaşi Prison. On 28 October 2013 he was taken into the Iaşi Regional Institute of Oncology for five palliative radiotherapy sessions geared to alleviating his bone pain. He remained in the institute until 1 November 2013. He lost his sight completely and his depression continued.", "22. On 5 November 2013 he was transferred to Vaslui Prison. On 6 November 2013 he was admitted to the Târgu Ocna Prison hospital where he stayed until 12 November 2013, when he was transferred to Bacău Prison.", "23. On 22 November 2013 the judge delegated to Bacău Prison granted the applicant the most favourable possible detention regime, allowing him to move around inside prison and to take part in outdoor activities unsupervised.", "24. Still on 22 November 2013, the applicant was admitted to the Bacău Hospital oncology department. The senior medical officer said that the applicant ’ s condition could deteriorate suddenly and that he therefore needed round-the-clock medical care. From 25 to 27 November 2013 the applicant received palliative care in the same hospital before being transferred to Bacău Prison and then to the Târgu Ocna Prison hospital.", "25. In reply to a request from the applicant to be released on licence, the Prison Director told him that his request would be examined in 2015.", "26. The applicant wrote to the President of the Romanian Republic and the Director of Târgu Ocna Prison to request their assistance regarding his release. He explained that he was dying and that he wanted to have his family present. He pointed out that he was now bedridden, blind and deaf, and that there was no one in prison to assist him in his everyday activities. He added that the doctors had been reluctant to treat him because had was keep under guard and in handcuffs.", "27. The National Administration of Prison Authorities replied that only a court could order his release.", "28. On 4 December 2013 the applicant was transferred to Bacău Prison and then to Bacău Hospital, where he remained until 7 December 2013. On that date he was transferred to the Târgu Ocna Prison Hospital. On 19 December 2013 he returned to Bacău Prison and the same day was admitted to the Bacău Hospital oncology department. He died there on 24 December 2013.", "B. The medical reports supplied by the hospitals", "29. It transpires from the medical files included in the case file that between 24 January 2013 and 24 December 2013, the date of his death, the applicant was admitted to Bacău hospital eighteen times, including several hospital stays lasting several days. During those stays he had some fifteen chemotherapy sessions, usually at fortnightly intervals : prior to 24 October 2013 in the framework of the cancer treatment, and after that date, in the framework of palliative treatment. He also received various types of treatment for the illnesses caused by the metastatic progression of his prostate cancer.", "30. In a report drawn up at the Government agent ’ s request, the senior medical officer at the Bacău Hospital oncology department highlighted certain dysfunctions in the administration of the treatment. Drawing on the medical files relating to the applicant ’ s stays in that hospital, he pointed out that on 14 March 2013 the applicant had begun the chemotherapy without having received the radiotherapy recommended by the doctors in his department. He added that the chemotherapy session scheduled for between 28 and 30 March 2013 had not taken place because the applicant had been absent, having been transferred to the Bucharest Institute of Oncology for examinations. Lastly, he noted that on 18 September 2013 the applicant had arrived late at the hospital to continue his chemotherapy. Furthermore, when the applicant had been hospitalised, he had been guarded by two police officers and had remained handcuffed to the bed, even after he had become blind and deaf and was suffering extreme bone pain.", "31. In a report of 21 September 2015, the Iaşi Regional Institute of Oncology pointed out that between 28 October and 1 November 2013, the applicant had had five radiotherapy sessions, had kept the medical appointments made and had been neither handcuffed nor immobilised during those sessions.", "32. In a report of 22 September 2015, the Bucharest Institute of Oncology pointed out that the applicant had been hospitalised several times in the institute between 27 November 2012 and 24 May 2013, primarily for chemotherapy. The institute ’ s senior medical officer stated in the report that the applicant had duly respected all his medical appointments and that during his stays at the institute he had not been constrained but had been guarded by prison officers.", "C. The applicant ’ s conditions of detention", "33. According to the information provided by the prison authorities, the applicant had been held in Bacău Prison in a cell measuring 33 m 2, which he had shared with six other prisoners. At Rahova Prison hospital he had shared a 38- m 2 cell with four other prisoners. At Vaslui Prison, where he was held from 24 to 27 September, from 3 to 4 October and from 5 to 6 November 2013, he had occupied a 14 .75- m 2 cell with six other prisoners. At Târgu Ocna Prison hospital he had been held in a 48- m 2 cell with eight other prisoners. At Iaşi Prison he had remained from 24 October to 5 November 2013 in a 15 .92- m 2 cell with three other prisoners." ]

[ "II. RELEVANT DOMESTIC LAW", "A. CPP", "34. The relevant parts of Articles 453 and 455 CPP provide :", "Article 453", "“ 1. Enforcement of a sentence to life imprisonment or detention may be suspended in the following cases :", "a) where it is noted, on the basis of a medical expert assessment, that the convicted prisoner is suffering from an illness making it impossible for him to serve his sentence. In such cases, sentence enforcement must be suspended until the prisoner is in a position to resume it;", "...", "2. A request for suspension of enforcement of a sentence to life imprisonment or detention may be submitted by the public prosecutor [or ] by the prisoner in question .... ”", "Article 455", "“Enforcement of a sentence to life imprisonment or detention may be interrupted in the cases and under the conditions set out in Article 453 .... ”", "B. Law no. 275 of 20 July 2006 on the enforcement of prison sentences and detention orders", "35. The relevant domestic provisions on the remedy available to prisoners to defend their rights, including the right to medical treatment, as governed by Law no. 275, which came into force on 20 October 2006 and concerns the enforcement of prison sentences and detention orders issued by the judicial authorities in the context of criminal proceedings (“Law no. 275/2006”), are described in the case of Iacov Stanciu v. Romania (no. 35972/05, §§ 115 and 116, 24 July 2012). Those provisions allow those concerned to contact the sentence enforcement judge delegated to the prison ( “the delegated judge” ) directly in order to complain of a lack of appropriate medical treatment and ensure that the prison authorities provide them with such treatment. The delegated judge ’ s decision may be challenged before the court of first instance of the district in which the prison is located.", "36. Article 159 § 3 of the implementing regulations of Law no. 275/2006 provides that :", "“Metal handcuffs may not be used to constrain persons deprived of their liberty [who are receiving treatment] in a medical facility. The method and mode of utilisation of devices for constraining persons in medical facilities shall be established by decision of the Director General of the National Prison Administration.”", "THE LAW", "I. PRELIMINARY QUESTION", "37. The Court notes that the applicant died on 24 December 2013 and that the deceased ’ s son, Mr Mircea Dorneanu, expressed the wish to continue the proceedings before it ( see paragraph 3 above ).", "38. The Court normally permits next-of-kin to pursue an application, provided he or she has sufficient interest, if the original applicant has died after the introduction of the application before the Court ( see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 172, 25 November 2014; and Paposhvili v. Belgium [GC], no. 41738/10, § 126, ECHR 2016). Having regard to the subject matter of the application and all the elements in its possession, the Court considers that the applicant ’ s son has a legitimate interest in pursuing the application and that he thus has the requisite locus standi under Article 34 of the Convention ( see, for example, Carrella v. Italy, no. 33955/07, §§ 48-51, 9 September 2014, and Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016).", "39. For practical reasons, the present judgment will continue to refer to the late Mr Florin Liviu Dorneanu as “the applicant ”.", "II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "40. The applicant complained that the authorities had failed to provide him with the medical care necessitated by his state of health, thus endangering his life. He relied on Article 2 of the Convention, the relevant parts of which provide:", "Article 2", "“Everyone ’ s right to life shall be protected by law.”", "A. The parties ’ submissions", "41. The Government objected that the applicant had failed to bring an action under Law no. 275/2006 to complain of the authorities ’ failures in this regard. They added that the applicant ’ s relatives could have brought criminal or civil proceedings in order to establish whether the prison authorities had been responsible for the applicant ’ s worsening state of health and his death.", "42. In any event, the Government considered that there was nothing in the applicant ’ s medical file to suggest that the deterioration in his state of health during his imprisonment had been attributable to the domestic authorities. While acknowledging a number of shortcomings in the administration of treatment, they stated that the problems had been minimal and had neither endangered the applicant ’ s life nor affected his life expectancy.", "43. The Government concluded that the requirements set out by the Court as regards treatment for prisoners with health problems had been observed, and that the applicant ’ s state of health had therefore been appropriately monitored and dealt with by qualified medical staff.", "44. The applicant ’ s son submitted that his father had been so physically diminished that he had been unable to draw up a complaint to the delegated judge under Law no. 275/2006. He argued that in his submissions to the domestic authorities his father had provided sufficient evidence for those authorities to initiate an investigation into the shortcomings in the provision of medical treatment.", "B. The Court ’ s assessment", "45. The Court reiterates that it has previously held, in connection with alleged failures to provide prisoners with appropriate medical assistance, that a complaint based on the provisions of Law no. 275/2006 was an effective remedy for the purposes of Article 35 § 1 of the Convention (see, among many other authorities, Szemkovics v. Romania (dec.), no. 27117/08, §§ 25 and 26, 17 December 2013, and Matei v. Romania (dec.), no. 26244/10, §§ 36 and 37, 20 May 2014).", "46. The Court notes that the applicant lodged with the national courts a request to interrupt the enforcement of his sentence for medical reasons and made several submissions for the same purpose ( see paragraphs 11, 24 and 26 above ). However, those submissions had not directly concerned the lack of medical treatment, but rather the incompatibility of the applicant ’ s state of health with his detention ( see, mutatis mutandis, Matei, decision cited above, § 38, and Şopârlă v. Romania (dec.), no. 76884/12, §§ 47 and 48, 2 February 2016).", "47. Nevertheless, in the circumstances of the present case, the Court considers it unnecessary to ascertain whether the actions indicated by the Government ( see paragraph 41 above ) amounted to effective remedies or whether, by exclusively requesting an interruption of his sentence enforcement, the applicant had duly exhausted available domestic remedies in respect of his complaint under Article 2 of the Convention. Even supposing that that was so, the applicant ’ s case does not appear to have comprised any breach of that provision, for the following reasons.", "48. The Court reiterates that the obligation to protect the lives of prisoners entails providing them with proper medical care such as to prevent any fatal outcome ( see Taïs v. France, no. 39922/03, § 98, 1 June 2006, and Angelova v. Bulgaria, no. 38361/97, §§ 125-130, ECHR 2002-IV). The obligation to provide appropriate medical care is not confined to prescribing adequate treatment : the prison authorities must also ensure that such treatment is properly administered and followed up ( see Jasińska v. Poland, no. 28326/05, § 78, 1 June 2010).", "49. The Court notes that the applicant was mainly provided with medical assistance in the cancer ward of the Bacau hospital. He was admitted to that ward eighteen times, including several fairly long stays, and benefited from fifteen or so chemotherapy sessions ( see paragraph 29 above ). On a recommendation from the hospital cancer department, the applicant underwent additional examinations and radiotherapy and chemotherapy in the Bucharest and Iași Institutes of Oncology ( see paragraphs 31 and 32 above ).", "50. The Court observes that the report drawn up by the senior medical officer of the Bacău hospital oncology department ( see paragraph 30 above ) mentions three instances of shortcomings in the administration of the prescribed treatment.", "51. However, the Court notes that none of the medical documents available to it establishes that those shortcomings, however regrettable they may have been, were such as to jeopardise the effectiveness of the treatment and / or the implementation of the protocol for its administration. For the rest, the other chemotherapy and radiotherapy sessions had taken place as scheduled ( see paragraphs 31 and 32 above ).", "52. The Court also attaches importance to the fact that the applicant was affected not by the sequelae of any disease contracted during his time in prison, but by the metastases of his cancer which had predated his imprisonment ( see, mutatis mutandis, Gengoux v. Belgium, no. 76512/11, § 56, 13 December 2016).", "53. Having regard to the number of hospital stays and the complexity of the treatment administered to the applicant, the Court does not consider that that it has been established that the domestic authorities are responsible for the applicant ’ s death or that they failed in their positive obligation to protect his health in a manner appropriate to the circumstances.", "54. It follows that this complaint is manifestly ill- founded and must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "55. The applicant complained that his immobilisation in a hospital bed had amounted to inhuman treatment and that his state of health had been incompatible with detention. He relied, in that regard, on Article 3 of the Convention, which provides:", "“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ”", "56. The Court considers that the compliance of two different situations with Article 3 of the Convention, namely the applicant ’ s immobilisation in hospital, and the compatibility of his state of health with detention, should be assessed separately.", "A. The applicant ’ s immobilisation in hospital", "57. The Government submitted that that complaint was inadmissible on the grounds of non ‑ exhaustion of domestic remedies. They argued that the applicant had at no stage complained to the judge delegated to Bacău Prison about this measure, which breached the provisions of Law no. 275/2006.", "58. The applicant ’ s son submitted that his father had drawn the authorities ’ attention to his living conditions in the Bacău hospital, where he had been immobilised in bed with handcuffs.", "59. The Court reiterates that the only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness ( see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV, and McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). It also reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies ( Akdivar and Others, cited above, § 71, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX).", "60. The Court observes that at the material time the use of handcuffs to immobilise prisoners in hospital was formally forbidden by the implementing regulations of Law no. 275/2006 ( see paragraph 36 above; see also, to converse effect, Tănase v. Romania, no. 5269/02, § 84, 12 May 2009, and Stoleriu v. Romania, no. 5002/05, §§ 80 and 81, 16 July 2013).", "61. In the present case, the Court notes that neither the applicant nor his relatives, who could have acted on his behalf on account of his state of physical and psychological vulnerability, availed themselves of the remedy set out in Law no. 275/2006. It considers that a complaint to the judge delegated to the prison could well have led to a finding against the prison authorities for a breach of the legal provisions concerning the use of handcuffs.", "62. It follows that this complaint must be rejected for non ‑ exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.", "B. Whether the applicant ’ s state of health was compatible with detention", "1. Admissibility", "( a) The parties ’ submissions", "63. The Government considered that, as in the case of Ceku v. Germany ((dec.), no. 41559/06, 13 March 2007), the complaint concerning the applicant ’ s continued detention despite his worsening state of health should be declared inadmissible for non- exhaustion of domestic remedies on the grounds that the applicant had failed to submit a further request for the interruption of his sentence.", "64. The applicant ’ s son pointed out that in view of the rapid deterioration in his father ’ s state of health he should have been provided with constant emergency care. In view of the length of time required to examine a fresh request for interruption of sentence, which he argued would have been similar to the period required for the first request, which had taken several months to process, he considered that it would have been illusory to submit another request for interruption of sentence.", "( b) The Court ’ s assessment", "65. The Court notes that the applicant used the only remedy available in domestic law, namely a request for interruption of sentence on health grounds ( see paragraph 11 above ). In the framework of that remedy he had mentioned the incompatibility which he saw between his illness and the constraints of imprisonment, thus giving the domestic courts an opportunity to prevent or remedy the alleged violation of the Convention.", "66. The Court also notes that the situation in the present case is different from that in the case of Ceku relied upon by the Government ( see paragraph 63 above ). In the latter case the applicant had failed to produce before the German Constitutional Court a number of documents on which the regional court had grounded its decision rejecting his request for the interruption of enforcement of his sentence. However, in the instant case, the fact cannot be overlooked that the applicant ’ s state of health, which was already extremely poor, had been very well-known to the court of appeal which considered the prosecution appeal ( see paragraph 17 above ).", "67. Moreover, having regard to the time required to process the first request, namely from the beginning of March 2013 to the end of August 2013 ( see paragraphs 11 and 17 above ), the Court considers that it would have been excessive to require the applicant to submit a second request at a time when the likelihood of a fatal outcome had seemed increasingly imminent after the discontinuation of his chemotherapy in October 2013, replaced by palliative care ( see paragraph 20 above ). Indeed, the applicant was indubitably in an extremely vulnerable situation, and could not have been expected once again to ask the authorities to address a problem to which he had already drawn their attention. It had been incumbent on those authorities to monitor his situation, if only on humanitarian grounds ( see, mutatis mutandis, Gülay Çetin v. Turkey, no. 44084/10, § 113, 5 March 2013, and paragraphs 95 and 99 below ).", "68. Having regard to the foregoing considerations, the Court holds that the applicant ’ s complaint under Article 3 of the Convention concerning the compatibility of his state of health with detention had been appropriately brought to the attention of the domestic courts.", "69. Accordingly, it rejects the Government ’ s objection in respect of the complaint.", "70. Furthermore, noting that this complaint is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.", "2. The merits", "(a) The parties ’ submissions", "71. The applicant considered that he had suffered treatment contrary to Article 3 of the Convention owing to the incompatibility of his state of health with imprisonment. He alleged that his detention while suffering from life-threatening cancer had reduced his chances of survival.", "72. The applicant considered that the court of appeal had decided to continue his detention without having regard to his actual conditions of detention. He described those conditions as “inhuman”, pointing out that his recurrent stays in hospital had entailed a large number of transfers and delays in the provision of treatment. He added that that situation had persisted until the terminal phase of the disease, and that it had placed him and his family in a situation of powerlessness and profound distress.", "73. The Government did not consider that Article 3 of the Convention had been breached. They pointed out that on his arrival in prison on 4 March 2013 the applicant had already been suffering from a disease which would have fatal outcome in the short term owing to the metastases spreading to his skeleton. They further submitted that neither the Institute of Forensic Medicine nor the doctors had imposed on the authorities any obligation to place the applicant permanently in a civilian hospital ( see paragraph 14 above ).", "74. The Government affirmed that the applicant had been hospitalised whenever his state of health so required. Furthermore, they stated that outside the periods in hospital, the applicant had been housed mainly in the Rahova and Târgu Ocna Prison hospitals, where he had received the appropriate treatment.", "(b) The Court ’ s assessment", "i. General principles", "75. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the applicant ’ s sex, age and state of health (see, among other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 ‑ VII, and Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX).", "76. As regards, in particular, persons deprived of their liberty, Article 3 of the Convention imposes on the State the positive obligation to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The suffering which flows from natural illness, whether physical or mental, may fall foul of Article 3, where it is, or risks being, exacerbated by conditions of detention for which the authorities can be held responsible. The prisoner ’ s health and well-being must be adequately secured by, among other things, providing him with the requisite medical assistance. Thus the detention of a person who is ill in inappropriate material and medical conditions may, in principle, amount to treatment contrary to Article 3 ( see Gülay Çetin, cited above, § 101, with the references therein ).", "77. In order to determine whether the detention of a person who is ill complies with Article 3 of the Convention, the Court considers three different factors ( see, for example, Sakkopoulos v. Greece, no. 61828/00, § 39, 15 January 2004; Gülay Çetin, cited above, § 102; Bamouhammad v. Belgium, no. 47687/13, §§ 120-123, 17 November 2015; and Rywin v. Poland, nos. 6091/06, 4047/07 and 4070/07, § 139, 1 8 February 2016, with the references therein ).", "78. The first factor is the applicant ’ s state of health and the effect on the latter of the manner of his imprisonment. Conditions of detention may under no circumstances subject a person deprived of his liberty to feelings of fear, anxiety or inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance. Thus, the detention of a person who is ill under inappropriate material and medical conditions can, in principle, amount to treatment incompatible with Article 3 of the Convention.", "79. The second factor to be considered is the adequacy or inadequacy of the medical care and treatment provided in detention. It is not sufficient for the prisoner to be examined and a diagnosis to be made; it is vital that treatment suited to the diagnosis be provided, together with appropriate medical after-care.", "80. The third and last factor is the decision whether or not to continue the person ’ s detention in view of his state of health. Clearly, the Convention does not lay down any “general obligation ” to release a prisoner for health reasons, even if he is suffering from a disease which is particularly difficult to treat. Nevertheless, the Court cannot rule out the possibility that in particularly serious cases, situations may arise where the proper administration of criminal justice requires remedies in the form of humanitarian measures.", "ii. Application of those principles in the present case", "81. The Court observes, first of all, that the applicant provided no precise details concerning his material conditions of detention. However, he described those conditions as “inhuman” and complained that the authorities had constantly transferred him to various places of detention, even during the terminal phase of his illness. The Government submitted that in both the civilian and prison hospitals the applicant had enjoyed conditions of detention satisfying the requirements of Article 3 of the Convention. They argued that the transfers had taken place for medical reasons.", "82. The Court notes that it transpires from the documents supplied by the prison authorities that the applicant had suffered the effects of a problem of severe overcrowding in Vaslui Prison, where his personal living area had measured under 3 m² (see paragraph 33 above).", "83. In that regard, the Court reiterates that the requirement of 3 m² of floor space per prisoner in multi-occupancy accommodation in prisons is the relevant minimum standard for assessing conditions of detention under Article 3 of the Convention. Where the personal space falls below this minimum standard, the situation is considered so severe that a strong presumption of a violation of Article 3 of the Convention arises ( see Muršić v. Croatia [GC], no. 7334/13, §§ 110 and 124, ECHR 2016).", "84. That presumption may be rebutted if the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor, if they are accompanied by sufficient freedom of movement and if the applicant is not subjected to other aggravating aspects of the conditions of his or her detention ( see Muršić, cited above, § 138).", "85. In the present case, given that the applicant ’ s detention in Vaslui Prison lasted eight days in all (see paragraph 33 above), the Court is prepared to consider that period short, occasional and minor for the purposes of its case-law. However, it emphasises that the lack of sufficient personal space at Vaslui Prison had been exacerbated by detention in ordinary cells unsuited to the applicant ’ s state of health, at a time when his physical capacities had been in constant decline, such that towards the end of his time in prison he had become blind and deaf and was suffering excruciating bone pain. Moreover, the Court reiterates that the unacceptable conditions of detention and overcrowding in Vaslui Prison have already induced it to find a violation of Article 3 of the Convention ( see, for example, Todireasa v. Romania (no. 2), no. 18616/13, §§ 56-63, 21 April 2015).", "86. The Court therefore reaches the conclusion that despite the short time during which the applicant was detained in a personal space of under 3 m², he was subjected to circumstances which exacerbated the poor conditions of detention. It further notes that the Government have put forward no cogent arguments to rebut the strong presumption of a violation of Article 3 concerning the applicant ’ s detention in Vaslui Prison.", "87. As regards Iași Prison, where the applicant allegedly had a personal space of between 3 and 4 m² (see paragraph 33 above), even though that area does not lead to a strong presumption of a violation of Article 3 of the Convention the Court cannot overlook the fact that the ordinary cells in that prison were unsuited to the applicant ’ s severe disability. Furthermore, the poor conditions of hygiene in that prison, which the Court has noted in past cases ( see, for example, Mazalu v. Romania, no. 24009/03, §§ 52-54, 12 June 2012; Olariu v. Romania, no. 12845/08, § 31, 17 September 2013; and Axinte v. Romania, no. 24044/12, § 49, 22 April 2014), amount, in the present case, to an exacerbating circumstance, given the applicant ’ s state of health.", "Therefore, the Court holds that the conditions of detention in Iași Prison also subjected the applicant to an ordeal of a severity exceeding the unavoidable level of suffering inherent in detention.", "88. The Court also notes that from 4 March to 25 June 2013 and from 31 August to 24 December 2013, the date of the applicant ’ s death at Bacău Hospital, he had been transferred seventeen times between prisons and seven times to the medical establishments in Bacău, Iaşi and Bucharest ( see paragraphs 12, 18, 21, 22, 24 and 28 above ).", "89. The Court observes that although most of those transfers were justified on medical grounds, it cannot overlook the fact that those establishments were located far apart, some of them at distances of several hundred kilometres.", "90. Having regard to the applicant ’ s ever-worsening state of health, the Court considers that the repeated changes of hospital imposed on the applicant had disastrous consequences for his well- being. It holds that those transfers were such as to create and exacerbate his feelings of anxiety regarding his adaptation to the different places of detention, the implementation of the medical treatment protocol and his continued contact with his family.", "91. The Court accepts that in the instant case there was no suggestion of intent to humiliate or debase the applicant. However, the absence of such intent cannot conclusively rule out a finding of a violation of Article 3 of the Convention ( see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999 ‑ IX; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001 ‑ III; and Khlaifia and Others v. Italy [GC], no. 16483/12, § 160, ECHR 2016 ).", "92. In the light of the particular circumstances of the present case, the Court, reiterating that it has already ruled that it would be better to avoid imposing very long, arduous journeys on prisoners who are ill ( see Viorel Burzo v. Romania, nos. 75109/01 and 12639/02, § 102, 30 June 2009, and Flamînzeanu v. Romania, no. 56664/08, § 96, 12 April 2011), considers that the frequent transfers of the applicant could not fail to subject him to an ordeal of a severity exceeding the unavoidable level of suffering inherent in detention.", "93. As regards the quality of the medical care and assistance provided, the Court first of all reiterates that no one disputes the seriousness of the applicant ’ s illness or the fact that his state of health constantly worsened over time. As the Government in fact noted in their observations, on his arrival in prison on 4 March 2013 the applicant was already suffering from a disease which would be fatal in the short term because of its spread to his skeleton ( see paragraphs 9 and 73 above ). The Court has already found that, apart from the shortcomings pointed out by the senior medical officer of the oncology department of Bacău Hospital, the applicant had been treated in accordance with the doctors ’ prescriptions ( see paragraph 53 above ). However, it does not transpire from the case file that the domestic authorities ever considered the possibility of providing all the different types of treatment in the same place, which would have spared the applicant some of the transfers, or at least limited their number and reduced the harmful consequences for the patient ’ s well-being. Furthermore, the Court has already expressed the view that during the final stages of the illness when there is no further hope of remission, the stress inherent in prison life can have repercussions on the prisoner ’ s life expectancy and state of health (see, mutatis mutandis, Gülay Çetin, cited above, § 110).", "94. The Court further observes that a time came when the applicant had become very severely weakened and diminished, both physically and mentally ( see paragraphs 19, 20, 21 and 24 above ), such that he could no longer perform basic everyday activities without assistance, and a fellow prisoner was appointed to assist him ( see paragraph 19 above ). The Court reiterates that it has already voiced doubts as to the adequacy of assigning unqualified persons responsibility for looking after an individual suffering from a serious illness ( see Gülay Çetin, cited above, § 112, with the references therein ). In the present case, it cannot be ascertained whether the prisoner who agreed to assist the applicant was qualified to provide support for an end-of-life patient or whether the applicant actually received proper moral or social support. Nor does it transpire from the case-file that the applicant received appropriate psychological support during his periods in hospital or prison, given that he was displaying symptoms of depression ( see paragraphs 20 and 21 above ).", "95. The Court notes therefore that as his illness progressed, the applicant could no longer cope with it in prison. The national authorities should consequently have taken specific action based on humanitarian considerations ( see Gülay Çetin, cited above, § 113).", "96. In connection with the latter aspect, and more specifically with the appropriateness of continuing the applicant ’ s detention, the Court cannot substitute its views for those of the domestic courts. However, it cannot be overlooked that the court of appeal, in rejecting the request for an interruption of the sentence, put forward no arguments concerning a possible threat posed to law and order by the applicant ’ s release, having regard to his state of health ( see paragraph 17 above; see also, mutatis mutandis, Gülay Çetin, cited above, § 122). Moreover, the Court notes that the applicant had at first been sentenced to a fairly short prison term, a third of which he had served ( see paragraph 15 above ). It also observes that the applicant had displayed good behaviour during the trial, that he had been afforded the most favourable detention regime ( see paragraphs 15 and 23 above ) and that because of his state of health the risk of reoffending could only have been minimal.", "97. The Court also reiterates that the prisoner ’ s clinical picture is now one of the aspects to be taken into account in the procedure for enforcing a prison sentence, particularly as regards the continued detention of individuals suffering from a life-threatening pathology or persons whose condition is incompatible in the long term with prison life ( see Gülay Çetin, cited above, § 102, and the references therein ). According to the case file, however, in the present case the authorities called upon to act did not have proper regard to the realities imposed by the applicant ’ s individual case and failed to consider his real capacity for remaining in prison under the impugned conditions of detention. Even though in its judgment of 29 August 2013 the court of appeal found that the applicant could be provided with the prescribed treatment in detention ( see paragraph 17 above ), it did not consider the practical conditions and methods for administering the complicated treatment in the applicant ’ s specific situation. It failed to assess the material conditions under which the applicant was being held or to ascertain whether, in view of his state of health, those conditions were satisfactory in the light of his specific needs. Nor did it have regard to the conditions of the transfers to the various prisons and hospitals, the distances to be covered between these establishments or the number of hospitals attended by the applicant in order to receive his treatment, nor again the combined effect of all these elements on his already precarious state of health. The fact is that under such exceptional circumstances as those encountered in the present case, the said elements should, if only on humanitarian grounds, have been examined by the court of appeal in order to evaluate the compatibility of the applicant ’ s state of health with his conditions of detention. It was never argued that the national authorities could not have coped with those exceptional circumstances by taking due account of the serious humanitarian considerations at issue in the case. On the other hand, the Court considers that the decisions reached by the domestic authorities show that the impugned proceedings were conducted with the emphasis on formalities rather than on humanitarian considerations, thus preventing the dying applicant to live out his last few days in dignity ( see, mutatis mutandis, Gülay Çetin, cited above, §§ 120-124).", "98. Moreover, the Court has already noted that the length of the proceedings brought by the applicant seeking an interruption of the enforcement of his sentence on medical grounds had been excessive in the light of the applicant ’ s terminal illness ( see paragraph 67 above ). Similarly, it notes that the answers provided by the prison authorities, from whom the applicant had requested help in seeking his release, were characterised by their scant consideration of the applicant ’ s specific situation ( see paragraphs 25 and 27 above ).", "99. Finally, the Court reiterates that the increasingly high standard required in the area of the protection of human rights and fundamental liberties necessitates greater firmness in assessing breaches of the fundamental values of democratic societies ( see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999 ‑ V). In the instant case, the applicant had been imprisoned despite his end-of-life situation and the effects of serious medical treatment in difficult prison conditions. The Court takes the view that in such a context, lack of diligence on the authorities ’ part renders the person even more vulnerable and robs him of his dignity in the face of the fatal outcome towards which his illness is ineluctably progressing (see, mutatis mutandis, Gülay Çetin, cited above, § 122).", "100. Having conducted an overall assessment of the relevant facts on the basis of the evidence presented before it, the Court finds that the national authorities failed to provide the applicant with treatment compatible with the provisions of Article 3 of the Convention, and that they inflicted inhuman treatment on someone who was suffering from a terminal illness, owing to his detention under the conditions described above.", "There was therefore a violation of Article 3 of the Convention in that regard.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "101. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "102. The applicant ’ s son claimed 3,000 euros (EUR) in respect of the pecuniary damage which he considers that he sustained. That amount corresponded, in his view, to the loss of the financial support which his father would have provided to him had he remained alive, and to the funeral expenses. He further claimed EUR 500,000 in respect of the non-pecuniary damage caused by his father ’ s suffering during his detention.", "103. The Government considered that the claim in respect of pecuniary damage had not been substantiated. At all events, they submitted that the causal link between the alleged violations of the Convention and the pecuniary damage had not been proved. As regards the claim in respect of non- pecuniary damage, they deemed the amount claimed excessive.", "104. As regards pecuniary damage, the Court does not discern a sufficient causal link between the applicant ’ s death and the violation found. It therefore rejects the applicant ’ s son ’ s claim in that respect.", "105. On the other hand, the Court considers that the applicant sustained substantial non- pecuniary damage from his subjection to treatment contrary to Article 3 of the Convention during his detention. Consequently, making its assessment on an equitable basis, it finds it appropriate to award the applicant ’ s son, Mr Mircea Dorneanu, EUR 9,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "106. Since the applicant ’ s son made no claim in this respect, the Court is not called upon to rule on this point.", "C. Default interest", "107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first and second applicants, Mr Oleg Volodymyrovych Kats and Mrs Tetiana Yakivna Kats, born in 1946, are the father and mother of the late Ms Olga Olegivna Biliak (hereinafter Olga Biliak), who was born in 1971 and died in 2004. The third applicant, Mr Stanislav Ihorovych Beliak, born in 1993, is the son of Olga Biliak. All three applicants live in Kyiv.", "7. Olga Biliak had a history of mental illness and drug addiction. At the time of her arrest, she was a registered schizophrenic and infected with HIV (Human Immunodeficiency Virus).", "A. Criminal proceedings against Olga Biliak", "8. On 18 November 2002 the Solomyanskyy District Police Department of Kyiv ( Солом'янське РУ ГУ МВС України в м. Києві – “the District Police Department”) instituted criminal proceedings against Olga Biliak and S. for assaulting and robbing a certain A. On 15 January 2003 the cases against Olga Biliak and S. were disjoined. S. was subsequently sentenced to seven years'imprisonment for assault and robbery committed jointly with “another person”.", "9. On 16 April 2003 Olga Biliak was charged with robbery.", "10. On the next day the Solomyanskyy District Court of Kyiv ( Солом'янський районний суд м. Києва – “the Solomyanskyy Court ”) ordered Olga Biliak's pre-trial detention.", "11. On 27 August 2003 the Solomyanskyy Court convicted Olga Biliak of robbery and sentenced her to eight and a half years'imprisonment.", "12. On 25 November 2003 the Kyiv City Court of Appeal ( Апеляційний суд м. Києва – “the Court of Appeal”), following an appeal by Olga Biliak, quashed this judgment, remitted the case for further investigation and decided – without stating any grounds – that she should remain in detention. From that point on, according to the applicants, no investigative action was taken and Olga Biliak was on no occasion visited by the investigator.", "13. On 1 February 2004 Olga Biliak died in pre-trial detention.", "14. On 23 August 2004 the District Police Department discontinued the proceedings against Olga Biliak, in view of her death.", "15. On 30 December 2004 the Solomyanskyy Court quashed the District Police Department's ruling and ordered the rehearing of the case. On 29 March 2005 the Court of Appeal dismissed a prosecution appeal against this decision.", "16. On 31 January 2006 the Solomyanskyy Court found Olga Biliak guilty of robbery and discontinued the proceedings against her because of her death.", "17. On 7 November 2006 the Court of Appeal upheld Olga Biliak's conviction. On the same date that court issued a separate ruling to the effect that, in breach of Article 165-1 of the Code of Criminal Procedure and section 20 of the Pre-trial Detention Act, the authorities had failed to implement immediately the investigator's decision to release Olga Biliak (see paragraph 45 below). The Court of Appeal decided to bring this violation of the domestic law to the attention of the Kyiv City Prosecutor ( прокурор міста Києва ).", "18. On 14 June 2007 the Supreme Court of Ukraine quashed the decisions of 31 January and 7 November 2006, including separate rulings, and remitted the case for fresh consideration to the first-instance court. The proceedings are apparently still pending.", "19. The applicants complained on many occasions that the real reason behind Olga Biliak's prosecution was revenge for her refusal to cooperate with officers T. and N. from the Anti-Narcotics Police Department ( Відділ по боротьбі з незаконним обігом наркотиків ), who had allegedly proposed that she sell drugs seized by the police from street dealers.", "20. The applicants have requested on numerous occasions that criminal proceedings be instituted against the above-mentioned police officers; however, all their requests have been rejected.", "B. Olga Biliak's pre-trial detention and medical treatment", "21. On 14 April 2003 Olga Biliak was arrested and brought to the District Police Department, where she was held until 22 April 2003.", "22. On 18 April 2003 (according to some documents not until 18 December 2003), she was examined and X-rayed at the Institute of Physiotherapy and Pulmonology ( Інститут фізіатрії і пульмонології ). She was found to be healthy.", "23. On 22 April 2003 Olga Biliak was transferred to Kyiv City Pre- Trial Detention Centre no. 13 ( Київський слідчий ізолятор № 13 – “the SIZO”).", "24. Upon her arrival at the SIZO, Olga Biliak was examined by prison doctors, whom she informed that she had been using drugs since 1996. No other complaints were made during this examination. According to the Government, she refused to take an HIV test. She was found to be generally healthy and fit for detention in the SIZO.", "25. On 7 May 2003 Olga Biliak wrote in her diary that she had pneumonia.", "26. On 18 May 2003 a panel of psychiatrists examined Olga Biliak in the SIZO. It established that she was suffering from schizophrenia, but considered that a more detailed assessment was necessary.", "27. On 26 May 2003 the Solomyanskyy Court ordered an in-patient psychiatric examination of Olga Biliak. On the same day she was transferred to a psychiatric hospital.", "28. On 18 June 2003, following completion of the psychiatric assessment, Olga Biliak was transferred back to the SIZO and again placed in the shared cell, where she remained until her death on 1 February 2004.", "29. The psychiatric panel drew up a report on 1 July 2003. They concluded that Olga Biliak was suffering from a mental disorder but at the time of the offence would have been in control of her actions.", "30. On 18 July, 11 August and 20 November 2003 Olga Biliak complained to a SIZO physician that her legs were swollen. She was examined and, since no abnormalities were revealed, no treatment was prescribed for her complaints. However, on the last of these dates Olga Biliak was diagnosed with pyelonephritis.", "31. In early September 2003 Olga Biliak wrote in her diary that she had again developed pneumonia.", "32. On 25 September 2003 her gastric ulcer worsened. She vomited undigested food and then blood. A paramedic ( фельдшер ) prescribed “medical activated charcoal” ( активоване вугілля ).", "33. On 26 September 2003 the first applicant lodged a request with the SIZO seeking to have his daughter hospitalised. He attached to that request a letter of 25 September 2003 in which Kyiv City Hospital no. 5 confirmed that Olga Biliak had been HIV-positive since 1999 and had undergone related treatment.", "34. On 1 and 21 October 2003 Olga Biliak was examined by a neuropathologist and a psychiatrist, who identified some problems with her mental health.", "35. On 3 October 2003 the Governor of the SIZO and the head of its medical unit informed the first applicant that Olga Biliak had been examined by a cardiologist and a neuropsychiatrist and had been diagnosed with vasomotor neurosis ( вегето-судинна дистонія ) ( a dysfunction in the nervous system affecting the blood vessels) and a stomach ulcer. According to them, she did not require inpatient treatment in hospital.", "36. On 5 October 2003 Olga Biliak was prescribed a diet.", "37. On 1 December 2003 Olga Biliak complained to a prison doctor of general weakness and pain in her lungs. She was diagnosed with chronic bronchitis and multi-drug dependence.", "38. According to the entries of December 2003 in Olga Biliak's diary, her state of health started to deteriorate seriously. On 4 December 2003 she had shaking chills and a rising temperature. On 9 December 2003 Olga Biliak wrote that she was losing weight rapidly. On 10 December 2003 she complained of nervous exhaustion, stating that she could hardly eat, being only able to keep down tiny pieces of food. She continued to lose weight very quickly. On 11 December 2003 Olga Biliak recorded that a high temperature had caused her fifth sleepless night. Constant weakness, drowsiness and a high temperature prevented her from going outside for walks. On 12 December 2003 Olga Biliak started to lose herself in time. On 13 December 2003, with her temperature constantly around 40 oC, Olga Biliak was given a couple of fever-reducing pills. Her only friend in the cell prepared her tea in the morning, coffee and biscuits during the day and milk with sugar and butter in the evening. On 15 December 2003 Olga Biliak was given another pill and informed that she was to have her lungs X-rayed. Her body temperature that day was 39 oC, subsequently receding to 35 oC. On 17 December 2003 Olga Biliak was scheduled for an X-ray and given another fever-reducing pill.", "39. From mid-December 2003 the applicants and Olga Biliak's lawyer repeatedly requested the authorities to release her on account, inter alia, of her rapidly deteriorating state of health. On 13 January 2004 the Deputy Prosecutor of the Solomyanskyy District of Kyiv ( заступник прокурора Солом'янського району м. Києва ) and, on 19 January 2004, the investigator dealing with her case, rejected those complaints without addressing the health issues.", "40. On 6 January 2004 Olga Biliak complained of stomach pain and was diagnosed with chronic gastritis.", "41. On 12 January 2004 Olga Biliak again complained to a physician that she had stomach pains and had vomited undigested food.", "42. On 21 January 2004 Olga Biliak was examined by a cardiologist, a psychiatrist and the Head of the Medical Board of the Prison Department ( начальник медичного відділу управління Державного департаменту виконання покарань ), and underwent an X-ray and a blood test. The X-ray revealed no abnormalities. According to the blood test, there was serious inflammation in Olga Biliak's body. She was diagnosed with acute bronchitis, chronic gastritis, anaemia, cachexia and mental disorders. Her state of health was assessed as being of “medium seriousness”. She was prescribed some anti-inflammatory and light tranquilising drugs, as well as some antibiotics. Olga Biliak was asked if she was HIV-positive. She replied that she was not and refused to take a HIV test. However, that was the date when, according to the Government, the prison doctors started to suspect that she was HIV-positive.", "43. On 22 January 2004 the Governor of the SIZO applied to the Head of the District Police Department, stating that Olga Biliak's poor state of health prevented her from participating in any investigative actions and that she needed to be admitted to hospital urgently. He asked that the investigative authorities consider the possibility of her release on an undertaking not to abscond.", "44. On 28 and 30 January 2004 Olga Biliak was examined by a SIZO physician. Her state of health was again assessed as being of “medium seriousness” and a recommendation was made to “continue treatment”.", "45. On 29 January 2004 the investigator of the District Police Department ordered Olga Biliak's release on health grounds. From the documents submitted by the parties, it is unclear when exactly this decision was received by the SIZO. One available copy of the decision has a stamp of the SIZO on the reverse side and a handwritten date – “30.01.2004”. However, another copy of the decision bears a SIZO stamp for incoming correspondence with the number 2954 and an incoming date of 2 February 2004.", "46. On 1 February 2004 at 9.15 p.m. Olga Biliak was visited by a prison doctor who gave her a painkiller and an anti-spasmodic drug. At 9.55 p.m. Olga Biliak died. The death certificate issued on the same day indicated bilateral pleurisy as the cause of death. According to the Government, Olga Biliak's death was caused by acute heart failure.", "47. The applicants provided two colour photographs of Olga Biliak's body, which show that she had been in an advanced state of exhaustion when she died.", "C. The investigation into the death of Olga Biliak", "48. Immediately after Olga Biliak's death, the applicants lodged a criminal complaint against the SIZO staff for negligence.", "49. During the investigation into the applicants'complaint, the investigator questioned a SIZO physician, S., who had treated her, and the head of the SIZO medical unit. S. submitted that the deceased had been examined on a number of occasions; the last examination took place on 30 January 2004. According to him, at that time there were no grounds for placing Olga Biliak on the medical ward. She was found to be suffering from bronchitis, drug addiction, anaemia and cachexia. Taking into account her state of health, he had recommended her release.", "50. The head of the medical unit testified that on her arrival at the SIZO Olga Biliak had been examined and found to be suffering from drug addiction and certain psychiatric problems (such as hysteria), but in general her state of health had been considered satisfactory. The instructions of the SIZO physician were fully complied with and there had been no reason to transfer her to the SIZO medical wing.", "51. The head of the medical unit further stated that on 2 1 January 2004 he had examined Olga Biliak himself and found her state of health to be satisfactory. On the same day she was examined by the Head of the Medical Board of the Prison Department who diagnosed her with “possible AIDS, acute bronchitis, drug addiction and anaemia ” and considered that she should be released on medical grounds.", "52. The eight inmates who had shared the cell with Olga Biliak before her death claimed that during her detention she was frequently attended to by doctors and paramedics, and that her health had been satisfactory. Their written testimonies given to the Head of the SIZO are all very brief and drafted using the same style and expressions.", "53. According to the autopsy report of 25 March 2004 Olga Biliak died from HIV-related advanced purulent pneumonia. The autopsy also revealed a number of bruises on her hands, legs, left cheekbone and chin.", "54. In a decision of 30 April 2004 the investigator found that Olga Biliak's death was not caused by any violence or negligence, and decided not to institute criminal proceedings.", "55. On 8 June 2004 the Kyiv Deputy Prosecutor instituted disciplinary proceedings against the employees of the SIZO administrative office for mishandling correspondence, since they had registered the decision of 29 January 2004 and handed it to the Head of the SIZO only on 2 February 2004, although it had been received on 30 January 2004.", "56. On 14 June 2004 the Kyiv City Prosecutor's Office ( Прокуратура м. Києва ) rejected the applicants'request to set aside the decision of 30 April 2004, stating that the investigation had been thorough and complete. During her detention the deceased had had appropriate medical treatment, and had received food and medication from her relatives. Until 2 1 January 2004 the authorities had had no information about her HIV status.", "57. On 18 June 2004, the Governor of the SIZO reprimanded the head of its registry for “ antedating the letter from the investigator which contained Olga Biliak's release order ”.", "58. The applicants challenged the decision of 30 April 2004 before the Shevchenkivskyy District Court of Kyiv ( Шевченківський районний суд м. Києва – “the Shevchenkivskyy Court ” ). On 16 December 2004 the court quashed that decision and ordered further inquiries, finding that the initial investigation had been inadequate and incomplete. It ordered an official post ‑ mortem examination of the body and sought to clarify the following issues:", "- whether Olga Biliak, given her state of health, had been fit for detention in the SIZO;", "- whether she had received proper medical treatment when in custody;", "- whether she would have survived if she had been taken quickly to hospital;", "- exactly when prison doctors had started to treat her health problems;", "- the time and cause of death.", "59. Following this decision, the Shevchenkivskyy District Prosecutor's Office of Kyiv ( Прокуратура Шевченківського району м. Києва – “ the Shevchenkivskyy Prosecutor's Office ” ) requested that the authorities of the SIZO carry out additional inquiries into the circumstances of the death of Olga Biliak. Having received no reply, on 21 February 2005 the Shevchenkivskyy Prosecutor's Office decided against instituting criminal proceedings on the ground that there was no indication that her death had been caused by violence or that any other parties had been involved in her death. According to the applicants, they were not informed of this decision.", "60. On 21 March 2005 the applicants inquired about the progress of proceedings in the case. In a letter of 11 April 2005 the Kyiv City Prosecutor's Office informed them that the investigations were still ongoing.", "61. In August 2005 the applicants, in the course of proceedings concerning their civil action for damages against the SIZO ( see paragraphs 68-74 below), learned of the Shevchenkivskyy Prosecutor's Office's decision of 21 February 2005. On 28 September 2005 the Shevchenkivskyy Court, following an application by the applicants, quashed that decision and ordered further investigations. The court found, in particular, that none of the actions indicated in the decision of 16 December 2004 had been taken.", "62. It appears that the prosecution authorities were not informed of this decision and, on 17 January 2006, the Kyiv City Prosecutor's Office quashed the February 2005 decision of the Shevchenkivskyy Prosecutor's Office of its own motion and ordered reinvestigation.", "63. In the course of the additional investigations the Shevchenkivskyy Prosecutor's Office ordered that further medical evidence be obtained.", "64. On 17 November 2006 the Kyiv City Forensic Medical Bureau ( Київське міське бюро судово-медичної експертизи – “the Bureau”) issued a report in which it stated that Olga Biliak's death was caused by the hematogenously disseminated tuberculosis affecting the lungs, liver, spleen and other parts of the body, which led to purulent necrotising pneumonia. All these diseases had developed against the background of the concurrent HIV-infection. The lack of correct diagnosis had resulted in a failure to provide appropriate medical treatment; therefore, the death of Olga Biliak had been indirectly caused by the actions of the SIZO officials.", "65. On 22 December 2006 the Deputy Prosecutor of the Shevchenkivskyy District of Kyiv requested that the Bureau carry out further examinations with a view to establishing whether Olga Biliak had required urgent hospitalisation in October 2003 and in January 2004 and whether she had received adequate medical assistance during her detention in the SIZO.", "66. However, on 25 December 2006 the investigator from the Shevchenkivskyy Prosecutor's Office, taking into account the fact that the reply from the Bureau could not be received before the expiry of the statutory time-limit for reaching a decision on a criminal complaint, decided not to institute criminal proceedings into the death of Olga Biliak as the evidence in the case file did not show that her death had been caused by violence or by the negligence of the SIZO staff.", "67. On 12 July 2007 the Shevchenkivskyy Court, acting on an appeal lodged by the applicant, quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in that court's decisions of 16 December 2004 and 28 September 2005. The court ordered that further investigations into the death of Olga Biliak be carried out. The proceedings are apparently still ongoing.", "D. Civil action against the SIZO", "68. On 21 July 2004 the applicants sued the SIZO for non-pecuniary damage incurred on account of the inadequate medical treatment of Olga Bilaik and the failure to hospitalise or release her on medical grounds. They also claimed compensation for burial expenses.", "69. On 27 October 2006 the Shevchenkivskyy Court partially allowed these claims. It found, inter alia, that the prison authorities had learned of Olga Bilaik's HIV status on 26 September 2003 from her father's letter. The court further indicated that although the relevant regulations provided that each newly admitted detainee should be examined and interviewed in relation to AIDS or HIV infection, this had never been done in respect of Olga Bilaik. The Shevchenkivskyy Court also established that, contrary to the domestic law, she had not been X-rayed within three days of her arrival at the SIZO. She did not undergo that examination until 18 December 2003.", "70. The court further indicated that on 30 January 2004 the Head of the Disrict Police Department had requested the SIZO to bring Olga Biliak to the District Police Department on 2 February 2004. According to the SIZO incoming mail register this request has been received on 30 January 2004. The decision of 29 January 2004 to release Olga Biliak was registered only on 2 February 2004 with the incoming mail number 2954.", "71. The Shevchenkivskyy Court concluded that the applicants had suffered distress on account of the inadequate medical assistance offered to their daughter and mother in the SIZO. The court further stated that :", "“It should be noted that [the finding of Olga Bilaik's lack of medical treatment in the SIZO] does not mean that there is a causal link with Olga Bilaik's death, the circumstances of which have not been established during the hearings and are currently being considered by the Shevchenkovsky District Prosecutor's Office of Kyiv in the context of the criminal investigation into the death of Olga Bilaik.”", "72. The applicants were awarded 20,000 [2] Ukrainian hryvnas (UAH) in total for non-pecuniary damage. The claim for burial expenses was rejected as unsubstantiated.", "73. The SIZO and the applicants appealed against this judgment.", "74. On 24 May 2007 the Kyiv City Court of Appeal quashed the judgment of 27 October 2006 and remitted the case for fresh consideration on the ground that the first-instance court had failed to identify the medical staff who had examined Olga Biliak, diagnosed her, prescribed her treatment, etc. , and to decide whether they should have participated in the proceedings" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Constitution of Ukraine", "75. The relevant extract of the Constitution of Ukraine provides:", "Article 27", "“ Every person has the inalienable right to life.", "No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...”", "Article 28", "“Everyone has the right to respect for his or her dignity.", "No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”", "Article 55", "“Human and citizens'rights and freedoms shall be protected by the courts.", "Everyone shall be guaranteed a right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...", "Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”", "Article 56", "“Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties .”", "B. Code of Criminal Procedure, 1960", "76. The Code requires a competent authority to institute criminal proceedings if there is a suspicion that a crime has been committed. That authority is under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction (Article 4).", "77. Article 94 of the Code provides that criminal proceedings shall be instituted in the following cases :", "“ Criminal proceedings shall be instituted following :", "( 1) applications or communications from ... individuals; ...", "( 5) direct detection of signs of a crime by a body of inquiry, investigation, a prosecutor or a court.", "A case can be instituted only when there is sufficient information indicating a crime.”", "No criminal proceedings can be brought in the absence of a corpus delicti (Article 6).", "78. According to Article 165-1 § 3 of the Code, the decision of the body of inquiry, investigator, prosecutor or court to apply, change or discontinue a preventive measure (including pre-trial detention) should be communicated to the person concerned immediately.", "79. Article 236-1 of the Code provides:", "“Within seven days of notification, a decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings or a refusal of the higher prosecutor to quash such a decision can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...”", "80. The relevant part of Article 236-2 of the Code provides:", "“An appeal against the decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] in a single-judge formation within ten days of being lodged.", "The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made, examine them and inform the prosecutor and the appellant of the date on which the hearing of the appeal is listed.", "Having examined the case, the judge ... may take one of the following decisions:", "(1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries...", "(2) to dismiss the appeal ...”", "C. Civil Code, 2003", "81. Articles 1166 and 1167 of the Civil Code, as in force since 1 January 2004, provide for the possibility to claim pecuniary and non-pecuniary damages inflicted as a result of the unlawful decisions, actions or inactivity of an individual or a legal entity, including State bodies.", "D. Code of Civil Procedure, 2004", "82. Article 201 § 1 (4) of the Code of Civil Procedure provides in its relevant part:", "“The court must suspend its examination of a case if ...it is impossible to hear that case before the termination of another set of civil, criminal or administrative proceedings.”", "E. Pre- Trial Detention Act, 1993", "83. Article 20 § 4 reads as follows:", "“Rulings, judgments or decisions granting release shall be implemented immediately upon their receipt by the detention centre.”", "F. Medical Assistance and Sanitary Rules in SIZO, approved by Order No. 3/6 of the State Department for Enforcement of Sentences and the Ministry of Health on 18 January 2000 ( «Порядок медико - санітарного забезпечення осіб, які утримуються в слідчих ізоляторах та виправно - трудових установах Державного департаменту України з питань виконання покарань, затверджений наказом Державного департаменту України з питань виконання покарань та Міністерства охорони здоров'я України від 18 січня 2000 р. N 3/6 »)", "84. In accordance with Section 6.1.3 of the Rules, all persons should undergo an initial medical examination on their arrival at the SIZO. The results of this examination are entered in the SIZO medical register. During the examination the doctor should inform the detainee about the possibility of undergoing a HIV test.", "III. RELEVANT INTERNATIONAL DOCUMENTATION", "A. Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules (adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers'Deputies)", "85. The relevant extracts from the European Prison Rules read as follows:", "“ Medical services", "26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general heath administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.", "2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be staff of suitably trained officers.", "...", "30. 1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.", "2. The medical officer shall report to the director whenever it is considered that a prisoner's physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment. ”", "B. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [“CPT”]", "86. The relevant extract from the Report of the CPT on a visit to Ukraine from 24 November to 6 December 2002 reads as follows:", "“125. In addition to tuberculosis, the Ukrainian prison system is currently faced with an increase in the number of HIV-positive prisoners (Between 1987 and January 2002, 8,046 HIV-positive prisoners were identified. As of 1 October 2002, the prison system had 1,577 HIV-positive prisoners and 17 prisoners who had developed AIDS. It has to be added that the World Bank approved a $60 million loan for a tuberculosis and HIV/AIDS control programme in Ukraine, which includes considerable support for the penitentiary system ). The Department for the Execution of Sentences has therefore devised a priority strategy for curbing the spread of the virus, based on an awareness and information campaign targeting prisoners and prison staff, the introduction of confidential voluntary screening tests and follow-up after the tests, the provision of means of prevention and disinfection for prisoners and the absence of discrimination against HIV-positive prisoners. ”", "THE LAW", "I. SCOPE OF THE CASE", "87. The Court observes that further new complaints under Article 3 of the Convention were submitted after communication and in response to the Government's objections as to the admissibility and merits of the application, and concerned the authorities'failure to account for the injuries to Olga Biliak's hands, legs, left cheekbone and chin disclosed by the autopsy. The applicants also complained under Article 5 § 3 of the Convention that Olga Biliak had not been released pending trial; they thus challenged the whole period of her detention from 22 April 2003 until 1 February 2004.", "88. In the Court's view, the new complaints are related in a general sense to the present case, but do not constitute an elaboration of the applicants'original complaints to the Court communicated to the Government by the decision of 14 March 2006. The Court considers, therefore, that it is not appropriate to take this matter up separately now in the context of the present application (see, inter alia, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005, and Lyashko v. Ukraine, no. 21040/02, § 29, 10 August 2006 ).", "II. ALLEGED VIOLATION OF ARTICLES 2 AND 13 OF THE CONVENTION", "89. The applicants complained that the authorities had failed to provide Olga Biliak with the appropriate medical care while in detention and were thus responsible for her death. They also complained that the investigation into her death had been neither adequate nor effective.", "90. The applicants relied on Article 2 of the Convention, which, in its relevant part, reads as follows:", "“1. Everyone's right to life shall be protected by law. ...”", "91. They also relied on Article 13 of the Convention, which reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "92. The Government contended that the applicants'complaints about the death of Olga Biliak were premature since the applicant's civil action against the SIZO for non-pecuniary and pecuniary damage incurred as a result of the death of their daughter and mother was still under consideration by the domestic courts. They further submitted that the criminal complaint lodged by the applicants before the prosecutor's office was an effective remedy and that they had made successful use of it. Moreover, the investigation into the applicants'criminal complaint was still pending.", "93. The applicants stated that the remedies referred to by the Government were ineffective in their case.", "94. The Court recalls at the outset that where a violation of the right to life is alleged, the Convention organs have accepted applications from relatives of the deceased. For example applications have been brought by a deceased's wife ( Aytekin v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), a deceased's mother ( Çiçek v. Turkey, no. 25704/94, 27 February 2001), a deceased's father ( Hugh Jordan v. the United Kingdom, no. 24746/94, ECHR 2001-III (extracts)) and a deceased's brother and sister (see respectively Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV and Şemsi Önen v. Turkey, no. 22876/93, 14 May 2002). Therefore, the applicants in the present application can claim to be victims of the alleged violations under Article 2 of the Convention.", "95. The Court further recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants first to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but that no recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996 ‑ IV ).", "96. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means among other things that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant (see Akdivar and Others, cited above, § 69, and Aksoy, cited above, §§ 53 and 54).", "97. The respondent Government argued that two avenues of recourse were available to the applicants, namely a claim for damages and a criminal complaint.", "98. As regards the civil-law remedy, the Court recalls that in the cases of Afanasyev v. Ukraine ( no. 38722/02, § 77, 5 April 2005) and Kucheruk v. Ukraine (no. 2570/04, § 112, 6 September 2007), it dismissed the similar objection of the Government on the ground that in the absence of any results from the ongoing criminal investigation, the civil courts were prevented from considering the merits of claims relating to alleged criminal offences. In particular, the Court found that a claim for compensation could be lodged only against a particular person or persons. The remedy became futile if the offender was not identified and prosecuted. In particular, in the present case the national courts recognised the impossibility of deciding on the applicants'civil claims until the persons responsible for Olga Biliak's treatment were identified (see paragraph 74 above), and the Government did not provide any explanations as to whether this was possible in civil proceedings. Therefore, the Court sees no reason to depart in the present case from its previous findings.", "99. As regards criminal-law remedies, the Court considers that this limb of the Government's preliminary objection raises issues concerning the effectiveness of the criminal investigation in establishing the facts concerning, and responsibility for, the events of which the applicants complained. These issues are closely linked to the merits of the applicants'complaints under Articles 2 and 13 of the Convention. In these circumstances, it joins the preliminary objection to the merits of the applicants'complaints.", "100. The Court further notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds.", "B. Merits", "1. Alleged failure of the Ukrainian authorities to protect Olga Biliak's right to life", "101. The applicants maintained that Olga Biliak had died in detention because she had not received timely and adequate medical aid and that the SIZO management had been in possession of all the information needed in order to take adequate measures to save Olga Biliak's life. In particular, they indicated that the SIZO management had been well aware of Olga Biliak's HIV status since September 2003 at the latest and not merely since January 2004 as the Government had submitted. Moreover, Olga Biliak had been suffering not only from the HIV infection but from numerous other diseases for which she had also failed to receive any treatment.", "102. The Government claimed that Olga Biliak's death had not been a consequence of inadequate conditions of detention or medical assistance, but the outcome of an unpredictable development of the illness she had acquired prior to her placement in custody and of which she had failed to inform the prison authorities. The prison doctors had examined her on many occasions and prescribed appropriate medical treatment and medication. Their recommendations had been fully complied with. As soon as the prison authorities had started to suspect that she was HIV-positive they had undertaken all necessary measures, including requesting the prosecution authorities to authorise her release. According to the Government, all Olga Biliak's health complaints had been addressed in timely and adequate fashion by the prison doctors, and the State could not bear responsibility for any suffering of which she had not informed the authorities. The Government reiterated that since the investigation into the circumstances of Olga Biliak's death was still pending, they could not comment on the existence or absence of a violation of the Convention provision.", "103. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The first sentence of Article 2 enjoins the Contracting States not only to refrain from the taking of life “intentionally” or by the “ use of force ” disproportionate to the legitimate aims referred to in sub-paragraphs ( a) to ( c) of the second paragraph of that provision, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, inter alia, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998 ‑ III, and Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001 ‑ III).", "104. Persons in custody are in a particularly vulnerable position and the authorities are under an obligation to account for their treatment. Having held that the Convention requires the State to protect the health and physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see, inter alia, Keenan, cited above, § 111; Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; and McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003-...), the Court considers that, where a detainee dies as a result of a health problem, the State must offer an explanation as to the cause of death and the treatment administered to the person concerned prior to his or her death.", "As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person's right to life ( see Slimani v. France, no. 57671/00, § 27, ECHR 2004 ‑ IX (extracts) ).", "105. The Court notes that from 14 April 2003 until her death on 1 February 2004 Olga Biliak was in custody and, accordingly, under the control of the Ukrainian authorities. On her arrival at the SIZO, Olga Biliak was examined by a doctor and was found to be generally healthy (see paragraph 24 above). However, throughout her detention she suffered from various chronic illnesses such as a gastric ulcer, chronic bronchitis, pyelonephritis and other conditions which, exacerbated by her HIV infection, required constant medical supervision and appropriate treatment.", "106. The Court next notes the Government's argument that due to Olga Biliak's reluctance to disclose her HIV status, the authorities learned of this only at a very late stage. In this respect the Court observes that in a letter of 26 September 2003 the first applicant informed the SIZO management of the fact that his daughter was HIV-positive. The Court therefore rejects this submission of the Government and finds that at least as far back as September 2003 the prison authorities should have been aware of Olga Biliak's HIV status.", "107. In the light of this finding and having regard to the vulnerability of HIV-positive persons to other serious diseases, the Court finds the lack of medical attention to Olga Biliak's health problems striking. Although she was suffering from numerous serious diseases her treatment seems to have been very basic.", "108. In particular, in December 2003 and January 2004, when Olga Biliak developed serious respiratory problems, suffered from an extremely high body temperature and was losing weight rapidly – a state of affairs not contested by the Government –, her health problems were not addressed accordingly, and it was only on 21 January 2004 that a more in-depth diagnosis of her state of health was made.", "109. Moreover, the prison authorities not only refused to transfer Olga Biliak to a specialist hospital but also failed to move her to the medical wing of the SIZO. She remained on general location even after 22 January 2004, when the management of the SIZO acknowledged the need for her to be admitted to hospital and requested the investigating authorities'authorisation to release her on medical grounds.", "110. On 13 and 19 January 2004, that is, forty-four and fifty days respectively after Olga Biliak's condition started to deteriorate, the prosecution authorities refused her and her lawyer's requests for release, without addressing her health issues. Moreover, the prison management's application for her urgent release was acted upon only seven days later and the decision to release her was processed with a four-day delay, during which time she died of HIV-related diseases.", "111. The Court notes that according to the report of 17 November 2006 the death of Olga Biliak was indirectly caused by the inadequate medical assistance provided to her while she was in detention. The Government did not contest the accuracy of this report, nor did they produce any other medical evidence to refute this conclusion.", "112. Accordingly, the Court finds that there has been a violation of Article 2 of the Convention on account of the Ukrainian authorities'failure to protect Olga Biliak's right to life.", "2. Procedural obligations under Article 2 of the Convention", "113. The Government maintained that the investigation into Olga Biliak's death had been carried out by the Shevchenkivskyy Prosecutor's Office, a body independent from the prison authorities. The investigators had thoroughly examined the circumstances of the victim's death, commissioned medical examinations and assessed the other available evidence. The somewhat protracted nature of the investigation had been due to the need to obtain medical evidence. The Government reiterated that in the absence of a final decision on the applicants'criminal complaints they could not comment on whether or not there had been a violation of the State's procedural obligations under Article 2 of the Convention.", "114. The applicants did not submit any observations in this respect.", "115. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004 ‑ XII ). In particular, when a detainee dies in suspicious circumstances, an “ official and effective investigation ” capable of establishing the causes of death and identifying and punishing those responsible must be carried out of the authorities'own motion (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 7 4, ECHR 2002 ‑ II).", "116. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. Accordingly, the competent authorities must act with exemplary diligence and promptness, and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, mutatis mutandis, Sergey Shevchenko v. Ukraine, no. 32478/02, § 65, 4 April 2006 ).", "117. Turning to the circumstances of the present case, the Court, in the light of the above principles, finds that a procedural obligation arose under Article 2 of the Convention to investigate the circumstances of the death of the applicants'daughter and mother (see Slimani v. France, cited above, §§ 29-34). It considers that the criminal investigation into the death of Olga Biliak revealed some serious inconsistencies and deficiencies.", "118. The Court notes at the outset that the investigation into the applicants'complaints has lasted so far for four years and nine months and, apparently, is still pending. During this period the investigation authorities refused on three occasions to institute criminal proceedings, but these decisions were subsequently quashed by the national courts and the case was submitted for further investigation. In particular, in its first decision on 30 April 2004 the Shevchenkivskyy Court gave detailed instructions as to what evidence should be obtained and what circumstances established in the context of the investigation into the death of Olga Biliak. However, as the decisions of that court of 28 September 2005 and 12 July 2007 evince, those instructions have to date not been fully complied with by the investigating authorities.", "119. The Court also notes that the Shevchenkivskyy Prosecutor's Office's decisions of 21 February 2005 and 25 December 2006 not to institute criminal proceedings were taken before important evidence – the results of the additional inquiry and the additional medical evidence – had been obtained. Both these decisions were strikingly terse and limited to the finding that in the absence of the above evidence there was no indication that Olga Biliak's death had been caused by violence or medical negligence.", "120. The Court further observes that the investigation authorities have never properly addressed the main issue of the applicants'complaints – the quality of the medical treatment provided to Olga Biliak viewed in the context of the diseases she had been diagnosed with.", "121. Moreover, some parts of the investigation did not satisfy the minimum requirement of independence. In particular, a part of the witness evidence, namely the statements of Olga Biliak's cellmates, was obtained by the authority directly involved (see paragraph 52 above) (see, mutatis mutandis, Sergey Shevchenko v. Ukraine, no. 32478/02, § 70, 4 April 2006). No attempt was made by the prosecution to interview those persons again or to confirm their statements by any other means. This is especially striking given that the statements appear to be identical although provided by eight different persons.", "122. Finally, the Court notes that throughout the investigation the applicants were to a large extent excluded from the proceedings. Having no formal status in the proceedings, the applicants were denied access to the file and were never informed or consulted about any proposed evidence or witnesses. On some occasions the applicants did not receive any information about the progress of the investigation and, when it was discontinued on 21 February 2005, they were not informed of this development. On the contrary, the applicants were misled by the letter from the Kyiv City Prosecutor's Office of 11 April 2005, which stated that the investigation was still under way. It was not until August 2005 that they learned of the decision to discontinue it. Moreover, there was a lack of coordination even between the national authorities themselves since the decision of 21 February 2005 was quashed by the higher prosecutor although it had been already quashed by the court (see paragraphs 61-62 above). Accordingly, the investigation did not ensure the investigation and its results with a sufficient element of public scrutiny; nor did it safeguard the interests of the next-of-kin.", "123. In the light of these circumstances, the Court concludes that there has been a violation of the respondent State's obligation under Article 2 of the Convention because of the failure to conduct an effective and independent investigation into the death of Olga Biliak. It follows that the Government's preliminary objection (see paragraph 99 above) must be dismissed.", "3. Article 13 of the Convention", "124. The Government maintained that the civil claim lodged by the applicants was a remedy which the applicants had used effectively. Furthermore, they referred to the possibility for them to claim damages in a civil court.", "125. The applicants claimed that the investigation into the death of their mother and daughter, which had been limited to a pre-investigation examination ( дослідча перевірка ), had been insufficient. They also stated that the investigation had lacked independence and had been unduly delayed. Finally, the applicants submitted that their exclusion from the proceedings had been contrary to the requirement of public scrutiny.", "126. Having regard to its finding above under Article 2 of the Convention that the authorities failed to carry out an effective investigation into the circumstances of Olga Biliak's death (see paragraph 123 above), the Court does not find it necessary to examine this issue also in the context of Article 13 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "127. The applicants complained that during her detention in the SIZO Olga Biliak had been held in inadequate conditions. They relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "128. The Court notes that the applicants'complaint about the inadequate conditions of Olga Biliak's detention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "129. The applicants alleged that Olga Biliak had been held in seriously substandard conditions in the SIZO.", "130. The Government contested the applicants'arguments.", "131. The Court notes that these complaints arise out of the same facts as those considered under Article 2. In the light of its conclusion with respect to that Article (see paragraph 112 above), the Court does not consider it necessary to examine these complaints separately.", "IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "132. The applicants complained that Olga Biliak's detention between 29 January 2004 and 1 February 2004 had been unlawful. They relied on Article 5 § 1 of the Convention, the relevant part of which reads as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...”", "A. Admissibility", "133. The Government contended that the applicants'complaints were premature since the applicants'civil case was still under consideration by the domestic courts.", "134. The applicants stated that there were no effective remedies in respect of this complaint.", "135. The Court recalls that while the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention may apply as applicants in their own right (see paragraph 94 above), the Court has held that the rights guaranteed under Article 5 of the Convention belonged to the category of non-transferable rights (see, Bic and others v. Turkey (dec.), no. 55955/00, 2 February 2006). However, in a number of cases where unlawful detention was related to the disappearances of the applicants'next-of-kin, the Court held that the applicants could also raise complaints concerning such detention and found a violation of Article 5 of the Convention (see, Çakıcı v. Turkey [GC], no. 23657 /94, § 107, ECHR 1999 ‑ IV). Turning to the facts of the present case, the Court notes, without prejudging on the merits of the applicants'complaint, that Olga Biliak had to be released on 29 January 2004 because of her health problems but the decision on her release had not been enforced immediately as the national law provides and on 1 February 2004 Olga Biliak died. Therefore, the applicants'complaint about Olga Biliak's unlawful detention between 29 January 2004 and 1 February 2004 is closely linked to their complaint under Article 2 of the Convention and the applicants should be entitled to allege a violation of Article 5 of the Convention.", "136. The Court further notes that in their civil claim against the SIZO the applicants indeed indicated that their daughter and mother had died in the SIZO, inter alia, because of the failure of its management to release her immediately after the relevant decision had been taken. However, the main issue in the applicants'action before the national courts is the claim for compensation for the lack of proper medical assistance afforded to Olga Biliak while she was in detention. Furthermore, the applicants'claim was lodged against the management of the SIZO, whereas it is unclear from the documents provided by the parties whether the latter was solely responsible for the failure to immediately release Olga Biliak. In particular, the date on which the decision of 29 January 2004 reached the SIZO has not been definitively established. Moreover, the Court even has doubts about the date on which this decision was taken, since one day later the Head of the District Police Department requested the SIZO to bring Olga Biliak to the District Police Department on 2 February 2004, despite the fact that she should have already been released by that date (see paragraph 45 and 70 above). The Court further notes that the civil proceedings in question have already lasted for four years and four months for two instances and are apparently still pending before the first-instance court. In such circumstances, the Court is of the opinion that this remedy cannot be regarded as effective within the meaning of Article 35 § 1 of the Convention.", "137. The Court therefore dismisses this objection. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds.", "B. Merits", "138. The applicants contended that the decision of 29 January 2004 on Olga Biliak's release had not been executed for three days. Such a delay could not be justified by the necessity of completing administrative formalities and her detention had thus been unlawful within the meaning of Article 5 § 1 of the Convention.", "139. The Government reiterated that in the absence of the final decision in the applicants'civil case, they could not comment as to whether or not there had been a violation of the applicant's right to liberty.", "140. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000 ‑ IX ).", "141. The Court observes that Article 165-1 of the Code of Criminal Procedure stipulates that the detained person should be immediately informed of the decision to release him or her. Article 20 of the Pre-trial Detention Act provides that the management of the detention centre is obliged to discharge the detained person immediately on receipt of the release order. It is not in dispute that none of the above was done in the present case.", "142. The Court therefore finds that the detention of Olga Biliak from 29 January to 1 February 2004 was not lawful within the meaning of Article 5 § 1 (c).", "143. There has thus been a violation of Article 5 § 1 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "144. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "145. In respect of pecuniary damage the applicants claimed UAH 2,600 [3] for the money they spent on Olga Biliak's medication while in detention and the costs of her funeral. The applicants also claimed UAH 300,000 [4] in respect of non-pecuniary damage.", "146. As to the amount claimed in respect of pecuniary damage, the Government stated that the applicants have produced documents only in support of the medical expenses in the amount of UAH 1,901 [5]. While conceding to the fact that the applicants had incurred certain expenses in connection with Olga Biliak's funeral, the Government pointed out that they had failed to produce any evidence proving the exact sum of these costs.", "147. As regards non-pecuniary damage, the Government maintained that the amount claimed by the applicants was unsubstantiated and exorbitant.", "148. The Court notes that on 14 December 2006 the applicants were requested to submit by 29 January 2007 their claims for just-satisfaction. They failed to submit any such claims within the required time-limits but a month later without any explanation of the delay.", "149. In such circumstances the Court would usually make no award. In the present case, however, the Court has found a violation of Article 2 of the Convention. Since this right is of a fundamental character, the Court finds it possible, exceptionally, to award the applicants EUR 7,000 each by way of non-pecuniary damage (see, Nadrosov v. Russia, no. 9297/02, § § 53-54, 31 July 2008 ), plus any tax that may be chargeable.", "B. Costs and expenses", "150. The applicants also claimed USD 10,000 [6] for the costs and expenses. In this respect they have provided two agreements concluded between the first applicant and Ms Shevchenko, the first one for amount of UAH 10,000 [7] for legal representation in the criminal proceedings against Olga Biliak, and the second one for UAH 7,000 [8] for legal representation in the proceedings on the applicants'criminal complaints (see paragraphs 46-65).", "151. The Government invited the Court to disregard the claim for costs incurred during the Convention proceedings, referring to the fact that the applicants were granted legal aid before the Court. The Government further maintained that the applicants'claim was exaggerated and not supported by the relevant documents.", "152. The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and are reasonable as to quantum (see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII). The Court considers that these requirements have not been fully met in the instant case. In particular, it finds that the claim for reimbursement of fees for legal representation in the criminal proceedings against Olga Biliak cannot be granted since these proceedings are not related to the violations found by the Court in the present case. However, it is clear that the applicants have already bore some legal expenses, given the steps taken by their lawyers at the domestic level in the criminal proceedings following the applicant's complaints about the death of Olga Biliak.", "153. Having regard to all the relevant factors, the Court awards the first applicant EUR 1,900, which, less EUR 850 received in legal aid from the Council of Europe, comes to EUR 1,050 in respect of costs and expenses, plus any tax that may be chargeable on that amount.", "C. Default interest", "154. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first applicant was born in 1981 and died on 2 August 2008. The second applicant was born in 1955 and lives in the town of Zuya in Crimea.", "A. Background information", "7. On 30 September 2005 the first applicant tested HIV positive.", "8. On 2 February 2006 the Centre for the Prevention and Combating of Aids in Crimea (“the Aids Centre”) informed him of the test results and invited him to register for medical monitoring. The first applicant did not, however, follow the advice (see also paragraphs 21 and 59 below).", "B. Criminal proceedings against the first applicant and his medical treatment in detention", "9. On 20 November 2007 the first applicant was arrested by the police on suspicion of having robbed an acquaintance of a mobile phone. According to the second applicant, on the same day her son informed the investigator about his HIV status and expressed the fear that his health might deteriorate in detention. This information was allegedly ignored. According to the Government, the first applicant did not disclose his HIV status.", "10. The first applicant was placed in the Temporary Detention Facility of the Bakhchysaray Police Station (“the ITT”). The officer on duty examined him and reported that he had no visible injuries and had raised no complaints.", "11. On 23 November 2007 the Bakhchysaray District Court (“the Bakhchysaray Court”) remanded the first applicant in custody pending trial.", "12. On 30 November 2007 the first applicant was X-rayed in the local polyclinic; no lung pathology was revealed.", "13. On 2 December 2007 he was taken from the ITT to Simferopol Pre-Trial Detention Centre no. 15 (“the SIZO”), where he was examined by a therapist (general practitioner), a dermatologist, a dentist and a psychiatrist. All found him to be in good health. According to the medical records, the first applicant did not have any health-related complaints and did not report any illnesses. His height and weight were recorded as 180 cm and 78 kg respectively.", "14. The first applicant was detained in the SIZO from 2 to 28 December 2007, then subsequently from 10 January to 10 February 2008, and from 18 February to 2 June 2008. During the intervening periods, from 28 December 2007 to 10 January 2008, from 10 to 18 February, and from 2 to 20 June 2008, he was held in the ITT.", "15. According to the records of his medical examinations of 10 January and 10 and 18 February 2008, he appeared to be in good health and did not raise any health-related complaints.", "16. According to the SIZO medical register, on 28, 29 and 30 May 2008 the first applicant complained of nasal stuffiness, rhinitis, and a sore throat. The SIZO therapist diagnosed him with an “acute respiratory viral infection” and prescribed medication.", "17. As to the intervening period between the aforementioned records of 18 February and 28 May 2008, no documents are available in the case file. The applicants submitted, however, that in early March 2008 the first applicant’s health had sharply deteriorated. He allegedly had a constant fever of 39-40ºC and suffered from serious digestive disorders. According to the applicants, the administration of the detention facilities called for an ambulance in that regard on many occasions. The nature of the ambulance interventions remained unclear.", "18. On 31 May 2008 the first applicant was additionally examined by an infectious disease specialist at the SIZO, who issued a note stating the following. The first applicant had been complaining of experiencing fevers and losing weight for the preceding two months. The doctor recommended an HIV test, to which the first applicant agreed. The test was scheduled for 2 June 2008. However, it did not take place because of the first applicant’s transfer from the SIZO to the ITT (see paragraph 14 above).", "19. On 2 June 2008, following another transfer from the SIZO to the ITT, the first applicant complained to the ITT medical attendant about feeling weak and having fever and back pain. The medical attendant administered some antipyretics to him.", "20. On 3 June 2008 the first applicant was taken to the Central Hospital, where he was examined by a therapist and underwent ultrasound scans of his liver, gallbladder, pancreas, spleen and kidneys. The following tests were also carried out: chest X-ray, electrocardiogram, esophagogastroduodenoscopy, as well as general blood and urine analyses. The therapist diagnosed the applicant with an ulcer, gastrointestinal hemorrhage, haemorrhoids, chronic bronchitis, and suspected HIV infection.", "21. On 4 June 2008 the Chief Doctor of the Aids Centre informed the second applicant, in reply to her enquiry of 3 June 2008, that her son had tested HIV positive on 30 September 2005, and had been informed of the result on 2 February 2006, but that he was not registered for monitoring in that Centre.", "22. On 5 June 2008 the first applicant was again taken to the Central Hospital, this time for examination by an infectious disease specialist. According to a note issued by the doctor, the first applicant complained to him about suffering from stomach aches, mouth lesions, a skin rash, coughing, and shortness of breath. He also complained of having lost about 10 kg during the preceding three months. Having examined the first applicant, the doctor diagnosed him with pneumocystis pneumonia, oropharynx-esophagus candidiosis (thrush) and an ulcer. Moreover, he concluded that the symptoms disclosed HIV infection at the fourth clinical stage. While the doctor assessed the first applicant’s condition as being “moderately severe” and noted that he required medical treatment for the aforementioned conditions, a general conclusion was reached that there was no urgent need for hospitalisation.", "23. The first applicant’s mother was informed of the diagnoses. She bought the prescribed medications, and the ITT medical attendant administered them to her son.", "24. On 6 June 2008 the first applicant’s lawyer requested the Bakhchysaray Court to release his client on account of his critical state of health. He noted that the first applicant required urgent specialised medical treatment because he had HIV infection at the fourth clinical stage and concomitant oesophagal candidosis and pneumocystis pneumonia. The lawyer stated that the first applicant’s life hung in the balance and that in order to save it he needed to be at liberty so as be able to seek proper medical care. Moreover, the lawyer pointed out, his client had a permanent place of residence and he had neither absconded from the investigation nor hindered it in any way. Furthermore, given his desperate health condition he did not present any danger to society.", "25. The Bakhchysaray Court rejected the above-mentioned request (this ruling is not available in the case file before the Court).", "26. On 11 June 2008 the Bakhchysaray District Prosecutor’s Office instructed the local police department to take the first applicant to the Central Hospital for another examination with a view to clarifying whether his state of health was compatible with detention.", "27. On 13 June 2008 the first applicant was taken to the Central Hospital, where he was again examined by an infectious disease specialist. The doctor reached a preliminary conclusion that the first applicant was suffering from HIV infection at the second clinical stage, which did not necessitate urgent hospitalisation. A further examination in the Aids Centre was recommended with a view to deciding on the necessary medical treatment. The doctor also made arrangements for the first applicant to have laboratory tests, such as blood and urine analyses and a sugar test, and a chest X-ray.", "28. On 16 June 2008 the applicants requested the Court to indicate to the Ukrainian Government, under Rule 39 of the Rules of Court, that the first applicant should be hospitalised and treated as a matter of urgency given the serious deterioration of his health and the alleged lack of adequate medical treatment.", "29. On 17 June 2008 the President of the Fifth Section decided to grant that request and to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the first applicant “should be transferred immediately to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition until further notice.” On the same day (Tuesday, a working day) a fax message was sent to the Government informing them of this decision.", "30. On 18 June 2008 the first applicant’s lawyer once again requested the Bakhchysaray Court to release his client. He reiterated that the first applicant’s life was in danger. The lawyer also referred to the aforementioned decision of the Court regarding the application of Rule 39 of the Rules of Court in the first applicant’s case.", "31. On the same date, 18 June 2008, following another enquiry by the Bakhchysaray police about the need for the first applicant’s hospitalisation, the Chief Doctor of the Infectious Diseases Department of the Central Hospital stated that the first applicant did not require urgent hospitalisation.", "32. As a result, the Bakhchysaray Court rejected the first applicant’s request for release submitted earlier that day.", "33. On 18 June 2008 the second applicant complained to the Chief Doctor of the Central Hospital about the alleged failure of its staff to provide her son with adequate medical assistance in spite of the applications she had made in that regard on 4 and 5 June, as well as twice on 13 June 2008. She insisted that his life was in danger. According to the second applicant, her son had never undergone a complete medical examination. She considered that the doctors were avoiding treating him because he was, firstly, HIV-positive and, secondly, a detainee.", "34. On 20 June 2008 the first applicant was taken to the Aids Centre, where the following diagnoses, classified as preliminary, were established: HIV infection at the fourth clinical stage, systemic candidosis of the oropharynx and oesophagus, continuous fever with expressed intoxication syndrome, a loss of body weight of more than 15%, and seborrheic dermatitis of the scalp. The doctors at the Aids Centre concluded that he required an additional examination with a view to clarifying the diagnoses, as well as in ‑ patient medical treatment.", "35. On the same day, he was transferred to the Central Hospital, where he was placed in a ward under police guard. According to the second applicant, her son was kept continuously handcuffed to his bed. She submitted to the Court his two photos taken on 25 June 2008. They showed the first applicant with his left hand handcuffed to the hospital bed. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which referred to the first applicant’s medical file in the Central Hospital, on 20 June 2008 he arrived there handcuffed. However, it was not recorded in the medical file whether he remained handcuffed throughout his treatment in that hospital.", "36. At some point on 20 June 2008 the first applicant wrote an “explanatory note” to the police, according to which he had informed neither the SIZO nor the ITT administration about his HIV infection “for understandable reasons”. After his mother had informed them that he might have that diagnosis, on 5 and 13 June 2008 he had undergone medical examinations in the Central Hospital resulting in the prescription of certain medication. The medical attendant had later administered that medication to him in the ITT. The first applicant stated that he had no complaints about the ITT staff. According to the second applicant, however, her son had written the aforementioned note under duress.", "37. On 24 June 2008 the first applicant wrote another note in which he stated that he had started to feel unwell during his detention (the date is illegible on the available copy). He noted that he had sought examination by a therapist on account of his continuous fever, as well as kidney, liver and intestinal pain. The medical attendant had been sent to him instead and had merely given him antipyretics. As he had not got any better, at some point between 22 and 25 May 2008 the medical attendant had begun administering injections of ceftriaxone (an antibiotic) to him. The fever and backache had, however, not ceased. As a result, on 29 May 2008 he had been placed in the SIZO hospital, without any changes to his treatment. Following his transfer to the ITT, on 4 June 2008 he had started to intake some other medicines which had been bought by his mother.", "38. On 24 June 2008 the first applicant’s lawyer again requested the release of his client, referring to the seriousness of his condition, as well as to the fact that the prosecutor did not object to his release.", "39. On the same date the Bakhchysaray Prosecutor requested the judge dealing with the first applicant’s criminal case to bring forward the hearing scheduled for 3 July 2008 given “the critical condition” of the first applicant and the need for him to undergo treatment in Simferopol Hospital no. 7, which specialised in the treatment of Aids (“Hospital no. 7”). The prosecutor noted the necessity to examine the aforementioned release request promptly.", "40. On an unspecified date (possibly 4 July 2008 – see paragraph 47 below) the Bakhchysaray Court rejected the aforementioned request for the first applicant’s release.", "41. On 26 June 2008 the Chief Doctor of the Central Hospital responded to the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance. He noted that the available medical records were insufficient for evaluating the development of his disease over time. The requests for medical assistance addressed to the Hospital had been of a contextual nature and assistance had been duly provided.", "42. On the same day the first applicant was transferred from the Central Hospital to Hospital no. 7.", "43. According to an extract from his medical record while in Hospital no. 7, his diagnoses included those established by the Aids Centre on 20 June 2008 (see paragraph 34 above), plus the following: pneumocystis pneumonia, second-degree anaemia, heavy immunosuppression (the CD4 count [1] being 48 cells/mm 3 ), and encephalitis of unclear origin. Furthermore, toxic hepatitis, hepatolienal syndrome, superficial gastritis, and duodenogastric reflux were indicated as concurrent illnesses.", "44. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which further referred to information from the management of Hospital no. 7, the first applicant had been handcuffed during his treatment in Hospital no. 7 from 26 June to 18 July 2008. At the same time, it was noted in the aforementioned letter that there was no information as to whether the handcuffing had been constant.", "45. On 2 July 2008 the ITT Governor examined the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance and delivered a decision refusing to launch a criminal investigation into the matter. He noted that the first applicant had hidden from the administration the fact that he was HIV-positive. In any event, he had received adequate medical care during his detention in the ITT.", "46. On the same day the Chief Doctor of Hospital no. 7 wrote to the Chief of the Bakhchysaray Police Department, stating that the first applicant required lengthy medical treatment, that he needed to be unrestricted in his movements, and that any interruption in his treatment would trigger a sharp deterioration in his health.", "47. On 4 July 2008 the Bakhchysaray Court found the first applicant guilty of fraud (instead of the robbery charge advanced by the prosecution – see paragraph 9 above) and sentenced him to a fine of 850 Ukrainian hryvnias (at the time equivalent of 115 euros). It was noted in the judgment that, until it became final the first applicant was to remain in detention.", "48. On 10 July 2008 antiretroviral therapy began to be administered to the first applicant in Hospital no. 7. According to the information provided by the Public Health Ministry in its letter to the Government Agent of 23 October 2009, the first applicant had refused – apparently on one occasion – to take the prescribed medication.", "49. On the same date, 10 July 2008, the second applicant requested the Chief of the Bakhchysaray Police Department to allow her to visit her son and to take care of him in the hospital given his critical condition. She also complained to the Bakhchysaray Prosecutor about the first applicant’s continuous handcuffing and sought its discontinuation.", "50. On 15 July 2008 the Chief of the Bakhchysaray Police replied to the second applicant that her son would in any case soon be released once the judgment of 4 July 2008 became final.", "51. On 18 July 2008 the first applicant’s lawyer also sought discontinuation of the handcuffing, noting that it was already clear that his client was about to die; nevertheless, he remained guarded by two police officers in a ward with barred windows, handcuffed to his bed. Such security measures were not only unjustified, but also inhuman. The lawyer further submitted that, as the second applicant had discovered, certain police officers guarding her son had mockingly offered him to install a cable in the ward and to handcuff him to that cable so that his movements would be “practically unrestrained”.", "C. The first applicant’s medical treatment after his release from detention and his death", "52. On 18 July 2008 the police lifted the security measures in respect of the first applicant (apparently on the ground that the judgment of 4 July had become final), and the second applicant took him home. She wrote a note to the administration of Hospital no. 7 stating that she was taking her son home “for family reasons”.", "53. On the following day, however, the first applicant was hospitalised again in Hospital no. 7 because of a deterioration in his health.", "54. On 1 August 2008 the second applicant took him home again, having written a note to the hospital administration similar to that of 18 July 2008.", "55. On 2 August 2008 the first applicant died.", "D. Investigation into the death of the first applicant", "56. Following the death of her son, the second applicant complained to the prosecution authorities about the alleged denial of timely and adequate medical care available for him in detention which, according to her, had led to his death.", "57. On 20 January 2009 the Bakhchysaray Prosecutor informed her that the ITT governor’s decision of 2 July 2008 (see paragraph 45 above) had been quashed and the investigation into the medical assistance provided to the first applicant had been resumed.", "58. On 17 February 2009 the Ministry of Public Health set up a commission for investigating the matter.", "59. On 20 March 2009 the commission issued an official investigation report which concluded that the Central Hospital’s doctors bore no responsibility for the first applicant’s death. It noted that although the Aids Centre had informed him about his HIV-positive status and had explained to him the necessity of medical monitoring as early as on 2 February 2006, the first applicant had not sought any medical examinations or monitoring. As a result, the antiretroviral therapy had not been started in good time, thus complicating the development of the disease. The commission gave its general findings as follows:", "“1. Medical care to persons in custody is the duty of the police medical staff.", "2. Specialists of the Central Hospital do not provide medical consultations or examinations to persons in custody without being called on to do so by the [detention facilities’] personnel.", "3. The [first applicant] benefited from examinations, specialist consultations, laboratory tests and treatment in Central Hospital fully and according to the approved standards.", "4. The deterioration of [his] health and the complications are attributable to the delay in his application for medical care after testing HIV-positive, as well as the severity of the main disease, which triggered irreversible processes in [his] organism.”", "60. On 23 March 2009 the second applicant again complained to the Bakhchysaray Prosecutor. She referred, in particular, to the allegedly unjustified conclusion of the infectious disease specialist of 13 June 2008, according to which her son had not required urgent hospitalisation at that time (see paragraph 27 above).", "61. On 31 March 2009 the Bakhchysaray Prosecutor refused to institute criminal proceedings against the police or the Central Hospital’s staff, finding the second applicant’s complaint to be unsubstantiated.", "62. On 3 April 2009 the Bakhchysaray Prosecutor quashed the decision of 31 March 2009 as further investigation was required, which was to include the following measures: questioning of the second applicant, the ITT staff, and the Central Hospital doctors concerned.", "63. On 4 May 2009 the second applicant was questioned by the prosecutor. She submitted that her son’s health had started to deteriorate drastically in March 2008 and that he had not received prompt and adequate medical treatment. According to her, the administration of the detention facilities had merely called for an ambulance on several occasions. She insisted on the seizure and examination of all the medical documentation regarding her son – from the ITT, the SIZO, the Central Hospital and Hospital no. 7 – with a view to an evaluation of his medical needs and the actual response to them from November 2007.", "64. On 25 May 2009 the Bakhchysaray Prosecutor refused to open criminal proceedings against the police or the Central Hospital’s staff, on account of lack of corpus delicti in their actions. He relied, in particular, on the conclusions of the Ministry of Public Health’s commission (see paragraph 59 above), as well as statements by police officers and doctors.", "65. On 18 August 2009 the Bakhchysaray Court upheld that decision. It noted that the first applicant had himself raised no complaints against the police or medical staff. Furthermore, it appeared that as soon as the authorities had become aware of his HIV status they had provided him with adequate medical treatment.", "66. On 13 October 2009 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the ruling of 18 August 2009 and allowed the second applicant’s appeal. It criticised the investigation, in particular, for its failure to give any consideration to the first applicant’s state of health and the medical assistance, if any, provided to him in detention from 20 November 2007 to early June 2008. Furthermore, the appellate court noted that the impugned ruling had been delivered by the first-instance court in the second applicant’s absence and without any proof that she had been duly notified of the hearing. It remitted the case to the Bakhchysaray Court.", "67. On 23 October 2009 the First Deputy Minister of Public Health sent a letter to the Government Agent, in reply to the latter’s enquiry following the communication of the application to the Government by the Court (see also paragraphs 35, 44 and 48 above). It contained the following conclusions:", "“1. The reasons for the deterioration of the [first applicant’s] health and the complications in the development of [his] disease were as follows: the delayed application of [the first applicant] to [the Aids Centre] for specific medical assistance (since 2005), the seriousness of the main disease (Aids), and the irregularities in his antiretroviral treatment (there were refusals [on his part] to take the medication).", "2. The death of the [first] applicant is not related to his medical treatment or the conditions in the medical facilities where he was held. It was caused by the gravity of the main disease, which triggered irreversible processes in [his] organism.”", "68. On 17 December 2009 the Bakhchysaray Court quashed the decision of 25 May 2009 (see paragraph 64 above) and remitted the case to the Bakhchysaray Prosecutor for additional investigation.", "69. On 19 August 2010 the Bakhchysaray Prosecutor ordered a forensic medical examination with a view to responding to the following questions:", "(1) Did the Central Hospital’s therapist establish correct diagnoses in respect of the first applicant on 3 June 2008 (for details see paragraph 20 above)?", "(2) Were the diagnoses established by the infectious disease specialist on 5 June 2008 (for details see paragraph 22 above), as well as his conclusion that the first applicant did not require urgent hospitalisation, correct?", "(3) Given the diagnoses established on 5 June 2008, did the first applicant indeed not require urgent hospitalisation and could be detained in the ITT or the SIZO?", "(4) Did the Central Hospital’s doctors prescribe correct medical treatment for the first applicant?", "(5) Did the Central Hospital’s doctors act correctly in ordering the laboratory tests for the first applicant (blood and urine analyses, a sugar test, and chest X-ray) only on 13 June, and not on 3 or 5 June 2008?", "(6) On 18 June 2008, following a repeated enquiry by the Bakhchysaray police as to the need for the first applicant to be hospitalised, the Chief Doctor of the Infectious Diseases Department of the Central Hospital issued a note stating that the first applicant did not require urgent hospitalisation. Did the doctor assess the seriousness of the first applicant’s condition correctly? Were her conclusions correct?", "(7) Was it lawful on the part of the medical staff of Hospital no. 7 to discharge the first applicant on 18 July 2008, given that his mother’s request for him to be discharged did not contain any indication that she had been warned about the possible negative consequences?", "(8) Were the actions of the medical staff in compliance with the legislation? Was there any causal link between the actions of the police and the medical staff and the death of the first applicant?", "70. On 26 November 2010 the Crimea Republic Bureau for Forensic Medical Examinations completed its expert report.", "71. Referring to the absence of medical documentation regarding the first applicant’s examination on 3 June 2008, it found it “extremely difficult” to answer question (1).", "72. As to questions (2) and (3), the experts concluded that the diagnoses established by the infectious disease specialist on 5 June 2008 had not been based on a thorough examination of the first applicant and had not reflected the seriousness of his condition, in particular, the fever and the haemodynamic parameters. The experts concluded that the doctor’s finding that the first applicant’s urgent hospitalisation was not required on 5 June 2008 did not correspond to the diagnoses established. They noted that he had been diagnosed, in particular, with pneumocystis pneumonia, which would alone have warranted his urgent hospitalisation for in-patient medical treatment. The doctor’s prescription of antibacterial and antifungal medication for the first applicant was found to be correct (this was apparently the reply to question (4), which was not specified).", "73. In reply to question (5), the experts found that the doctors’ decision of 13 June 2008 on the necessity of further laboratory examinations complied with the applicable medical standards. They noted that such laboratory tests had already been carried out on 4 June 2008 (from the documents in the case file it appears that the correct date was 3 June 2008 – see paragraph 20 above), but had needed to be further verified.", "74. The expert commission replied to question (6) that at the time of his examination on 18 June 2008 the first applicant had required urgent hospitalisation and in-patient medical treatment.", "75. As regards questions (7) and (8), the experts noted that they were not competent to make a legal assessment of the doctors’ actions. Given the absence of an autopsy report, the commission found it impossible to determine the cause of the death of the first applicant or to establish whether there was a causal link between the time of his hospitalisation for specialised treatment and his death.", "76. On 27 December 2010 the Bakhchysaray Prosecutor instituted a criminal investigation into the failure of the Central Hospital’s doctors to comply with their professional obligations. This decision was mainly based on the expert commission’s findings of 26 November 2010. It stated, in particular, as follows:", "“The prosecutor’s investigation has collected sufficient evidence of inadequate compliance by the medical officials with their professional duties due to negligence. The delayed hospitalisation and, accordingly, the delayed provision of medical assistance to [the first applicant] contributed considerably to the deterioration of his health, which amounted to a grave consequence for him.”", "There is no information in the case file on any further developments in this investigation or its outcome.", "77. On 29 April 2011 the Bakhchysaray Prosecutor delivered a decision refusing to institute criminal proceedings against the staff of the ITT or the SIZO in connection with the medical assistance provided to the first applicant. Referring to the medical records of 20 November and 2 December 2007, 10 January, 10 and 18 February and 28 May 2008, as well as later medical documentation, the prosecutor did not discern anything criminal in the actions of the administration of the detention facilities.", "78. On 9 August 2011 the Bakhchysaray Court upheld that decision having dismissed the second applicant’s complaint to that regard.", "79. On 22 September 2011 the Crimea Court of Appeal quashed the ruling of the first-instance court and remitted the case back to it for fresh examination.", "80. On 16 November 2011 the Bakhchysaray Court again rejected the second applicant’s complaint.", "81. On 13 March 2012 it however reconsidered its position, apparently after a repeated complaint from the second applicant. The Bakhchysaray Court quashed the prosecutor’s ruling of 29 April 2011 and remitted the case for additional investigation. It noted that the investigation undertaken only indirectly concerned the ITT personnel and did not concern at all the SIZO administration or medical staff. Moreover, the SIZO personnel whose duty was to respond to the first applicant’s complaints had not even been identified. The Bakhchysaray Court also observed the lack of information in the file as regards any record-keeping of the first applicant’s health-related complaints or showing the absence of such complaints during his detention.", "82. The Court has not been made aware of any further developments." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "83. The Rules on Medical and Sanitary Care in Detention Centres and Penitentiaries, approved by Decree no. 3/6 of 18 January 2000 of the State Department for the Enforcement of Sentences, stipulate that medical assistance to HIV-infected persons is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations stating that accessible, informative and supportive counselling should be available before and after HIV-testing (annex 28 to paragraph 4.3.4).", "84. The relevant provisions of Decree No 186/607 of 15 November 2005 of the Ministry of Health and the State Department for the Enforcement of Sentences on the Antiretroviral Treatment of Persons with HIV/Aids Detained in Prisons and Pre-Trial Detention Centres are summarised in the case of Yakovenko v. Ukraine (no. 15825/06, §§ 49-52, 25 October 2007).", "85. Article 18 of the Pre-trial Detention Act (1993) sets out rules governing the use of security measures, including the use of handcuffs. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs and truncheons, with a view to suppressing physical resistance, violence, outrage ( безчинства ) and opposition to the lawful directions of the authorities of the detention facility, when other means of achieving a legitimate objective have proved ineffective. The type of security measure and the time and manner of its use depend on the particular circumstances of the case and the personality of the detainee.", "86. Article 140 § 1 of the Criminal Code penalises medical negligence which has led to grave consequences for the patient by “debarring from the holding of certain offices or pursuing certain activities” for a term of up to five years, or by correctional work for up to two years, or by restriction or deprivation of liberty for the same term.", "III. RELEVANT INTERNATIONAL MATERIALS", "87. The relevant extracts from the third General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:", "“ a. Access to a doctor", "...", "35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...", "Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.", "36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...", "37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.”", "b. Equivalence of care", "38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.", "There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).", "39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.", "Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.", "40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”", "88. The guidelines of the World Health Organisation (“WHO”) on antiretroviral therapy for HIV infection in adults and adolescents can be found in the judgment in the case of Kozhokar v. Russia, no. 33099/08, §§ 77-79, 16 December 2010.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT", "89. Both the first applicant, while still alive, and the second applicant, in maintaining her son’s application and joining the case on her own behalf after his death, complained that the State had failed to protect his health, physical well-being and life, contrary to Articles 2 and 3 of the Convention. The second applicant further complained under Article 3 of the Convention about her son’s handcuffing in hospital. Lastly, she complained that the domestic investigation into his death had been ineffective.", "90. Articles 2 and 3 of the Convention, relied on by the applicants, read as follows in so far as relevant:", "Article 2.", "“1. Everyone’s right to life shall be protected by law.”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. Victim status", "91. The Court notes at the outset that the second applicant may claim to be a victim within the meaning of Article 34 of the Convention of the violations alleged by and on behalf of her late son under Articles 2 and 3 of the Convention (see Renolde v. France, no. 5608/05, § 69, 16 October 2008).", "2. Exhaustion of domestic remedies as regards the medical care provided to the first applicant and his death", "92. The Government argued that the above complaints were premature. They noted, in particular, that the criminal investigation (instituted on 27 December 2010) regarding the medical assistance provided to the first applicant by the Central Hospital’s doctors had not yet been completed. The Government further observed that – as of the date of their observations – the second applicant had not challenged the decision of the Bakhchysaray Prosecutor of 29 April 2011 refusing to institute criminal proceedings against the staff of the ITT and the SIZO in connection with the medical care provided to the first applicant during his detention in those facilities.", "93. The second applicant submitted that after the domestic authorities had dismissed her son’s numerous requests for release and for specialised medical treatment, which he had raised in an attempt to save his life, there remained no effective domestic remedies for her to exhaust after his death. She further expressed the view that, in any event, the domestic investigation into the circumstances of the first applicant’s death had been slow and ineffective. The second applicant therefore considered it pointless to await its completion.", "94. As regards the rule of exhaustion of domestic remedies, the Court emphasises that it must be applied with some degree of flexibility and without excessive formalism. The Court has already held on a number of occasions that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV, and Aksoy v. Turkey, 18 December 1996, §§ 53-54, Reports 1996-VI). The Court looks, in particular, whether the applicant did everything that could reasonably be expected in order to exhaust available domestic remedies (see Merit v. Ukraine, no. 66561/01, § 58, 30 March 2004).", "95. The Court observes that the Government’s objection in the present case raises issues which are inextricably linked to the question of the effectiveness of the domestic investigation into the first applicant’s death. Given the second applicant’s complaint about the alleged ineffectiveness of the investigation in question, the Court would normally join this objection to the merits of the aforementioned complaint (see, for example, Matushevskyy and Matushevska v. Ukraine, no. 59461/08, § 66, 23 June 2011). However, the particular circumstances of this case call for a different approach.", "96. It is noteworthy that, in assessing the effectiveness of a domestic remedy for a complaint under Articles 2 and 3 of the Convention with regard to lack of sufficient care for an applicant suffering from an illness in detention, the Court considers that a decisive question is whether that remedy can bring direct and timely relief. Such a remedy can, in principle, be both preventive and compensatory in nature. Where the applicant has already resorted to either of the available and relevant remedies, considering it to be the most appropriate course of action in his or her particular situation, the applicant should not then be reproached for not having pursued an alternative remedial course of action (see, mutatis mutandis, Melnik v. Ukraine, no. 72286/01, §§ 68 and 70, 28 March 2006).", "97. The Court observes that the parties are in dispute as to when the authorities became aware of the first applicant’s HIV status. It will deal with this particular issue later, when assessing the merits of the case. In order to establish whether the rule of exhaustion of domestic remedies has been respected, it suffices for the Court to note the numerous requests for release on health grounds lodged by the first applicant in June 2008 with the court dealing with his criminal case. Those requests, in the Court’s view, clearly voiced the first applicant’s fears for his life (see and compare with Dybeku v. Albania, no. 41153/06, § 28, 18 December 2007, and Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 54, 22 November 2011).", "98. In other words, at the most pertinent time, when the first applicant was still alive and could personally care for his well-being, he did everything reasonable, at least from early June 2008 onwards, to alert the relevant authorities to his progressing HIV infection and the concomitant diseases, seeking preventive remedial action for the grievances set out in the present application. In such circumstances, it would be wholly inappropriate, from the point of Article 35 § 1 of the Convention, to reproach the second applicant for not having retrospectively pursued any compensatory remedy by seeking completion of the criminal investigation and getting redress for the State’s failure to protect her son’s health and life (see Makharadze and Sikharulidze v. Georgia, cited above, § 55).", "99. The Court therefore considers that the first applicant sufficiently pursued a preventive domestic remedy for the exhaustion requirement to be complied with.", "100. Accordingly, the Court dismisses this objection by the Government without joining it to the merits of the complaint about the effectiveness of the domestic investigation into the first applicant’s medical treatment and death.", "3. Exhaustion of domestic remedies as regards the first applicant’s handcuffing in hospital", "101. The Government submitted that the applicants could have, but failed to, complain about the first applicant’s handcuffing to the prosecuting authorities or courts. The Government therefore expressed the view that they could not be regarded as having exhausted the available domestic remedies before bringing this complaint to the Court, as required by Article 35 § 1 of the Convention.", "102. The second applicant disagreed.", "103. The Court notes that, as can be seen from the case-file materials, the second applicant did complain about her son’s handcuffing to the Chief of the Bakhchysaray Police Department and to the Bakhchysaray Prosecutor (see paragraph 49 above). The first applicant’s lawyer also raised this issue before the domestic authorities (see paragraph 51 above). These complaints, however, produced no effect.", "104. The Court therefore concludes that the applicants took sufficient steps at the domestic level to bring this complaint to the attention of the national authorities (see Sylenok and Tekhnoservis-Plus v. Ukraine, no. 20988/02, § 76, 9 December 2010). Moreover, it appears that the first applicant’s handcuffing in hospital constituted a practice officially condoned or tolerated by the guards’ supervisors (see, for a similar situation, Okhrimenko v. Ukraine, no. 53896/07, § 94, 15 October 2009, and, for an example to the contrary, Tsygoniy v. Ukraine, no. 19213/04, § 51, 24 November 2011).", "105. Accordingly, the Court also rejects this objection by the Government.", "4. Otherwise as to admissibility", "106. The Court considers that the above complaints (see paragraph 89 above) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. Scope of the issues for consideration", "107. The Court notes that in previous cases where a death occurred in detention and the deceased’s relatives complained about the lack or inadequacy of medical care prior to the death, relying on both Articles 2 and 3 of the Convention, it examined that complaint primarily from the standpoint of Article 2 (see Tarariyeva v. Russia, no. 4353/03, § 68, ECHR 2006 ‑ XV (extracts)), and Kats and Others v. Ukraine, no. 29971/04, § 131, 18 December 2008).", "108. In cases where the applicants referred to both the aforementioned provisions in respect of allegedly inadequate medical assistance available to them in detention, but where there was no death, the Court examined the complaint under Article 3 of the Convention (see, for example, A.B. v. Russia, no. 1439/06, § 114, 14 October 2010).", "109. The present case is, however, different from any of the situations described above. The Court notes that the first applicant died two weeks after his release from detention following specialised treatment in a civil hospital.", "110. The Court observes that the applicants’ complaints, which they raised with reference to both Articles 2 and 3 of the Convention, concern several specific issues, namely", "(a) whether adequate medical assistance was available to the first applicant during his detention in the ITT and the SIZO;", "(b) whether the Central Hospital’s doctors provided him with medical care which was prompt and which adequately addressed his deteriorating state of health;", "(c) whether the first applicant’s handcuffing in hospital amounted to inhuman or degrading treatment;", "(d) whether the authorities can be regarded as having discharged their obligation to protect the first applicant’s life; and", "(e) whether there was an effective domestic investigation into the circumstances of his death.", "111. In view of the complex issues to be considered, the Court finds that it must assess each one of them separately: the three first-mentioned ones – in the context of Article 3 of the Convention; and, given the alleged causal link and contributory nature to the first applicant’s death, also assess them jointly in considering the complaints under Article 2 of the Convention (see Bekirski v. Bulgaria, no. 71420/01, § 124, 2 September 2010).", "2. Medical care in the detention facilities", "(a) The parties’ submissions", "112. The first applicant complained that the administration of the ITT and the SIZO had failed to respond in a timely and adequate manner to the deterioration of his health in detention. He submitted that, starting from early March 2008 his health sharply deteriorated. Namely, he allegedly had constant fever of 39-40ºC and could not eat because of serious digestion disorders. Instead of ensuring that he received comprehensive medical examinations and treatment, the administration of the detention facilities had allegedly confined itself to calling an ambulance on several occasions.", "113. Referring to the special medical monitoring of persons with HIV infection, the second applicant submitted that the health-care establishments, law-enforcement authorities and the Department for Enforcement of Sentences must have been aware of the HIV-positive status of her son. Furthermore, she noted that he had informed the investigator of his health condition immediately after his placement in police custody on 20 November 2007.", "114. The second applicant emphasised that at the time of his placement in detention in November 2007 her son had been in good health. His HIV ‑ positive status had not in fact manifested itself then as having any further negative consequences for his health. Accordingly, the fact that the first applicant had not registered for medical monitoring at the Aids Centre could not be regarded as having absolved the authorities who were holding him in detention from their duty to provide him with medical treatment once it became necessary with the deterioration of his health in March 2008.", "115. The Government contested the above arguments. They noted that the first applicant had never himself sought medical monitoring or any assistance in respect of his HIV infection while at liberty. Moreover, during his detention he had concealed his HIV status from the authorities. The medical staff at the detention facilities could not therefore be reproached for not applying a coherent strategy to the first applicant’s treatment in respect of the HIV infection, as they did not know about it.", "(b) The Court’s assessment", "116. The Court notes the dispute between the parties as to when the administration of the detention facilities in which the first applicant was detained became aware of his HIV status. Consequently, the Court will begin its examination of the applicants’ complaint regarding the alleged lack of timely and adequate medical care available to the first applicant in those detention facilities by establishing this pertinent fact.", "(i) Establishment of facts", "117. In the absence of the applicants’ allegations or any other indication to the contrary, the Court considers it an established fact that the first applicant himself became aware of his HIV-positive status in February 2006 (see paragraphs 8, 21 and 59 above).", "118. It is also common ground between the parties that he had not sought any medical treatment in that regard before he was detained.", "119. As further agreed by both parties, the first applicant felt well at the time of his placement in detention on 20 November 2007.", "120. The question arises whether and when thereafter he informed the administration of the ITT and/or the SIZO of his HIV-positive status.", "121. According to the second applicant, her son immediately informed the investigator of his condition. The Court notes, however, that this statement is not supported by any evidence. To the contrary, it appears to be refuted by the first applicant’s own written statement of 20 June 2008, in which he admitted that he had concealed his HIV status from the authorities “for understandable reasons” (see paragraph 36 above).", "122. Neither does the Court see any indication in the case file that the authorities might have received this information from any other source like, for example, from the second applicant who had apparently herself remained unaware of her son’s condition until early June 2008 (see paragraph 21 above, and, for the case-law to compare, see Kats and Others v. Ukraine, cited above, §§ 33 and 106).", "123. Furthermore, the Court does not lose sight of the records of the first applicant’s medical examinations of 31 May and 3 June 2008, from which it can infer that the first applicant, surprisingly, remained silent about his HIV status even before the doctors who examined him.", "124. Lastly, given the confidentiality requirements inherent in the medical monitoring of persons with the HIV-positive status, the Court dismisses the second applicant’s argument that the authorities must have been aware her son was HIV-positive merely because the Aids Centre had earlier diagnosed him as such.", "125. In sum, the Court is inclined to agree with the Government’s account of the events, according to which the first applicant did not disclose his HIV status to the authorities. The Court therefore accepts that the authorities became aware of his HIV infection only on 5 June 2008, when he was diagnosed with that infection after an examination in the Central Hospital (see paragraph 22 above).", "(ii) Examination of the complaint", "126. The Court emphasises that Article 3 of the Convention imposes an obligation on the State to ensure, given the practical demands of imprisonment, that the health and well-being of a prisoner are adequately secured by, among other things, providing him with the required medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 ‑ XI).", "127. In order to establish whether an applicant received the requisite medical assistance while in detention, it is crucial to determine whether the State authorities provided him with the minimum scope of medical supervision for the timely diagnosis and treatment of his illness (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006, and Mechenkov v. Russia, no. 35421/05, § 102, 7 February 2008).", "128. In other words, the Court must determine whether during his detention an applicant needed regular medical care, whether he was deprived of it as he claimed, and if so whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (see Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004, and Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005).", "129. One of the important factors for such an assessment is a sharp deterioration in a person’s state of health in detention facilities, which inevitably casts doubts as regards the adequacy of medical care available therein (see Farbtuhs v. Latvia, cited above, § 57, and Khudobin v. Russia, no. 59696/00, § 84, ECHR 2006 ‑ XII (extracts)).", "130. In establishing the scope of the medical supervision required and provided in each particular case, the Court must have regard to the medical documents submitted by the parties (see Popov v. Russia, cited above, ibid.).", "131. The Court reiterates in this connection that distribution of the burden of proof is intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (for the principle-setting case-law see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII; and, for the application of this principle in the context of complaints on inadequacy of medical care in detention, see Štrucl and others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, § 65, 20 October 2011).", "132. The Court notes that information about conditions of detention, including the issue of medical care, falls within the knowledge of the domestic authorities. Accordingly, applicants might experience difficulties in procuring evidence to substantiate a complaint in that connection (see Vladimir Vasilyev v. Russia, no. 28370/05, § 66, 10 January 2012). What is expected from applicants in such cases is to submit at least a detailed account of the facts complained of (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). The burden of proof is then shifted to the Government to provide explanations and supporting documents.", "133. Thus, an ample medical file proving constant medical supervision and adequate medical care might refute an applicant’s view regarding the medical care at his disposal (see Pitalev v. Russia, no. 34393/03, § 55, 30 July 2009). Conversely, the Government’s failure to provide pertinent medical documents casts doubts as regards the availability of adequate medical supervision of and assistance to the applicant in detention (see, mutatis mutandis, Petukhov v. Ukraine, no. 43374/02, § 96, 21 October 2010).", "134. Turning to the present case, the Court notes that the applicants made quite specific submissions regarding the deterioration of the first applicant’s health from March 2008. They further alleged that the medical response on the part of the detention facilities had been limited to sporadic ambulance calls (see paragraphs 17 and 112 above).", "135. It is true that they did not submit any documentary evidence in support of those allegations. At the same time the Court does not lose sight of the second applicant’s efforts to collect such evidence. Thus, in the course of the domestic investigation into the death of her son she sought access to and examination of his complete medical file from the detention facilities. That request was never granted and this documentation was not made available to the second applicant or to the domestic prosecution authorities (see paragraphs 63 and 81 above).", "136. Accordingly, it was for the Government to submit the aforementioned medical file detailing the first applicant’s actual medical needs during his detention and the medical response to them.", "137. The Court notes, however, that not a single medical document was submitted to it by the Government regarding the first applicant’s detention between February and May 2008.", "138. In such circumstances the Court finds itself in a position to infer from the Government’s failure to submit copies of any relevant medical documents that the first applicant did not receive adequate medical assistance for his deteriorating health in the ITT and the SIZO, even assuming that he had concealed his HIV status from the authorities (see, mutatis mutandis, Mechenkov v. Russia, cited above, § 110).", "139. Accordingly, there has been a violation of Article 3 of the Convention in this regard.", "3. Medical assistance in the Central Hospital", "(a) The parties’ submissions", "140. The second applicant submitted that even after her son had been sent for examination to the Central Hospital (a civil health-care establishment), its doctors unjustifiably delayed his hospitalisation and specialised treatment, and this irreversibly undermined his prospects of recovery.", "141. The Government disagreed. Referring to the case of Okhrimenko v. Ukraine (cited above, § 71), they contended that the Court was not in a position to speculate on the adequacy of medical treatment provided by civil doctors.", "(b) The Court’s assessment", "142. The Court notes that the hospital in question was a public institution, the acts and omissions of its medical staff being therefore capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II).", "143. This is, in any event, not crucial as at the time the first applicant remained in detention and thus under the full control of the authorities, which were obliged to account for his health and to provide him with adequate medical care.", "144. The Court agrees with the Government that it is not its task to assess the medical treatment provided by civil doctors.", "145. At the same time, it notes that the domestic authorities themselves acknowledged that the medical assistance provided to the first applicant by the Central Hospital’s doctors in June 2008 could not be regarded as timely and adequate. Specifically, the Crimea Bureau for Forensic Medical Examinations stated in its report of 26 November 2010 that at least on two occasions, on 5 and 18 June 2008, the Central Hospital’s doctors underestimated the seriousness of the first applicant’s condition and denied him the urgent hospitalisation which he required (see paragraphs 69, 70-72 and 74 above, and, for the case-law to compare, see Geppa v. Russia, no. 8532/06, § 82, 3 February 2011).", "146. The Court has no reasons to question those findings.", "147. It therefore concludes that there has been a violation of Article 3 of the Convention regarding this particular aspect as well.", "4. Handcuffing in hospital", "(a) The parties’ submissions", "148. The second applicant complained that her son had been handcuffed to his bed in the hospital round-the-clock without reason, which had exacerbated his suffering.", "149. The Government submitted, with reference to the letter from the Ministry of Health of 23 October 2009 (see paragraph 44 above), that the first applicant had only been handcuffed on the occasions he was escorted outside his hospital room and during any visits to him. They therefore considered that this security measure had been applied reasonably.", "(b) The Court’s assessment", "150. The Court notes that the second applicant’s allegation about the handcuffing of her son during his treatment in the Central Hospital from 20 to 26 June 2008 is supported by the photos submitted by her (see paragraph 35 above).", "151. As to his stay in Hospital no. 7 from 26 June to 18 July 2008, it appears from the letter of the Ministry of Health of 23 October 2009, cited by the Government, that according to the hospital management the first applicant was handcuffed during that period too. This implies, in the Court’s opinion, handcuffing for most of the time, if not all the time, rather than on an occasional basis, as the Government interpreted it to mean.", "152. The Court further observes that although the Chief of the Bakhchysaray Police – to whom the second applicant complained about her son’s handcuffing – dismissed her complaint on 15 July 2008, referring to the first applicant’s imminent release, he did not deny in principle that handcuffing had been applied (see paragraph 50 above).", "153. In sum, the Court considers it to be sufficiently established by the evidence at hand that the first applicant was subjected to continuous handcuffing in hospital from 20 June to 18 July 2008.", "154. It notes that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports 1997 ‑ VIII, and Henaf v. France, no. 65436/01, §§ 50-53, ECHR 2003 ‑ XI).", "155. In the present case there is no indication that the first applicant ever behaved violently or attempted to escape. Furthermore, it is not disputed by the parties that he was constantly guarded by police officers while in hospital. Moreover, he suffered from severe immunosuppression caused by his HIV status, as well as a number of concurrent illnesses (see paragraph 43 above). No special medical qualifications were required in order to understand how weak and ill he was. Thus, the prosecutor pursuing criminal charges against the first applicant acknowledged on 24 June 2008 that he was in a “critical health condition” (see paragraph 39 above). Nonetheless, the police still considered it necessary to keep him handcuffed in hospital. The handcuffing continued even after the Chief Doctor of Hospital no. 7 indicated to the Bakhchysaray Police Department on 2 July 2008 that the first applicant was seriously ill and that he needed to be unrestricted in his movements. In total, the first applicant remained handcuffed in hospital for twenty-eight days.", "156. The Court considers that this treatment could not be justified by security reasons and, given the first applicant’s poor state of health, is to be considered inhuman and degrading (see Tarariyeva v. Russia, cited above, §§ 110 and 111).", "157. There has therefore been a violation of Article 3 of the Convention in this regard too.", "5. The State’s obligation to protect the first applicant’s life", "(a) The second applicant’s submissions", "158. The second applicant maintained that her son could have recovered and remained alive had the authorities provided him with proper medical treatment in good time. She noted that, while HIV/Aids remained incurable, there were ways to enhance the life of people with the disease. According to her, her son was deprived of any such possibility owing to the fact that he was detained and was therefore fully dependant on the authorities, which, in her view, showed complete disregard for his life.", "159. In addition to her arguments regarding the lack of timely and adequate medical assistance available to the first applicant in detention, the second applicant also referred to his continued detention after the pronouncement of the judgment in his case on 4 July 2008, even though a custodial sentence had not been imposed. She considered that by that measure alone the authorities had put her son in a life-threatening situation.", "160. The second applicant underlined that she was not complaining about the unlawfulness of her son’s detention from the standpoint of Article 5 of the Convention, but that she was referring to it as an argument in support of her claim that the authorities had failed to protect her son’s life.", "161. She further noted that the first applicant’s behaviour before his placement in detention in December 2007 was of no relevance for the fatal outcome of his disease in August 2008, as he had felt well while he had remained at liberty and had not required any particular medical treatment at that stage. It was in detention that his health sharply deteriorated, but remained untreated, which led to his death.", "(b) The Government’s submissions", "162. The Government denied any responsibility on the part of the respondent State for the first applicant’s death. They imputed it to his own behaviour. Firstly, the Government observed that the first applicant had not himself sought any medical assistance for about two years prior to his placement in detention. Secondly, they emphasised that he had concealed his HIV-positive status from the authorities during his detention.", "163. Reiterating the findings of the Ministry of Health’s commission of 20 March 2009, the Government explained the deterioration of the first applicant’s health and the ensuing complications by his delayed application for medical care after having tested HIV-positive, as well as by the severity of the main disease (see paragraph 59 above).", "(c) The Court’s assessment", "164. The Court emphasises that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324).", "165. For a positive obligation of a State under Article 2 of the Convention to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998 ‑ VIII).", "166. Turning to the circumstances of the present case, the Court notes that the first applicant died two weeks after his release from detention and a day after his voluntary discharge from a civil hospital following about a month and a half of specialised in-patient treatment (see paragraphs 42, 52 and 55 above). The Court also notes that his death was caused by the HIV infection contracted at least two years prior to his placement in detention, if not earlier, and that he did not disclose his HIV status to the authorities (see paragraphs 7 and 125 above).", "167. It is not the Court’s task to rule on matters lying exclusively within the field of expertise of medical specialists and establish whether the first applicant’s disease was treatable and whether, accordingly, his death could have been averted (see, mutatis mutandis, Kozhokar v. Russia, cited above, § 108). Instead, in order to determine whether Article 2 of the Convention has been complied with, the Court will focus on determining whether the domestic authorities did everything which could reasonably have been expected of them under the circumstances to protect the first applicant’s life.", "168. Given that the first applicant did not disclose his HIV-positive status, the Court considers that the authorities became aware of it once that diagnosis was clinically established – that is, on 5 June 2008 (see paragraph 125 above).", "169. As to the earlier deterioration of his health in the detention facilities and the lack of prompt and adequate medical care available to him there, in respect of which the Court has found a violation of Article 3 of the Convention (see paragraphs 126-139 above), the Court considers that it is not in a position to examine these issues from the standpoint of Article 2 also, for the following reasons. Firstly, it does not appear that at that stage the health of the first applicant had deteriorated to such an extent that it could be considered life-threatening, and, secondly, the administration of the detention facilities were not aware of his HIV status and the inherent risks.", "170. At the same time, the Court notes that on 5 June 2008 the Central Hospital’s doctors diagnosed the first applicant with HIV infection at the fourth clinical stage, with several concomitant diseases, such as pneumocystis pneumonia, oropharynx-esophagus candidiosis and an ulcer (see paragraph 22 above). As was later established by forensic medical experts, the diagnosis of neumocystis pneumonia alone warranted the first applicant’s urgent hospitalisation (see paragraph 72 above).", "171. There were therefore, from 5 June 2008 onwards, two key factors in place for the State’s positive obligation under Article 2 of the Convention to come into play: firstly, the seriousness of the first applicant’s health condition and, secondly, the knowledge of the authorities about it.", "172. Nonetheless, the seriousness of his condition was underestimated and, as a result, his hospitalisation – already urgently required on 5 June 2008 if not earlier – was delayed until 20 June 2008 (see paragraphs 145 ‑ 146 above).", "173. The Court has already found a violation of Article 3 of the Convention in that regard (see paragraph 147 above). It further notes that, according to its case-law, a failure on the part of the authorities to monitor a detainee’s condition or provide a detainee with medical care in a life ‑ threatening situation may lead to a breach of Article 2 (see Douglas ‑ Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002, and, as a more recent reference, Alimuçaj v. Albania, no. 20134/05, § 130, 7 February 2012).", "174. Accordingly, it will take the aforementioned omissions into account in making its conclusions under Article 2 of the Convention too.", "175. The Court next notes that the Bakhchysaray Court in charge of the first applicant’s trial turned a blind eye to the extreme gravity of his condition even though this had been acknowledged even by the prosecution. Thus, on 24 June 2008 the prosecutor informed the court that there were no objections to the first applicant’s release and indicated that it was necessary to deal with his request for release promptly on account of his “critical condition”. However, the first applicant continued to be deprived of his liberty, while in Hospital no. 7, even after the pronouncement of the judgment of 4 July 2008, which imposed a fine only and not a custodial sentence. He was released only on 18 July 2008 (see paragraphs 47 and 52 above).", "176. There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his continued detention: (a) the medical condition of the detainee, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002 ‑ IX; Melnik v. Ukraine, cited above, § 94; and Rivière v. France, no. 33834/03, § 63, 11 July 2006).", "177. The Court notes that the first applicant’s health was found to be more and more a cause for concern and to be increasingly incompatible with detention (see and compare Dzieciak v. Poland, no. 77766/01, §§ 100-101, 9 December 2008, in which the Court examined, in particular, the issue of the applicant’s continuous detention from the standpoint of the State’s obligation to protect his life). Furthermore, the first applicant posed no danger to the public and his detention appears to have been not only “inadvisable”, but particularly cruel in the circumstances (see, for a converse example, Ceku v. Germany (dec.), no. 41559/06, 13 March 2007).", "178. The Court does not lose sight of the fact that at the time in question the first applicant was being held not in a detention facility cell but in a civil hospital where he was undergoing specialised in-patient treatment.", "179. On the surface, that might appear to counterbalance the above considerations against his detention. However, the Court considers that this is not so given, in particular, the first applicant’s continuous handcuffing in hospital amounting in itself, under the circumstances, to his inhuman and degrading treatment (see paragraphs 150-157 above).", "180. All in all, even if some of the above-mentioned deficiencies would not alone have been sufficient for a finding of inadequate discharge by the State of its positive obligation to protect the first applicant’s health and life, the Court considers that their coexistence and cumulative effect are more than enough in this regard.", "181. Whether or not the authorities’ efforts could in principle have averted the fatal outcome in the present case is not decisive for this conclusion. What matters for the Court is whether they did everything reasonably possible in the circumstances, in good faith and in a timely manner, to try to save the first applicant’s life (see, mutatis mutandis, Makharadze and Sikharulidze v. Georgia, cited above, § 74).", "182. The Court considers that this is not the case given, in particular, the fact that the first applicant was denied urgent hospitalisation, which he required, for over two weeks; that he remained detained without any justification and while in a critical health condition; and that he was subjected, contrary to doctors’ recommendations, to continuous handcuffing which further exacerbated his health condition.", "183. It follows that there has been a violation of Article 2 of the Convention on account of the respondent State’s failure to protect the first applicant’s life.", "6. Domestic investigation regarding the first applicant’s medical treatment and death", "(a) The parties’ submissions", "184. The second applicant maintained that there had been no effective domestic investigation into the death of her son. She noted, in particular, that the investigating authorities had never studied the complete medical file of the first applicant from the detention facilities. Nor had they questioned all the medical personnel involved. She also pointed out that the decisions to terminate the investigation had been quashed as premature or superficial on several occasions. At the same time, the shortcomings indicated had never been rectified. She therefore contended that the authorities had sought ways to deny any responsibility for the death of her son instead of making genuine efforts to establish its reasons and punish those responsible.", "185. The Government maintained that the domestic investigation into the first applicant’s death had been adequate.", "(b) The Court’s assessment", "186. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 of the Convention entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004 ‑ XII).", "187. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. The competent authorities must act with exemplary diligence and promptness, and must initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, mutatis mutandis, Kats and Others v. Ukraine, cited above, § 116).", "188. In the present case, the second applicant claimed that the death of her son had resulted from the lack of prompt and adequate medical care provided to him by the ITT and the SIZO personnel, as well as by the doctors of the Central Hospital.", "189. The Court notes that the first applicant’s health seriously deteriorated in detention and that the applicants raised the complaints regarding the medical assistance provided to him, at least before the administration of the detention facilities and the management of the Central Hospital, prior to the first applicant’s death. Thereafter, those grievances were further brought to the attention of prosecuting authorities (see paragraphs 33, 45 and 56 above).", "190. The Court notes that the investigation was closed and reopened several times and has lasted for over three and a half years (calculated from August 2008 – see paragraphs 55-56). As a result, on 27 December 2010 criminal proceedings were instituted in respect of the Central Hospital’s doctors. There is no information in the case file as regards the progress of these criminal proceedings. As to the liability of the detention facilities’ staff, the investigation was re-opened on 13 March 2012 and is ongoing.", "191. The Court cannot overlook the failure of the investigating authorities to obtain the first applicant’s complete medical file from the detention facilities where he had been detained, even though the second applicant insisted on that pertinent measure and, moreover, the Crimea Court of Appeal also found that it was necessary in its ruling of 13 October 2009 (see paragraphs 63 and 66 above). This omission was also noted by the Bakhchysaray Court in its ruling of 13 March 2012. Furthermore, the Bakhchysaray Court pointed out that the SIZO personnel in charge of handling the first applicant’s health-related complaints had not even been identified (see paragraph 81 above). In the Court’s view, the failure to take such a basic investigative step, which would have been expected at the very outset of the investigation had it been genuinely aimed at establishing the truth, discloses its flagrant deficiency.", "192. It follows that the respondent State failed to account sufficiently for the deterioration of the first applicant’s health and his subsequent death.", "193. This is a serious omission as, apart from concern for respect of the rights inherent in Article 2 of the Convention in each individual case, important public interests are at stake. Notably, the knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions and medical staff concerned to remedy potential deficiencies and prevent similar errors (see Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006).", "194. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT", "195. The second applicant additionally complained that, as a result of the denial of prompt and adequate medical care to her son, his subsequent death and the flawed domestic investigation into it, she had endured mental suffering in breach of Article 3 of the Convention. The text of this provision is provided in paragraph 90 above.", "A. Admissibility", "196. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Neither is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "197. The second applicant submitted that, during several months, she had witnessed her child dying in detention, at the age of twenty-seven, without adequate medical care and subjected to permanent handcuffing. She emphasised that, while being aware of the proximate end of his life, she had found herself in a state of complete helplessness and despair, being unable not only to save his life, but even to alleviate his suffering. The second applicant referred to the cynical and indifferent attitude of the domestic authorities, which had manifested itself, in particular, in the continuous detention of her son even after he had been sentenced to a fine only and after the prosecution had acknowledged his critical health condition and had consented to his release. They had showed similar indifference, in her view, by their formalistic approach to the investigation into the circumstances of her son’s death.", "198. Maintaining their assertion as to the absence of any breach of Article 3 of the Convention in respect of the first applicant, the Government considered that the second applicant’s complaint under this provision about her own mental suffering was devoid of any grounds.", "2. The Court’s assessment", "199. The Court has never questioned in its case-law the profound psychological impact of a serious human rights’ violation on the victim’s family members. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim’s relatives, there should be special factors in place giving their suffering a dimension and character distinct from emotional distress inevitably stemming from the aforementioned violation itself. Relevant elements include the proximity of the family tie and the way the authorities responded to the relative’s enquiries (see, for example, Çakıcı v. Turkey, no. 23657/94, § 98, 8 July 1999, where this principle was applied in the context of enforced disappearance; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 61, 12 October 2006, where the Court further relied on this principle in consideration of a mother’s complaint about her suffering on account of her five-year old daughter’s detention in another country; and M.P. and Others v. Bulgaria, no. 22457/08, §§ 122-124, 15 November 2011, where the respective complaint concerned suffering of the relatives of an abused child).", "200. In the cited cases the Court attached weight to the parent-child bond. It also held that the essence of such a violation lay in the authorities’ reactions and attitudes to the situation when it was brought to their attention. The Court further emphasised that it was especially in respect of this latter factor that a parent could claim directly to be a victim of the authorities’ conduct (ibid.).", "201. Another factor leading the Court to find a violation of Article 3 of the Convention, in particular, in respect of relatives of a victim of an enforced disappearance, was the continuous nature of their psychological suffering (see, for example, Imakayeva v. Russia, no. 7615/02, § 166, ECHR 2006‑XIII (extracts); and Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)).", "202. In sum, in such circumstances, Article 3 enjoins the authorities to react to the plight of the victim’s relatives in an appropriate and humane way. On the other hand, in cases of persons who have been killed by the authorities in violation of Article 2, the Court has held that the application of Article 3 is usually not extended to the relatives on account of the instantaneous nature of the incident causing the death in question (see Yasin Ateş v. Turkey, no. 30949/96, § 135, 31 May 2005; Udayeva and Yusupova v. Russia, no. 36542/05, § 82, 21 December 2010; Khashuyeva v. Russia, no. 25553/07, § 154, 19 July 2011; and Inderbiyeva v. Russia, no. 56765/08, § 110, 27 March 2012).", "203. Turning to the present case, the Court notes that, as soon as the second applicant became aware of the disease of her son, who was in detention, she took every effort to save his life, appealing to the hospitals, prosecution authorities and courts involved. Nonetheless, the first applicant continued to be detained even after the prosecution had agreed to his release given the gravity of his health condition (see paragraphs 39-40 above). Neither was he released after the verdict had been pronounced in his case with the penalty being limited to a fine and not providing for any custodial sentence (see paragraph 47 above). His mother, the second applicant, could only passively witness this in a state of complete helplessness. Furthermore, her complaints about the underestimation of the seriousness of her son’s condition were disregarded, even though later they were found to be well-grounded (see paragraphs 33, 69 and 74 above). The Court does not lose sight either of the second applicant’s fruitless efforts to get the handcuffing of her son’s lifted during his stay in hospital (see paragraphs 49-50 above). Lastly, the Court observes that even after the death of the first applicant, the authorities manifested an equally unacceptable attitude towards the second applicant, in particular, by ignoring her requests to get access to her son’s medical file (see paragraphs 63, 66 and 191 above).", "204. Overall, the Court discerns a number of factors in the present case which, taken together, indicate a breach of the second applicant’s rights under Article 3 of the Convention. Namely, it notes: the parent-child bond between her and the first applicant; the activeness of her efforts to save his life or at least to alleviate his suffering; the cynical, indifferent and cruel attitude towards her appeals demonstrated by the authorities both before the first applicant’s death and during its subsequent investigation; the fact that the second applicant had to witness the slow death of her son without being able to help him in any way; and, lastly, the duration of her inherent suffering for about three months.", "205. In the light of the foregoing, the Court considers that the second applicant has been a victim of inhuman treatment.", "206. There has therefore been a violation of Article 3 of the Convention in respect of the second applicant.", "III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION", "207. The applicants complained that the delayed hospitalisation of the first applicant, notwithstanding the interim measure indicated to the Government under Rule 39 of the Rules of Court, had been in breach of Article 34 of the Convention.", "208. Article 34 of the Convention reads as follows:", "“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”", "209. Rule 39 of the Rules of Court provides:", "“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.", "2. Notice of these measures shall be given to the Committee of Ministers.", "3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”", "A. The parties’ submissions", "210. The second applicant maintained that the authorities had failed to comply with the interim measure.", "211. The Government disagreed.", "B. The Court’s assessment", "1. General principles", "212. Article 34 of the Convention requires Member States not to hinder in any way the effective exercise of an applicant’s right of access to the Court (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 100, ECHR 2005 ‑ I).", "213. The obligation in Article 34 not to interfere with an individual’s effective exercise of the right to submit and pursue a complaint before the Court confers upon an applicant a right of a procedural nature – which can be asserted in Convention proceedings – distinguishable from the substantive rights set out under Section I of the Convention or its Protocols (see, for instance, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 470, ECHR 2005 ‑ III).", "214. In Mamatkulov and Askarov (cited above, §§ 104, 125 and 128), the Court held that the failure to comply with an interim measure indicated under Rule 39 of the Rules of Court could give rise to a violation of Article 34 of the Convention.", "215. In Paladi v. Moldova ([GC], no. 39806/05, 10 March 2009) the Court stated:", "“87. The Court reiterates that the obligation laid down in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure [...]. It is clear from the purpose of this rule, which is to ensure the effectiveness of the right of individual petition [...], that the intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with ... What matters is whether the situation created as a result of the authorities’ act or omission conforms to Article 34.", "88. The same holds true as regards compliance with interim measures as provided for by Rule 39, since such measures are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition ... It follows that Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the measure indicated by the Court.", "89. Furthermore, the Court would stress that where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision. It follows from the very nature of interim measures that a decision on whether they should be indicated in a given case will often have to be made within a very short lapse of time, with a view to preventing imminent potential harm from being done. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. It is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification.", "For the same reasons, the fact that the damage which an interim measure was designed to prevent subsequently turns out not to have occurred despite a State’s failure to act in full compliance with the interim measure is equally irrelevant for the assessment of whether this State has fulfilled its obligations under Article 34.", "90. Consequently, it is not open to a Contracting State to substitute its own judgment for that of the Court in verifying whether or not there existed a real risk of immediate and irreparable damage to an applicant at the time when the interim measure was indicated. Neither is it for the domestic authorities to decide on the time-limits for complying with an interim measure or on the extent to which it should be complied with. It is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of materials capable of convincing the Court to annul the interim measure should inform the Court accordingly (see, mutatis mutandis, Olaechea Cahuas v. Spain, no. 24668/03, § 70, ECHR 2006-X; Tanrıkulu v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV; and Orhan v. Turkey, no. 25656/94, § 409, 18 June 2002).", "91. The point of departure for verifying whether the respondent State has complied with the measure is the formulation of the interim measure itself (see, mutatis mutandis, the International Court of Justice’s analysis of the formulation of its interim measure and actual compliance with it in LaGrand, ...). The Court will therefore examine whether the respondent State complied with the letter and the spirit of the interim measure indicated to it.", "92. In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will therefore not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation.”", "2. Application of the above principles to the present case", "216. The Court notes that the respondent Government were officially informed of the interim measure under Rule 39 on 17 June 2008 (Tuesday, a working day) by a fax message (see paragraph 29 above).", "217. The contents of the interim measure included an instruction to the domestic authorities to transfer the first applicant immediately to a hospital for medical treatment. Despite becoming aware of the interim measure at the latest on the evening of 17 June 2008, it was only on 20 June 2008 that the domestic authorities transferred the first applicant to a hospital.", "218. It follows that the interim measure was not complied with for a period of three days.", "219. The Court notes that the Government considered this delay reasonable, without referring to any impediments which had prevented their earlier compliance with it.", "220. The Court however does not share this view. It explicitly and clearly indicated that the first applicant’s hospitalisation had to be immediate (see paragraph 29 above). It observes that an identically worded interim measure, which it had indicated in the case of Yakovenko v. Ukraine (no. 15825/06, 25 October 2007), had been implemented on the same day (§§ 3 and 22).", "221. There appear no objective impediments or difficulties, which might have prevented equally expedient compliance in the present case.", "222. The Court emphasises that it did not indicate the necessity of the first applicant’s medical examination, but his “[immediate transfer] to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition”. The authorities, however, waited for one day and decided, on 18 June 2008, that no urgent hospitalisation was required. In other words, instead of complying with the indicated interim measure, they decided to re-evaluate its soundness. And, as it was later acknowledged by the domestic authorities themselves, this re-evaluation was erroneous (see paragraphs 74 and 145 above).", "223. Accordingly, there was no acceptable explanation for the domestic authorities’ failure to take immediate action to comply with the interim measure (see, and compare with, Grori v. Albania, no. 25336/04, §§ 185 ‑ 195, 7 July 2009). Whether or not the three-day delay in fact caused the damage which the interim measure was designed to prevent, is irrelevant for the Court’s assessment (see Paladi v. Moldova, cited above, § 89).", "224. The Court concludes the State failed to meet its obligations under Article 34 of the Convention by not complying promptly with the interim measure indicated by the Court on 17 June 2008.", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "225. The second applicant also complained under Article 6 of the Convention about the alleged unfairness of the first applicant’s trial.", "226. The Court notes that the second applicant was not a party to the domestic proceedings complained of. Consequently, she cannot claim to be a victim, within the meaning of the Convention, of a violation of her rights guaranteed therein. The Court therefore rejects this complaint as being incompatible ratione personae with the Convention provisions, pursuant Article 35 §§ 3 (a) and 4 of the Convention.", "227. Lastly, the second applicant complained about the material conditions of her son’s detention in the ITT and the SIZO. She raised this complaint for the first time in her reply to the Government’s observations.", "228. The Court notes that the first applicant’s detention in the conditions complained of ended on 20 June 2008 (see paragraphs 14 and 34 above), whereas the respective complaint was lodged with the Court after September 2009 (see paragraph 4 above), that is, more than six months later (see Novinskiy v. Russia (dec.), no. 11982/02, 6 December 2007, and Malenko v. Ukraine, no. 18660/03, § 40, 19 February 2009). It follows that this complaint was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "229. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "230. The second applicant claimed 50,000 euros (EUR) for non-pecuniary damage associated with the violations of Articles 2 and 3 of the Convention in respect of the first applicant. She also claimed EUR 10,000 for non-pecuniary damage for the violation of Article 3 of the Convention in respect of herself.", "231. The Government contested these claims as unsubstantiated and excessive. They also submitted that, if the Court decided to award a just satisfaction in respect of some violations regarding the first applicant, the second applicant should not automatically receive that award. According to the Government, it ought to be distributed among all the eligible heirs of the first applicant.", "232. Taking into account the nature of the violations found and ruling on an equitable basis, the Court considers it appropriate to allow this claim in full. It thus makes the following awards under this heading: EUR 50,000 in respect of the non-pecuniary damage suffered by the first applicant, to be paid to the second applicant in her capacity as his successor in the proceedings before the Court after his death; and EUR 10,000 in respect of the non-pecuniary damage suffered by the second applicant herself, to be paid to her in her personal capacity.", "B. Costs and expenses", "1. Legal fees", "233. The second applicant also claimed 10,000 Ukrainian hryvnias (UAH) for legal fees (equal to EUR 900 at the time when her claim was lodged). In support of this claim, she submitted a contract of legal services rendered in the proceedings before the Court dated 5 June 2008, according to which she was to pay the lawyer, Mr Lesovoy, UAH 10,000. That contract contained a handwritten receipt note by Mr Lesovoy according to which he had received the stipulated amount from the second applicant.", "234. The Government considered that the second applicant had failed to demonstrate that the costs claimed were reasonable and had actually been incurred.", "235. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999 ‑ V).", "236. It notes that in the present case the second applicant was bound by and complied with her contractual obligations vis-à-vis Mr Lesovoy, who represented her son and herself in the proceedings before the Court.", "237. The Court therefore considers that the aforementioned requirements have been met in this case and awards this claim in full.", "2. Postal expenses", "238. The second applicant also claimed UAH 262.69 (an equivalent of about EUR 25) for postal expenses. In support of her claim she submitted eight postal receipts in respect of her correspondence with the Court.", "239. The Government submitted that the second applicant had failed to support her claim with documents.", "240. Regard being had to the documents in its possession, the Court considers it reasonable to grant this claim in full and to award the second applicant EUR 25 under this heading.", "C. Default interest", "241. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first applicant was born in 1981 and died on 2 August 2008. The second applicant was born in 1955 and lives in the town of Zuya in Crimea.", "A. Background information", "7. On 30 September 2005 the first applicant tested HIV positive.", "8. On 2 February 2006 the Centre for the Prevention and Combating of Aids in Crimea (“the Aids Centre”) informed him of the test results and invited him to register for medical monitoring. The first applicant did not, however, follow the advice (see also paragraphs 21 and 59 below).", "B. Criminal proceedings against the first applicant and his medical treatment in detention", "9. On 20 November 2007 the first applicant was arrested by the police on suspicion of having robbed an acquaintance of a mobile phone. According to the second applicant, on the same day her son informed the investigator about his HIV status and expressed the fear that his health might deteriorate in detention. This information was allegedly ignored. According to the Government, the first applicant did not disclose his HIV status.", "10. The first applicant was placed in the Temporary Detention Facility of the Bakhchysaray Police Station (“the ITT”). The officer on duty examined him and reported that he had no visible injuries and had raised no complaints.", "11. On 23 November 2007 the Bakhchysaray District Court (“the Bakhchysaray Court”) remanded the first applicant in custody pending trial.", "12. On 30 November 2007 the first applicant was X-rayed in the local polyclinic; no lung pathology was revealed.", "13. On 2 December 2007 he was taken from the ITT to Simferopol Pre-Trial Detention Centre no. 15 (“the SIZO”), where he was examined by a therapist (general practitioner), a dermatologist, a dentist and a psychiatrist. All found him to be in good health. According to the medical records, the first applicant did not have any health-related complaints and did not report any illnesses. His height and weight were recorded as 180 cm and 78 kg respectively.", "14. The first applicant was detained in the SIZO from 2 to 28 December 2007, then subsequently from 10 January to 10 February 2008, and from 18 February to 2 June 2008. During the intervening periods, from 28 December 2007 to 10 January 2008, from 10 to 18 February, and from 2 to 20 June 2008, he was held in the ITT.", "15. According to the records of his medical examinations of 10 January and 10 and 18 February 2008, he appeared to be in good health and did not raise any health-related complaints.", "16. According to the SIZO medical register, on 28, 29 and 30 May 2008 the first applicant complained of nasal stuffiness, rhinitis, and a sore throat. The SIZO therapist diagnosed him with an “acute respiratory viral infection” and prescribed medication.", "17. As to the intervening period between the aforementioned records of 18 February and 28 May 2008, no documents are available in the case file. The applicants submitted, however, that in early March 2008 the first applicant’s health had sharply deteriorated. He allegedly had a constant fever of 39-40ºC and suffered from serious digestive disorders. According to the applicants, the administration of the detention facilities called for an ambulance in that regard on many occasions. The nature of the ambulance interventions remained unclear.", "18. On 31 May 2008 the first applicant was additionally examined by an infectious disease specialist at the SIZO, who issued a note stating the following. The first applicant had been complaining of experiencing fevers and losing weight for the preceding two months. The doctor recommended an HIV test, to which the first applicant agreed. The test was scheduled for 2 June 2008. However, it did not take place because of the first applicant’s transfer from the SIZO to the ITT (see paragraph 14 above).", "19. On 2 June 2008, following another transfer from the SIZO to the ITT, the first applicant complained to the ITT medical attendant about feeling weak and having fever and back pain. The medical attendant administered some antipyretics to him.", "20. On 3 June 2008 the first applicant was taken to the Central Hospital, where he was examined by a therapist and underwent ultrasound scans of his liver, gallbladder, pancreas, spleen and kidneys. The following tests were also carried out: chest X-ray, electrocardiogram, esophagogastroduodenoscopy, as well as general blood and urine analyses. The therapist diagnosed the applicant with an ulcer, gastrointestinal hemorrhage, haemorrhoids, chronic bronchitis, and suspected HIV infection.", "21. On 4 June 2008 the Chief Doctor of the Aids Centre informed the second applicant, in reply to her enquiry of 3 June 2008, that her son had tested HIV positive on 30 September 2005, and had been informed of the result on 2 February 2006, but that he was not registered for monitoring in that Centre.", "22. On 5 June 2008 the first applicant was again taken to the Central Hospital, this time for examination by an infectious disease specialist. According to a note issued by the doctor, the first applicant complained to him about suffering from stomach aches, mouth lesions, a skin rash, coughing, and shortness of breath. He also complained of having lost about 10 kg during the preceding three months. Having examined the first applicant, the doctor diagnosed him with pneumocystis pneumonia, oropharynx-esophagus candidiosis (thrush) and an ulcer. Moreover, he concluded that the symptoms disclosed HIV infection at the fourth clinical stage. While the doctor assessed the first applicant’s condition as being “moderately severe” and noted that he required medical treatment for the aforementioned conditions, a general conclusion was reached that there was no urgent need for hospitalisation.", "23. The first applicant’s mother was informed of the diagnoses. She bought the prescribed medications, and the ITT medical attendant administered them to her son.", "24. On 6 June 2008 the first applicant’s lawyer requested the Bakhchysaray Court to release his client on account of his critical state of health. He noted that the first applicant required urgent specialised medical treatment because he had HIV infection at the fourth clinical stage and concomitant oesophagal candidosis and pneumocystis pneumonia. The lawyer stated that the first applicant’s life hung in the balance and that in order to save it he needed to be at liberty so as be able to seek proper medical care. Moreover, the lawyer pointed out, his client had a permanent place of residence and he had neither absconded from the investigation nor hindered it in any way. Furthermore, given his desperate health condition he did not present any danger to society.", "25. The Bakhchysaray Court rejected the above-mentioned request (this ruling is not available in the case file before the Court).", "26. On 11 June 2008 the Bakhchysaray District Prosecutor’s Office instructed the local police department to take the first applicant to the Central Hospital for another examination with a view to clarifying whether his state of health was compatible with detention.", "27. On 13 June 2008 the first applicant was taken to the Central Hospital, where he was again examined by an infectious disease specialist. The doctor reached a preliminary conclusion that the first applicant was suffering from HIV infection at the second clinical stage, which did not necessitate urgent hospitalisation. A further examination in the Aids Centre was recommended with a view to deciding on the necessary medical treatment. The doctor also made arrangements for the first applicant to have laboratory tests, such as blood and urine analyses and a sugar test, and a chest X-ray.", "28. On 16 June 2008 the applicants requested the Court to indicate to the Ukrainian Government, under Rule 39 of the Rules of Court, that the first applicant should be hospitalised and treated as a matter of urgency given the serious deterioration of his health and the alleged lack of adequate medical treatment.", "29. On 17 June 2008 the President of the Fifth Section decided to grant that request and to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the first applicant “should be transferred immediately to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition until further notice.” On the same day (Tuesday, a working day) a fax message was sent to the Government informing them of this decision.", "30. On 18 June 2008 the first applicant’s lawyer once again requested the Bakhchysaray Court to release his client. He reiterated that the first applicant’s life was in danger. The lawyer also referred to the aforementioned decision of the Court regarding the application of Rule 39 of the Rules of Court in the first applicant’s case.", "31. On the same date, 18 June 2008, following another enquiry by the Bakhchysaray police about the need for the first applicant’s hospitalisation, the Chief Doctor of the Infectious Diseases Department of the Central Hospital stated that the first applicant did not require urgent hospitalisation.", "32. As a result, the Bakhchysaray Court rejected the first applicant’s request for release submitted earlier that day.", "33. On 18 June 2008 the second applicant complained to the Chief Doctor of the Central Hospital about the alleged failure of its staff to provide her son with adequate medical assistance in spite of the applications she had made in that regard on 4 and 5 June, as well as twice on 13 June 2008. She insisted that his life was in danger. According to the second applicant, her son had never undergone a complete medical examination. She considered that the doctors were avoiding treating him because he was, firstly, HIV-positive and, secondly, a detainee.", "34. On 20 June 2008 the first applicant was taken to the Aids Centre, where the following diagnoses, classified as preliminary, were established: HIV infection at the fourth clinical stage, systemic candidosis of the oropharynx and oesophagus, continuous fever with expressed intoxication syndrome, a loss of body weight of more than 15%, and seborrheic dermatitis of the scalp. The doctors at the Aids Centre concluded that he required an additional examination with a view to clarifying the diagnoses, as well as in ‑ patient medical treatment.", "35. On the same day, he was transferred to the Central Hospital, where he was placed in a ward under police guard. According to the second applicant, her son was kept continuously handcuffed to his bed. She submitted to the Court his two photos taken on 25 June 2008. They showed the first applicant with his left hand handcuffed to the hospital bed. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which referred to the first applicant’s medical file in the Central Hospital, on 20 June 2008 he arrived there handcuffed. However, it was not recorded in the medical file whether he remained handcuffed throughout his treatment in that hospital.", "36. At some point on 20 June 2008 the first applicant wrote an “explanatory note” to the police, according to which he had informed neither the SIZO nor the ITT administration about his HIV infection “for understandable reasons”. After his mother had informed them that he might have that diagnosis, on 5 and 13 June 2008 he had undergone medical examinations in the Central Hospital resulting in the prescription of certain medication. The medical attendant had later administered that medication to him in the ITT. The first applicant stated that he had no complaints about the ITT staff. According to the second applicant, however, her son had written the aforementioned note under duress.", "37. On 24 June 2008 the first applicant wrote another note in which he stated that he had started to feel unwell during his detention (the date is illegible on the available copy). He noted that he had sought examination by a therapist on account of his continuous fever, as well as kidney, liver and intestinal pain. The medical attendant had been sent to him instead and had merely given him antipyretics. As he had not got any better, at some point between 22 and 25 May 2008 the medical attendant had begun administering injections of ceftriaxone (an antibiotic) to him. The fever and backache had, however, not ceased. As a result, on 29 May 2008 he had been placed in the SIZO hospital, without any changes to his treatment. Following his transfer to the ITT, on 4 June 2008 he had started to intake some other medicines which had been bought by his mother.", "38. On 24 June 2008 the first applicant’s lawyer again requested the release of his client, referring to the seriousness of his condition, as well as to the fact that the prosecutor did not object to his release.", "39. On the same date the Bakhchysaray Prosecutor requested the judge dealing with the first applicant’s criminal case to bring forward the hearing scheduled for 3 July 2008 given “the critical condition” of the first applicant and the need for him to undergo treatment in Simferopol Hospital no. 7, which specialised in the treatment of Aids (“Hospital no. 7”). The prosecutor noted the necessity to examine the aforementioned release request promptly.", "40. On an unspecified date (possibly 4 July 2008 – see paragraph 47 below) the Bakhchysaray Court rejected the aforementioned request for the first applicant’s release.", "41. On 26 June 2008 the Chief Doctor of the Central Hospital responded to the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance. He noted that the available medical records were insufficient for evaluating the development of his disease over time. The requests for medical assistance addressed to the Hospital had been of a contextual nature and assistance had been duly provided.", "42. On the same day the first applicant was transferred from the Central Hospital to Hospital no. 7.", "43. According to an extract from his medical record while in Hospital no. 7, his diagnoses included those established by the Aids Centre on 20 June 2008 (see paragraph 34 above), plus the following: pneumocystis pneumonia, second-degree anaemia, heavy immunosuppression (the CD4 count [1] being 48 cells/mm 3 ), and encephalitis of unclear origin. Furthermore, toxic hepatitis, hepatolienal syndrome, superficial gastritis, and duodenogastric reflux were indicated as concurrent illnesses.", "44. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which further referred to information from the management of Hospital no. 7, the first applicant had been handcuffed during his treatment in Hospital no. 7 from 26 June to 18 July 2008. At the same time, it was noted in the aforementioned letter that there was no information as to whether the handcuffing had been constant.", "45. On 2 July 2008 the ITT Governor examined the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance and delivered a decision refusing to launch a criminal investigation into the matter. He noted that the first applicant had hidden from the administration the fact that he was HIV-positive. In any event, he had received adequate medical care during his detention in the ITT.", "46. On the same day the Chief Doctor of Hospital no. 7 wrote to the Chief of the Bakhchysaray Police Department, stating that the first applicant required lengthy medical treatment, that he needed to be unrestricted in his movements, and that any interruption in his treatment would trigger a sharp deterioration in his health.", "47. On 4 July 2008 the Bakhchysaray Court found the first applicant guilty of fraud (instead of the robbery charge advanced by the prosecution – see paragraph 9 above) and sentenced him to a fine of 850 Ukrainian hryvnias (at the time equivalent of 115 euros). It was noted in the judgment that, until it became final the first applicant was to remain in detention.", "48. On 10 July 2008 antiretroviral therapy began to be administered to the first applicant in Hospital no. 7. According to the information provided by the Public Health Ministry in its letter to the Government Agent of 23 October 2009, the first applicant had refused – apparently on one occasion – to take the prescribed medication.", "49. On the same date, 10 July 2008, the second applicant requested the Chief of the Bakhchysaray Police Department to allow her to visit her son and to take care of him in the hospital given his critical condition. She also complained to the Bakhchysaray Prosecutor about the first applicant’s continuous handcuffing and sought its discontinuation.", "50. On 15 July 2008 the Chief of the Bakhchysaray Police replied to the second applicant that her son would in any case soon be released once the judgment of 4 July 2008 became final.", "51. On 18 July 2008 the first applicant’s lawyer also sought discontinuation of the handcuffing, noting that it was already clear that his client was about to die; nevertheless, he remained guarded by two police officers in a ward with barred windows, handcuffed to his bed. Such security measures were not only unjustified, but also inhuman. The lawyer further submitted that, as the second applicant had discovered, certain police officers guarding her son had mockingly offered him to install a cable in the ward and to handcuff him to that cable so that his movements would be “practically unrestrained”.", "C. The first applicant’s medical treatment after his release from detention and his death", "52. On 18 July 2008 the police lifted the security measures in respect of the first applicant (apparently on the ground that the judgment of 4 July had become final), and the second applicant took him home. She wrote a note to the administration of Hospital no. 7 stating that she was taking her son home “for family reasons”.", "53. On the following day, however, the first applicant was hospitalised again in Hospital no. 7 because of a deterioration in his health.", "54. On 1 August 2008 the second applicant took him home again, having written a note to the hospital administration similar to that of 18 July 2008.", "55. On 2 August 2008 the first applicant died.", "D. Investigation into the death of the first applicant", "56. Following the death of her son, the second applicant complained to the prosecution authorities about the alleged denial of timely and adequate medical care available for him in detention which, according to her, had led to his death.", "57. On 20 January 2009 the Bakhchysaray Prosecutor informed her that the ITT governor’s decision of 2 July 2008 (see paragraph 45 above) had been quashed and the investigation into the medical assistance provided to the first applicant had been resumed.", "58. On 17 February 2009 the Ministry of Public Health set up a commission for investigating the matter.", "59. On 20 March 2009 the commission issued an official investigation report which concluded that the Central Hospital’s doctors bore no responsibility for the first applicant’s death. It noted that although the Aids Centre had informed him about his HIV-positive status and had explained to him the necessity of medical monitoring as early as on 2 February 2006, the first applicant had not sought any medical examinations or monitoring. As a result, the antiretroviral therapy had not been started in good time, thus complicating the development of the disease. The commission gave its general findings as follows:", "“1. Medical care to persons in custody is the duty of the police medical staff.", "2. Specialists of the Central Hospital do not provide medical consultations or examinations to persons in custody without being called on to do so by the [detention facilities’] personnel.", "3. The [first applicant] benefited from examinations, specialist consultations, laboratory tests and treatment in Central Hospital fully and according to the approved standards.", "4. The deterioration of [his] health and the complications are attributable to the delay in his application for medical care after testing HIV-positive, as well as the severity of the main disease, which triggered irreversible processes in [his] organism.”", "60. On 23 March 2009 the second applicant again complained to the Bakhchysaray Prosecutor. She referred, in particular, to the allegedly unjustified conclusion of the infectious disease specialist of 13 June 2008, according to which her son had not required urgent hospitalisation at that time (see paragraph 27 above).", "61. On 31 March 2009 the Bakhchysaray Prosecutor refused to institute criminal proceedings against the police or the Central Hospital’s staff, finding the second applicant’s complaint to be unsubstantiated.", "62. On 3 April 2009 the Bakhchysaray Prosecutor quashed the decision of 31 March 2009 as further investigation was required, which was to include the following measures: questioning of the second applicant, the ITT staff, and the Central Hospital doctors concerned.", "63. On 4 May 2009 the second applicant was questioned by the prosecutor. She submitted that her son’s health had started to deteriorate drastically in March 2008 and that he had not received prompt and adequate medical treatment. According to her, the administration of the detention facilities had merely called for an ambulance on several occasions. She insisted on the seizure and examination of all the medical documentation regarding her son – from the ITT, the SIZO, the Central Hospital and Hospital no. 7 – with a view to an evaluation of his medical needs and the actual response to them from November 2007.", "64. On 25 May 2009 the Bakhchysaray Prosecutor refused to open criminal proceedings against the police or the Central Hospital’s staff, on account of lack of corpus delicti in their actions. He relied, in particular, on the conclusions of the Ministry of Public Health’s commission (see paragraph 59 above), as well as statements by police officers and doctors.", "65. On 18 August 2009 the Bakhchysaray Court upheld that decision. It noted that the first applicant had himself raised no complaints against the police or medical staff. Furthermore, it appeared that as soon as the authorities had become aware of his HIV status they had provided him with adequate medical treatment.", "66. On 13 October 2009 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the ruling of 18 August 2009 and allowed the second applicant’s appeal. It criticised the investigation, in particular, for its failure to give any consideration to the first applicant’s state of health and the medical assistance, if any, provided to him in detention from 20 November 2007 to early June 2008. Furthermore, the appellate court noted that the impugned ruling had been delivered by the first-instance court in the second applicant’s absence and without any proof that she had been duly notified of the hearing. It remitted the case to the Bakhchysaray Court.", "67. On 23 October 2009 the First Deputy Minister of Public Health sent a letter to the Government Agent, in reply to the latter’s enquiry following the communication of the application to the Government by the Court (see also paragraphs 35, 44 and 48 above). It contained the following conclusions:", "“1. The reasons for the deterioration of the [first applicant’s] health and the complications in the development of [his] disease were as follows: the delayed application of [the first applicant] to [the Aids Centre] for specific medical assistance (since 2005), the seriousness of the main disease (Aids), and the irregularities in his antiretroviral treatment (there were refusals [on his part] to take the medication).", "2. The death of the [first] applicant is not related to his medical treatment or the conditions in the medical facilities where he was held. It was caused by the gravity of the main disease, which triggered irreversible processes in [his] organism.”", "68. On 17 December 2009 the Bakhchysaray Court quashed the decision of 25 May 2009 (see paragraph 64 above) and remitted the case to the Bakhchysaray Prosecutor for additional investigation.", "69. On 19 August 2010 the Bakhchysaray Prosecutor ordered a forensic medical examination with a view to responding to the following questions:", "(1) Did the Central Hospital’s therapist establish correct diagnoses in respect of the first applicant on 3 June 2008 (for details see paragraph 20 above)?", "(2) Were the diagnoses established by the infectious disease specialist on 5 June 2008 (for details see paragraph 22 above), as well as his conclusion that the first applicant did not require urgent hospitalisation, correct?", "(3) Given the diagnoses established on 5 June 2008, did the first applicant indeed not require urgent hospitalisation and could be detained in the ITT or the SIZO?", "(4) Did the Central Hospital’s doctors prescribe correct medical treatment for the first applicant?", "(5) Did the Central Hospital’s doctors act correctly in ordering the laboratory tests for the first applicant (blood and urine analyses, a sugar test, and chest X-ray) only on 13 June, and not on 3 or 5 June 2008?", "(6) On 18 June 2008, following a repeated enquiry by the Bakhchysaray police as to the need for the first applicant to be hospitalised, the Chief Doctor of the Infectious Diseases Department of the Central Hospital issued a note stating that the first applicant did not require urgent hospitalisation. Did the doctor assess the seriousness of the first applicant’s condition correctly? Were her conclusions correct?", "(7) Was it lawful on the part of the medical staff of Hospital no. 7 to discharge the first applicant on 18 July 2008, given that his mother’s request for him to be discharged did not contain any indication that she had been warned about the possible negative consequences?", "(8) Were the actions of the medical staff in compliance with the legislation? Was there any causal link between the actions of the police and the medical staff and the death of the first applicant?", "70. On 26 November 2010 the Crimea Republic Bureau for Forensic Medical Examinations completed its expert report.", "71. Referring to the absence of medical documentation regarding the first applicant’s examination on 3 June 2008, it found it “extremely difficult” to answer question (1).", "72. As to questions (2) and (3), the experts concluded that the diagnoses established by the infectious disease specialist on 5 June 2008 had not been based on a thorough examination of the first applicant and had not reflected the seriousness of his condition, in particular, the fever and the haemodynamic parameters. The experts concluded that the doctor’s finding that the first applicant’s urgent hospitalisation was not required on 5 June 2008 did not correspond to the diagnoses established. They noted that he had been diagnosed, in particular, with pneumocystis pneumonia, which would alone have warranted his urgent hospitalisation for in-patient medical treatment. The doctor’s prescription of antibacterial and antifungal medication for the first applicant was found to be correct (this was apparently the reply to question (4), which was not specified).", "73. In reply to question (5), the experts found that the doctors’ decision of 13 June 2008 on the necessity of further laboratory examinations complied with the applicable medical standards. They noted that such laboratory tests had already been carried out on 4 June 2008 (from the documents in the case file it appears that the correct date was 3 June 2008 – see paragraph 20 above), but had needed to be further verified.", "74. The expert commission replied to question (6) that at the time of his examination on 18 June 2008 the first applicant had required urgent hospitalisation and in-patient medical treatment.", "75. As regards questions (7) and (8), the experts noted that they were not competent to make a legal assessment of the doctors’ actions. Given the absence of an autopsy report, the commission found it impossible to determine the cause of the death of the first applicant or to establish whether there was a causal link between the time of his hospitalisation for specialised treatment and his death.", "76. On 27 December 2010 the Bakhchysaray Prosecutor instituted a criminal investigation into the failure of the Central Hospital’s doctors to comply with their professional obligations. This decision was mainly based on the expert commission’s findings of 26 November 2010. It stated, in particular, as follows:", "“The prosecutor’s investigation has collected sufficient evidence of inadequate compliance by the medical officials with their professional duties due to negligence. The delayed hospitalisation and, accordingly, the delayed provision of medical assistance to [the first applicant] contributed considerably to the deterioration of his health, which amounted to a grave consequence for him.”", "There is no information in the case file on any further developments in this investigation or its outcome.", "77. On 29 April 2011 the Bakhchysaray Prosecutor delivered a decision refusing to institute criminal proceedings against the staff of the ITT or the SIZO in connection with the medical assistance provided to the first applicant. Referring to the medical records of 20 November and 2 December 2007, 10 January, 10 and 18 February and 28 May 2008, as well as later medical documentation, the prosecutor did not discern anything criminal in the actions of the administration of the detention facilities.", "78. On 9 August 2011 the Bakhchysaray Court upheld that decision having dismissed the second applicant’s complaint to that regard.", "79. On 22 September 2011 the Crimea Court of Appeal quashed the ruling of the first-instance court and remitted the case back to it for fresh examination.", "80. On 16 November 2011 the Bakhchysaray Court again rejected the second applicant’s complaint.", "81. On 13 March 2012 it however reconsidered its position, apparently after a repeated complaint from the second applicant. The Bakhchysaray Court quashed the prosecutor’s ruling of 29 April 2011 and remitted the case for additional investigation. It noted that the investigation undertaken only indirectly concerned the ITT personnel and did not concern at all the SIZO administration or medical staff. Moreover, the SIZO personnel whose duty was to respond to the first applicant’s complaints had not even been identified. The Bakhchysaray Court also observed the lack of information in the file as regards any record-keeping of the first applicant’s health-related complaints or showing the absence of such complaints during his detention.", "82. The Court has not been made aware of any further developments." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "83. The Rules on Medical and Sanitary Care in Detention Centres and Penitentiaries, approved by Decree no. 3/6 of 18 January 2000 of the State Department for the Enforcement of Sentences, stipulate that medical assistance to HIV-infected persons is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations stating that accessible, informative and supportive counselling should be available before and after HIV-testing (annex 28 to paragraph 4.3.4).", "84. The relevant provisions of Decree No 186/607 of 15 November 2005 of the Ministry of Health and the State Department for the Enforcement of Sentences on the Antiretroviral Treatment of Persons with HIV/Aids Detained in Prisons and Pre-Trial Detention Centres are summarised in the case of Yakovenko v. Ukraine (no. 15825/06, §§ 49-52, 25 October 2007).", "85. Article 18 of the Pre-trial Detention Act (1993) sets out rules governing the use of security measures, including the use of handcuffs. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs and truncheons, with a view to suppressing physical resistance, violence, outrage ( безчинства ) and opposition to the lawful directions of the authorities of the detention facility, when other means of achieving a legitimate objective have proved ineffective. The type of security measure and the time and manner of its use depend on the particular circumstances of the case and the personality of the detainee.", "86. Article 140 § 1 of the Criminal Code penalises medical negligence which has led to grave consequences for the patient by “debarring from the holding of certain offices or pursuing certain activities” for a term of up to five years, or by correctional work for up to two years, or by restriction or deprivation of liberty for the same term.", "III. RELEVANT INTERNATIONAL MATERIALS", "87. The relevant extracts from the third General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:", "“ a. Access to a doctor", "...", "35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...", "Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.", "36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...", "37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.”", "b. Equivalence of care", "38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.", "There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).", "39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.", "Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.", "40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”", "88. The guidelines of the World Health Organisation (“WHO”) on antiretroviral therapy for HIV infection in adults and adolescents can be found in the judgment in the case of Kozhokar v. Russia, no. 33099/08, §§ 77-79, 16 December 2010.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT", "89. Both the first applicant, while still alive, and the second applicant, in maintaining her son’s application and joining the case on her own behalf after his death, complained that the State had failed to protect his health, physical well-being and life, contrary to Articles 2 and 3 of the Convention. The second applicant further complained under Article 3 of the Convention about her son’s handcuffing in hospital. Lastly, she complained that the domestic investigation into his death had been ineffective.", "90. Articles 2 and 3 of the Convention, relied on by the applicants, read as follows in so far as relevant:", "Article 2.", "“1. Everyone’s right to life shall be protected by law.”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. Victim status", "91. The Court notes at the outset that the second applicant may claim to be a victim within the meaning of Article 34 of the Convention of the violations alleged by and on behalf of her late son under Articles 2 and 3 of the Convention (see Renolde v. France, no. 5608/05, § 69, 16 October 2008).", "2. Exhaustion of domestic remedies as regards the medical care provided to the first applicant and his death", "92. The Government argued that the above complaints were premature. They noted, in particular, that the criminal investigation (instituted on 27 December 2010) regarding the medical assistance provided to the first applicant by the Central Hospital’s doctors had not yet been completed. The Government further observed that – as of the date of their observations – the second applicant had not challenged the decision of the Bakhchysaray Prosecutor of 29 April 2011 refusing to institute criminal proceedings against the staff of the ITT and the SIZO in connection with the medical care provided to the first applicant during his detention in those facilities.", "93. The second applicant submitted that after the domestic authorities had dismissed her son’s numerous requests for release and for specialised medical treatment, which he had raised in an attempt to save his life, there remained no effective domestic remedies for her to exhaust after his death. She further expressed the view that, in any event, the domestic investigation into the circumstances of the first applicant’s death had been slow and ineffective. The second applicant therefore considered it pointless to await its completion.", "94. As regards the rule of exhaustion of domestic remedies, the Court emphasises that it must be applied with some degree of flexibility and without excessive formalism. The Court has already held on a number of occasions that this rule is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case (see Akdivar and Others v. Turkey [GC], 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV, and Aksoy v. Turkey, 18 December 1996, §§ 53-54, Reports 1996-VI). The Court looks, in particular, whether the applicant did everything that could reasonably be expected in order to exhaust available domestic remedies (see Merit v. Ukraine, no. 66561/01, § 58, 30 March 2004).", "95. The Court observes that the Government’s objection in the present case raises issues which are inextricably linked to the question of the effectiveness of the domestic investigation into the first applicant’s death. Given the second applicant’s complaint about the alleged ineffectiveness of the investigation in question, the Court would normally join this objection to the merits of the aforementioned complaint (see, for example, Matushevskyy and Matushevska v. Ukraine, no. 59461/08, § 66, 23 June 2011). However, the particular circumstances of this case call for a different approach.", "96. It is noteworthy that, in assessing the effectiveness of a domestic remedy for a complaint under Articles 2 and 3 of the Convention with regard to lack of sufficient care for an applicant suffering from an illness in detention, the Court considers that a decisive question is whether that remedy can bring direct and timely relief. Such a remedy can, in principle, be both preventive and compensatory in nature. Where the applicant has already resorted to either of the available and relevant remedies, considering it to be the most appropriate course of action in his or her particular situation, the applicant should not then be reproached for not having pursued an alternative remedial course of action (see, mutatis mutandis, Melnik v. Ukraine, no. 72286/01, §§ 68 and 70, 28 March 2006).", "97. The Court observes that the parties are in dispute as to when the authorities became aware of the first applicant’s HIV status. It will deal with this particular issue later, when assessing the merits of the case. In order to establish whether the rule of exhaustion of domestic remedies has been respected, it suffices for the Court to note the numerous requests for release on health grounds lodged by the first applicant in June 2008 with the court dealing with his criminal case. Those requests, in the Court’s view, clearly voiced the first applicant’s fears for his life (see and compare with Dybeku v. Albania, no. 41153/06, § 28, 18 December 2007, and Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 54, 22 November 2011).", "98. In other words, at the most pertinent time, when the first applicant was still alive and could personally care for his well-being, he did everything reasonable, at least from early June 2008 onwards, to alert the relevant authorities to his progressing HIV infection and the concomitant diseases, seeking preventive remedial action for the grievances set out in the present application. In such circumstances, it would be wholly inappropriate, from the point of Article 35 § 1 of the Convention, to reproach the second applicant for not having retrospectively pursued any compensatory remedy by seeking completion of the criminal investigation and getting redress for the State’s failure to protect her son’s health and life (see Makharadze and Sikharulidze v. Georgia, cited above, § 55).", "99. The Court therefore considers that the first applicant sufficiently pursued a preventive domestic remedy for the exhaustion requirement to be complied with.", "100. Accordingly, the Court dismisses this objection by the Government without joining it to the merits of the complaint about the effectiveness of the domestic investigation into the first applicant’s medical treatment and death.", "3. Exhaustion of domestic remedies as regards the first applicant’s handcuffing in hospital", "101. The Government submitted that the applicants could have, but failed to, complain about the first applicant’s handcuffing to the prosecuting authorities or courts. The Government therefore expressed the view that they could not be regarded as having exhausted the available domestic remedies before bringing this complaint to the Court, as required by Article 35 § 1 of the Convention.", "102. The second applicant disagreed.", "103. The Court notes that, as can be seen from the case-file materials, the second applicant did complain about her son’s handcuffing to the Chief of the Bakhchysaray Police Department and to the Bakhchysaray Prosecutor (see paragraph 49 above). The first applicant’s lawyer also raised this issue before the domestic authorities (see paragraph 51 above). These complaints, however, produced no effect.", "104. The Court therefore concludes that the applicants took sufficient steps at the domestic level to bring this complaint to the attention of the national authorities (see Sylenok and Tekhnoservis-Plus v. Ukraine, no. 20988/02, § 76, 9 December 2010). Moreover, it appears that the first applicant’s handcuffing in hospital constituted a practice officially condoned or tolerated by the guards’ supervisors (see, for a similar situation, Okhrimenko v. Ukraine, no. 53896/07, § 94, 15 October 2009, and, for an example to the contrary, Tsygoniy v. Ukraine, no. 19213/04, § 51, 24 November 2011).", "105. Accordingly, the Court also rejects this objection by the Government.", "4. Otherwise as to admissibility", "106. The Court considers that the above complaints (see paragraph 89 above) are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. Scope of the issues for consideration", "107. The Court notes that in previous cases where a death occurred in detention and the deceased’s relatives complained about the lack or inadequacy of medical care prior to the death, relying on both Articles 2 and 3 of the Convention, it examined that complaint primarily from the standpoint of Article 2 (see Tarariyeva v. Russia, no. 4353/03, § 68, ECHR 2006 ‑ XV (extracts)), and Kats and Others v. Ukraine, no. 29971/04, § 131, 18 December 2008).", "108. In cases where the applicants referred to both the aforementioned provisions in respect of allegedly inadequate medical assistance available to them in detention, but where there was no death, the Court examined the complaint under Article 3 of the Convention (see, for example, A.B. v. Russia, no. 1439/06, § 114, 14 October 2010).", "109. The present case is, however, different from any of the situations described above. The Court notes that the first applicant died two weeks after his release from detention following specialised treatment in a civil hospital.", "110. The Court observes that the applicants’ complaints, which they raised with reference to both Articles 2 and 3 of the Convention, concern several specific issues, namely", "(a) whether adequate medical assistance was available to the first applicant during his detention in the ITT and the SIZO;", "(b) whether the Central Hospital’s doctors provided him with medical care which was prompt and which adequately addressed his deteriorating state of health;", "(c) whether the first applicant’s handcuffing in hospital amounted to inhuman or degrading treatment;", "(d) whether the authorities can be regarded as having discharged their obligation to protect the first applicant’s life; and", "(e) whether there was an effective domestic investigation into the circumstances of his death.", "111. In view of the complex issues to be considered, the Court finds that it must assess each one of them separately: the three first-mentioned ones – in the context of Article 3 of the Convention; and, given the alleged causal link and contributory nature to the first applicant’s death, also assess them jointly in considering the complaints under Article 2 of the Convention (see Bekirski v. Bulgaria, no. 71420/01, § 124, 2 September 2010).", "2. Medical care in the detention facilities", "(a) The parties’ submissions", "112. The first applicant complained that the administration of the ITT and the SIZO had failed to respond in a timely and adequate manner to the deterioration of his health in detention. He submitted that, starting from early March 2008 his health sharply deteriorated. Namely, he allegedly had constant fever of 39-40ºC and could not eat because of serious digestion disorders. Instead of ensuring that he received comprehensive medical examinations and treatment, the administration of the detention facilities had allegedly confined itself to calling an ambulance on several occasions.", "113. Referring to the special medical monitoring of persons with HIV infection, the second applicant submitted that the health-care establishments, law-enforcement authorities and the Department for Enforcement of Sentences must have been aware of the HIV-positive status of her son. Furthermore, she noted that he had informed the investigator of his health condition immediately after his placement in police custody on 20 November 2007.", "114. The second applicant emphasised that at the time of his placement in detention in November 2007 her son had been in good health. His HIV ‑ positive status had not in fact manifested itself then as having any further negative consequences for his health. Accordingly, the fact that the first applicant had not registered for medical monitoring at the Aids Centre could not be regarded as having absolved the authorities who were holding him in detention from their duty to provide him with medical treatment once it became necessary with the deterioration of his health in March 2008.", "115. The Government contested the above arguments. They noted that the first applicant had never himself sought medical monitoring or any assistance in respect of his HIV infection while at liberty. Moreover, during his detention he had concealed his HIV status from the authorities. The medical staff at the detention facilities could not therefore be reproached for not applying a coherent strategy to the first applicant’s treatment in respect of the HIV infection, as they did not know about it.", "(b) The Court’s assessment", "116. The Court notes the dispute between the parties as to when the administration of the detention facilities in which the first applicant was detained became aware of his HIV status. Consequently, the Court will begin its examination of the applicants’ complaint regarding the alleged lack of timely and adequate medical care available to the first applicant in those detention facilities by establishing this pertinent fact.", "(i) Establishment of facts", "117. In the absence of the applicants’ allegations or any other indication to the contrary, the Court considers it an established fact that the first applicant himself became aware of his HIV-positive status in February 2006 (see paragraphs 8, 21 and 59 above).", "118. It is also common ground between the parties that he had not sought any medical treatment in that regard before he was detained.", "119. As further agreed by both parties, the first applicant felt well at the time of his placement in detention on 20 November 2007.", "120. The question arises whether and when thereafter he informed the administration of the ITT and/or the SIZO of his HIV-positive status.", "121. According to the second applicant, her son immediately informed the investigator of his condition. The Court notes, however, that this statement is not supported by any evidence. To the contrary, it appears to be refuted by the first applicant’s own written statement of 20 June 2008, in which he admitted that he had concealed his HIV status from the authorities “for understandable reasons” (see paragraph 36 above).", "122. Neither does the Court see any indication in the case file that the authorities might have received this information from any other source like, for example, from the second applicant who had apparently herself remained unaware of her son’s condition until early June 2008 (see paragraph 21 above, and, for the case-law to compare, see Kats and Others v. Ukraine, cited above, §§ 33 and 106).", "123. Furthermore, the Court does not lose sight of the records of the first applicant’s medical examinations of 31 May and 3 June 2008, from which it can infer that the first applicant, surprisingly, remained silent about his HIV status even before the doctors who examined him.", "124. Lastly, given the confidentiality requirements inherent in the medical monitoring of persons with the HIV-positive status, the Court dismisses the second applicant’s argument that the authorities must have been aware her son was HIV-positive merely because the Aids Centre had earlier diagnosed him as such.", "125. In sum, the Court is inclined to agree with the Government’s account of the events, according to which the first applicant did not disclose his HIV status to the authorities. The Court therefore accepts that the authorities became aware of his HIV infection only on 5 June 2008, when he was diagnosed with that infection after an examination in the Central Hospital (see paragraph 22 above).", "(ii) Examination of the complaint", "126. The Court emphasises that Article 3 of the Convention imposes an obligation on the State to ensure, given the practical demands of imprisonment, that the health and well-being of a prisoner are adequately secured by, among other things, providing him with the required medical assistance (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 ‑ XI).", "127. In order to establish whether an applicant received the requisite medical assistance while in detention, it is crucial to determine whether the State authorities provided him with the minimum scope of medical supervision for the timely diagnosis and treatment of his illness (see Popov v. Russia, no. 26853/04, § 211, 13 July 2006, and Mechenkov v. Russia, no. 35421/05, § 102, 7 February 2008).", "128. In other words, the Court must determine whether during his detention an applicant needed regular medical care, whether he was deprived of it as he claimed, and if so whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (see Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004, and Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005).", "129. One of the important factors for such an assessment is a sharp deterioration in a person’s state of health in detention facilities, which inevitably casts doubts as regards the adequacy of medical care available therein (see Farbtuhs v. Latvia, cited above, § 57, and Khudobin v. Russia, no. 59696/00, § 84, ECHR 2006 ‑ XII (extracts)).", "130. In establishing the scope of the medical supervision required and provided in each particular case, the Court must have regard to the medical documents submitted by the parties (see Popov v. Russia, cited above, ibid.).", "131. The Court reiterates in this connection that distribution of the burden of proof is intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (for the principle-setting case-law see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII; and, for the application of this principle in the context of complaints on inadequacy of medical care in detention, see Štrucl and others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, § 65, 20 October 2011).", "132. The Court notes that information about conditions of detention, including the issue of medical care, falls within the knowledge of the domestic authorities. Accordingly, applicants might experience difficulties in procuring evidence to substantiate a complaint in that connection (see Vladimir Vasilyev v. Russia, no. 28370/05, § 66, 10 January 2012). What is expected from applicants in such cases is to submit at least a detailed account of the facts complained of (see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). The burden of proof is then shifted to the Government to provide explanations and supporting documents.", "133. Thus, an ample medical file proving constant medical supervision and adequate medical care might refute an applicant’s view regarding the medical care at his disposal (see Pitalev v. Russia, no. 34393/03, § 55, 30 July 2009). Conversely, the Government’s failure to provide pertinent medical documents casts doubts as regards the availability of adequate medical supervision of and assistance to the applicant in detention (see, mutatis mutandis, Petukhov v. Ukraine, no. 43374/02, § 96, 21 October 2010).", "134. Turning to the present case, the Court notes that the applicants made quite specific submissions regarding the deterioration of the first applicant’s health from March 2008. They further alleged that the medical response on the part of the detention facilities had been limited to sporadic ambulance calls (see paragraphs 17 and 112 above).", "135. It is true that they did not submit any documentary evidence in support of those allegations. At the same time the Court does not lose sight of the second applicant’s efforts to collect such evidence. Thus, in the course of the domestic investigation into the death of her son she sought access to and examination of his complete medical file from the detention facilities. That request was never granted and this documentation was not made available to the second applicant or to the domestic prosecution authorities (see paragraphs 63 and 81 above).", "136. Accordingly, it was for the Government to submit the aforementioned medical file detailing the first applicant’s actual medical needs during his detention and the medical response to them.", "137. The Court notes, however, that not a single medical document was submitted to it by the Government regarding the first applicant’s detention between February and May 2008.", "138. In such circumstances the Court finds itself in a position to infer from the Government’s failure to submit copies of any relevant medical documents that the first applicant did not receive adequate medical assistance for his deteriorating health in the ITT and the SIZO, even assuming that he had concealed his HIV status from the authorities (see, mutatis mutandis, Mechenkov v. Russia, cited above, § 110).", "139. Accordingly, there has been a violation of Article 3 of the Convention in this regard.", "3. Medical assistance in the Central Hospital", "(a) The parties’ submissions", "140. The second applicant submitted that even after her son had been sent for examination to the Central Hospital (a civil health-care establishment), its doctors unjustifiably delayed his hospitalisation and specialised treatment, and this irreversibly undermined his prospects of recovery.", "141. The Government disagreed. Referring to the case of Okhrimenko v. Ukraine (cited above, § 71), they contended that the Court was not in a position to speculate on the adequacy of medical treatment provided by civil doctors.", "(b) The Court’s assessment", "142. The Court notes that the hospital in question was a public institution, the acts and omissions of its medical staff being therefore capable of engaging the responsibility of the respondent State under the Convention (see Glass v. the United Kingdom, no. 61827/00, § 71, ECHR 2004 ‑ II).", "143. This is, in any event, not crucial as at the time the first applicant remained in detention and thus under the full control of the authorities, which were obliged to account for his health and to provide him with adequate medical care.", "144. The Court agrees with the Government that it is not its task to assess the medical treatment provided by civil doctors.", "145. At the same time, it notes that the domestic authorities themselves acknowledged that the medical assistance provided to the first applicant by the Central Hospital’s doctors in June 2008 could not be regarded as timely and adequate. Specifically, the Crimea Bureau for Forensic Medical Examinations stated in its report of 26 November 2010 that at least on two occasions, on 5 and 18 June 2008, the Central Hospital’s doctors underestimated the seriousness of the first applicant’s condition and denied him the urgent hospitalisation which he required (see paragraphs 69, 70-72 and 74 above, and, for the case-law to compare, see Geppa v. Russia, no. 8532/06, § 82, 3 February 2011).", "146. The Court has no reasons to question those findings.", "147. It therefore concludes that there has been a violation of Article 3 of the Convention regarding this particular aspect as well.", "4. Handcuffing in hospital", "(a) The parties’ submissions", "148. The second applicant complained that her son had been handcuffed to his bed in the hospital round-the-clock without reason, which had exacerbated his suffering.", "149. The Government submitted, with reference to the letter from the Ministry of Health of 23 October 2009 (see paragraph 44 above), that the first applicant had only been handcuffed on the occasions he was escorted outside his hospital room and during any visits to him. They therefore considered that this security measure had been applied reasonably.", "(b) The Court’s assessment", "150. The Court notes that the second applicant’s allegation about the handcuffing of her son during his treatment in the Central Hospital from 20 to 26 June 2008 is supported by the photos submitted by her (see paragraph 35 above).", "151. As to his stay in Hospital no. 7 from 26 June to 18 July 2008, it appears from the letter of the Ministry of Health of 23 October 2009, cited by the Government, that according to the hospital management the first applicant was handcuffed during that period too. This implies, in the Court’s opinion, handcuffing for most of the time, if not all the time, rather than on an occasional basis, as the Government interpreted it to mean.", "152. The Court further observes that although the Chief of the Bakhchysaray Police – to whom the second applicant complained about her son’s handcuffing – dismissed her complaint on 15 July 2008, referring to the first applicant’s imminent release, he did not deny in principle that handcuffing had been applied (see paragraph 50 above).", "153. In sum, the Court considers it to be sufficiently established by the evidence at hand that the first applicant was subjected to continuous handcuffing in hospital from 20 June to 18 July 2008.", "154. It notes that handcuffing does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports 1997 ‑ VIII, and Henaf v. France, no. 65436/01, §§ 50-53, ECHR 2003 ‑ XI).", "155. In the present case there is no indication that the first applicant ever behaved violently or attempted to escape. Furthermore, it is not disputed by the parties that he was constantly guarded by police officers while in hospital. Moreover, he suffered from severe immunosuppression caused by his HIV status, as well as a number of concurrent illnesses (see paragraph 43 above). No special medical qualifications were required in order to understand how weak and ill he was. Thus, the prosecutor pursuing criminal charges against the first applicant acknowledged on 24 June 2008 that he was in a “critical health condition” (see paragraph 39 above). Nonetheless, the police still considered it necessary to keep him handcuffed in hospital. The handcuffing continued even after the Chief Doctor of Hospital no. 7 indicated to the Bakhchysaray Police Department on 2 July 2008 that the first applicant was seriously ill and that he needed to be unrestricted in his movements. In total, the first applicant remained handcuffed in hospital for twenty-eight days.", "156. The Court considers that this treatment could not be justified by security reasons and, given the first applicant’s poor state of health, is to be considered inhuman and degrading (see Tarariyeva v. Russia, cited above, §§ 110 and 111).", "157. There has therefore been a violation of Article 3 of the Convention in this regard too.", "5. The State’s obligation to protect the first applicant’s life", "(a) The second applicant’s submissions", "158. The second applicant maintained that her son could have recovered and remained alive had the authorities provided him with proper medical treatment in good time. She noted that, while HIV/Aids remained incurable, there were ways to enhance the life of people with the disease. According to her, her son was deprived of any such possibility owing to the fact that he was detained and was therefore fully dependant on the authorities, which, in her view, showed complete disregard for his life.", "159. In addition to her arguments regarding the lack of timely and adequate medical assistance available to the first applicant in detention, the second applicant also referred to his continued detention after the pronouncement of the judgment in his case on 4 July 2008, even though a custodial sentence had not been imposed. She considered that by that measure alone the authorities had put her son in a life-threatening situation.", "160. The second applicant underlined that she was not complaining about the unlawfulness of her son’s detention from the standpoint of Article 5 of the Convention, but that she was referring to it as an argument in support of her claim that the authorities had failed to protect her son’s life.", "161. She further noted that the first applicant’s behaviour before his placement in detention in December 2007 was of no relevance for the fatal outcome of his disease in August 2008, as he had felt well while he had remained at liberty and had not required any particular medical treatment at that stage. It was in detention that his health sharply deteriorated, but remained untreated, which led to his death.", "(b) The Government’s submissions", "162. The Government denied any responsibility on the part of the respondent State for the first applicant’s death. They imputed it to his own behaviour. Firstly, the Government observed that the first applicant had not himself sought any medical assistance for about two years prior to his placement in detention. Secondly, they emphasised that he had concealed his HIV-positive status from the authorities during his detention.", "163. Reiterating the findings of the Ministry of Health’s commission of 20 March 2009, the Government explained the deterioration of the first applicant’s health and the ensuing complications by his delayed application for medical care after having tested HIV-positive, as well as by the severity of the main disease (see paragraph 59 above).", "(c) The Court’s assessment", "164. The Court emphasises that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-147, Series A no. 324).", "165. For a positive obligation of a State under Article 2 of the Convention to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998 ‑ VIII).", "166. Turning to the circumstances of the present case, the Court notes that the first applicant died two weeks after his release from detention and a day after his voluntary discharge from a civil hospital following about a month and a half of specialised in-patient treatment (see paragraphs 42, 52 and 55 above). The Court also notes that his death was caused by the HIV infection contracted at least two years prior to his placement in detention, if not earlier, and that he did not disclose his HIV status to the authorities (see paragraphs 7 and 125 above).", "167. It is not the Court’s task to rule on matters lying exclusively within the field of expertise of medical specialists and establish whether the first applicant’s disease was treatable and whether, accordingly, his death could have been averted (see, mutatis mutandis, Kozhokar v. Russia, cited above, § 108). Instead, in order to determine whether Article 2 of the Convention has been complied with, the Court will focus on determining whether the domestic authorities did everything which could reasonably have been expected of them under the circumstances to protect the first applicant’s life.", "168. Given that the first applicant did not disclose his HIV-positive status, the Court considers that the authorities became aware of it once that diagnosis was clinically established – that is, on 5 June 2008 (see paragraph 125 above).", "169. As to the earlier deterioration of his health in the detention facilities and the lack of prompt and adequate medical care available to him there, in respect of which the Court has found a violation of Article 3 of the Convention (see paragraphs 126-139 above), the Court considers that it is not in a position to examine these issues from the standpoint of Article 2 also, for the following reasons. Firstly, it does not appear that at that stage the health of the first applicant had deteriorated to such an extent that it could be considered life-threatening, and, secondly, the administration of the detention facilities were not aware of his HIV status and the inherent risks.", "170. At the same time, the Court notes that on 5 June 2008 the Central Hospital’s doctors diagnosed the first applicant with HIV infection at the fourth clinical stage, with several concomitant diseases, such as pneumocystis pneumonia, oropharynx-esophagus candidiosis and an ulcer (see paragraph 22 above). As was later established by forensic medical experts, the diagnosis of neumocystis pneumonia alone warranted the first applicant’s urgent hospitalisation (see paragraph 72 above).", "171. There were therefore, from 5 June 2008 onwards, two key factors in place for the State’s positive obligation under Article 2 of the Convention to come into play: firstly, the seriousness of the first applicant’s health condition and, secondly, the knowledge of the authorities about it.", "172. Nonetheless, the seriousness of his condition was underestimated and, as a result, his hospitalisation – already urgently required on 5 June 2008 if not earlier – was delayed until 20 June 2008 (see paragraphs 145 ‑ 146 above).", "173. The Court has already found a violation of Article 3 of the Convention in that regard (see paragraph 147 above). It further notes that, according to its case-law, a failure on the part of the authorities to monitor a detainee’s condition or provide a detainee with medical care in a life ‑ threatening situation may lead to a breach of Article 2 (see Douglas ‑ Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002, and, as a more recent reference, Alimuçaj v. Albania, no. 20134/05, § 130, 7 February 2012).", "174. Accordingly, it will take the aforementioned omissions into account in making its conclusions under Article 2 of the Convention too.", "175. The Court next notes that the Bakhchysaray Court in charge of the first applicant’s trial turned a blind eye to the extreme gravity of his condition even though this had been acknowledged even by the prosecution. Thus, on 24 June 2008 the prosecutor informed the court that there were no objections to the first applicant’s release and indicated that it was necessary to deal with his request for release promptly on account of his “critical condition”. However, the first applicant continued to be deprived of his liberty, while in Hospital no. 7, even after the pronouncement of the judgment of 4 July 2008, which imposed a fine only and not a custodial sentence. He was released only on 18 July 2008 (see paragraphs 47 and 52 above).", "176. There are three particular elements to be considered in relation to the compatibility of an applicant’s health with his continued detention: (a) the medical condition of the detainee, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant (see Mouisel v. France, no. 67263/01, §§ 40-42, ECHR 2002 ‑ IX; Melnik v. Ukraine, cited above, § 94; and Rivière v. France, no. 33834/03, § 63, 11 July 2006).", "177. The Court notes that the first applicant’s health was found to be more and more a cause for concern and to be increasingly incompatible with detention (see and compare Dzieciak v. Poland, no. 77766/01, §§ 100-101, 9 December 2008, in which the Court examined, in particular, the issue of the applicant’s continuous detention from the standpoint of the State’s obligation to protect his life). Furthermore, the first applicant posed no danger to the public and his detention appears to have been not only “inadvisable”, but particularly cruel in the circumstances (see, for a converse example, Ceku v. Germany (dec.), no. 41559/06, 13 March 2007).", "178. The Court does not lose sight of the fact that at the time in question the first applicant was being held not in a detention facility cell but in a civil hospital where he was undergoing specialised in-patient treatment.", "179. On the surface, that might appear to counterbalance the above considerations against his detention. However, the Court considers that this is not so given, in particular, the first applicant’s continuous handcuffing in hospital amounting in itself, under the circumstances, to his inhuman and degrading treatment (see paragraphs 150-157 above).", "180. All in all, even if some of the above-mentioned deficiencies would not alone have been sufficient for a finding of inadequate discharge by the State of its positive obligation to protect the first applicant’s health and life, the Court considers that their coexistence and cumulative effect are more than enough in this regard.", "181. Whether or not the authorities’ efforts could in principle have averted the fatal outcome in the present case is not decisive for this conclusion. What matters for the Court is whether they did everything reasonably possible in the circumstances, in good faith and in a timely manner, to try to save the first applicant’s life (see, mutatis mutandis, Makharadze and Sikharulidze v. Georgia, cited above, § 74).", "182. The Court considers that this is not the case given, in particular, the fact that the first applicant was denied urgent hospitalisation, which he required, for over two weeks; that he remained detained without any justification and while in a critical health condition; and that he was subjected, contrary to doctors’ recommendations, to continuous handcuffing which further exacerbated his health condition.", "183. It follows that there has been a violation of Article 2 of the Convention on account of the respondent State’s failure to protect the first applicant’s life.", "6. Domestic investigation regarding the first applicant’s medical treatment and death", "(a) The parties’ submissions", "184. The second applicant maintained that there had been no effective domestic investigation into the death of her son. She noted, in particular, that the investigating authorities had never studied the complete medical file of the first applicant from the detention facilities. Nor had they questioned all the medical personnel involved. She also pointed out that the decisions to terminate the investigation had been quashed as premature or superficial on several occasions. At the same time, the shortcomings indicated had never been rectified. She therefore contended that the authorities had sought ways to deny any responsibility for the death of her son instead of making genuine efforts to establish its reasons and punish those responsible.", "185. The Government maintained that the domestic investigation into the first applicant’s death had been adequate.", "(b) The Court’s assessment", "186. The Court reiterates that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 of the Convention entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız v. Turkey [GC], no. 48939/99, § 91, ECHR 2004 ‑ XII).", "187. The system required by Article 2 must provide for an independent and impartial official investigation that satisfies certain minimum standards as to effectiveness. The competent authorities must act with exemplary diligence and promptness, and must initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved. The requirement of public scrutiny is also relevant in this context (see, mutatis mutandis, Kats and Others v. Ukraine, cited above, § 116).", "188. In the present case, the second applicant claimed that the death of her son had resulted from the lack of prompt and adequate medical care provided to him by the ITT and the SIZO personnel, as well as by the doctors of the Central Hospital.", "189. The Court notes that the first applicant’s health seriously deteriorated in detention and that the applicants raised the complaints regarding the medical assistance provided to him, at least before the administration of the detention facilities and the management of the Central Hospital, prior to the first applicant’s death. Thereafter, those grievances were further brought to the attention of prosecuting authorities (see paragraphs 33, 45 and 56 above).", "190. The Court notes that the investigation was closed and reopened several times and has lasted for over three and a half years (calculated from August 2008 – see paragraphs 55-56). As a result, on 27 December 2010 criminal proceedings were instituted in respect of the Central Hospital’s doctors. There is no information in the case file as regards the progress of these criminal proceedings. As to the liability of the detention facilities’ staff, the investigation was re-opened on 13 March 2012 and is ongoing.", "191. The Court cannot overlook the failure of the investigating authorities to obtain the first applicant’s complete medical file from the detention facilities where he had been detained, even though the second applicant insisted on that pertinent measure and, moreover, the Crimea Court of Appeal also found that it was necessary in its ruling of 13 October 2009 (see paragraphs 63 and 66 above). This omission was also noted by the Bakhchysaray Court in its ruling of 13 March 2012. Furthermore, the Bakhchysaray Court pointed out that the SIZO personnel in charge of handling the first applicant’s health-related complaints had not even been identified (see paragraph 81 above). In the Court’s view, the failure to take such a basic investigative step, which would have been expected at the very outset of the investigation had it been genuinely aimed at establishing the truth, discloses its flagrant deficiency.", "192. It follows that the respondent State failed to account sufficiently for the deterioration of the first applicant’s health and his subsequent death.", "193. This is a serious omission as, apart from concern for respect of the rights inherent in Article 2 of the Convention in each individual case, important public interests are at stake. Notably, the knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions and medical staff concerned to remedy potential deficiencies and prevent similar errors (see Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006).", "194. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE SECOND APPLICANT", "195. The second applicant additionally complained that, as a result of the denial of prompt and adequate medical care to her son, his subsequent death and the flawed domestic investigation into it, she had endured mental suffering in breach of Article 3 of the Convention. The text of this provision is provided in paragraph 90 above.", "A. Admissibility", "196. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Neither is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "197. The second applicant submitted that, during several months, she had witnessed her child dying in detention, at the age of twenty-seven, without adequate medical care and subjected to permanent handcuffing. She emphasised that, while being aware of the proximate end of his life, she had found herself in a state of complete helplessness and despair, being unable not only to save his life, but even to alleviate his suffering. The second applicant referred to the cynical and indifferent attitude of the domestic authorities, which had manifested itself, in particular, in the continuous detention of her son even after he had been sentenced to a fine only and after the prosecution had acknowledged his critical health condition and had consented to his release. They had showed similar indifference, in her view, by their formalistic approach to the investigation into the circumstances of her son’s death.", "198. Maintaining their assertion as to the absence of any breach of Article 3 of the Convention in respect of the first applicant, the Government considered that the second applicant’s complaint under this provision about her own mental suffering was devoid of any grounds.", "2. The Court’s assessment", "199. The Court has never questioned in its case-law the profound psychological impact of a serious human rights’ violation on the victim’s family members. However, in order for a separate violation of Article 3 of the Convention to be found in respect of the victim’s relatives, there should be special factors in place giving their suffering a dimension and character distinct from emotional distress inevitably stemming from the aforementioned violation itself. Relevant elements include the proximity of the family tie and the way the authorities responded to the relative’s enquiries (see, for example, Çakıcı v. Turkey, no. 23657/94, § 98, 8 July 1999, where this principle was applied in the context of enforced disappearance; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 61, 12 October 2006, where the Court further relied on this principle in consideration of a mother’s complaint about her suffering on account of her five-year old daughter’s detention in another country; and M.P. and Others v. Bulgaria, no. 22457/08, §§ 122-124, 15 November 2011, where the respective complaint concerned suffering of the relatives of an abused child).", "200. In the cited cases the Court attached weight to the parent-child bond. It also held that the essence of such a violation lay in the authorities’ reactions and attitudes to the situation when it was brought to their attention. The Court further emphasised that it was especially in respect of this latter factor that a parent could claim directly to be a victim of the authorities’ conduct (ibid.).", "201. Another factor leading the Court to find a violation of Article 3 of the Convention, in particular, in respect of relatives of a victim of an enforced disappearance, was the continuous nature of their psychological suffering (see, for example, Imakayeva v. Russia, no. 7615/02, § 166, ECHR 2006‑XIII (extracts); and Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006‑XIII (extracts)).", "202. In sum, in such circumstances, Article 3 enjoins the authorities to react to the plight of the victim’s relatives in an appropriate and humane way. On the other hand, in cases of persons who have been killed by the authorities in violation of Article 2, the Court has held that the application of Article 3 is usually not extended to the relatives on account of the instantaneous nature of the incident causing the death in question (see Yasin Ateş v. Turkey, no. 30949/96, § 135, 31 May 2005; Udayeva and Yusupova v. Russia, no. 36542/05, § 82, 21 December 2010; Khashuyeva v. Russia, no. 25553/07, § 154, 19 July 2011; and Inderbiyeva v. Russia, no. 56765/08, § 110, 27 March 2012).", "203. Turning to the present case, the Court notes that, as soon as the second applicant became aware of the disease of her son, who was in detention, she took every effort to save his life, appealing to the hospitals, prosecution authorities and courts involved. Nonetheless, the first applicant continued to be detained even after the prosecution had agreed to his release given the gravity of his health condition (see paragraphs 39-40 above). Neither was he released after the verdict had been pronounced in his case with the penalty being limited to a fine and not providing for any custodial sentence (see paragraph 47 above). His mother, the second applicant, could only passively witness this in a state of complete helplessness. Furthermore, her complaints about the underestimation of the seriousness of her son’s condition were disregarded, even though later they were found to be well-grounded (see paragraphs 33, 69 and 74 above). The Court does not lose sight either of the second applicant’s fruitless efforts to get the handcuffing of her son’s lifted during his stay in hospital (see paragraphs 49-50 above). Lastly, the Court observes that even after the death of the first applicant, the authorities manifested an equally unacceptable attitude towards the second applicant, in particular, by ignoring her requests to get access to her son’s medical file (see paragraphs 63, 66 and 191 above).", "204. Overall, the Court discerns a number of factors in the present case which, taken together, indicate a breach of the second applicant’s rights under Article 3 of the Convention. Namely, it notes: the parent-child bond between her and the first applicant; the activeness of her efforts to save his life or at least to alleviate his suffering; the cynical, indifferent and cruel attitude towards her appeals demonstrated by the authorities both before the first applicant’s death and during its subsequent investigation; the fact that the second applicant had to witness the slow death of her son without being able to help him in any way; and, lastly, the duration of her inherent suffering for about three months.", "205. In the light of the foregoing, the Court considers that the second applicant has been a victim of inhuman treatment.", "206. There has therefore been a violation of Article 3 of the Convention in respect of the second applicant.", "III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION", "207. The applicants complained that the delayed hospitalisation of the first applicant, notwithstanding the interim measure indicated to the Government under Rule 39 of the Rules of Court, had been in breach of Article 34 of the Convention.", "208. Article 34 of the Convention reads as follows:", "“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”", "209. Rule 39 of the Rules of Court provides:", "“1. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it.", "2. Notice of these measures shall be given to the Committee of Ministers.", "3. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.”", "A. The parties’ submissions", "210. The second applicant maintained that the authorities had failed to comply with the interim measure.", "211. The Government disagreed.", "B. The Court’s assessment", "1. General principles", "212. Article 34 of the Convention requires Member States not to hinder in any way the effective exercise of an applicant’s right of access to the Court (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 100, ECHR 2005 ‑ I).", "213. The obligation in Article 34 not to interfere with an individual’s effective exercise of the right to submit and pursue a complaint before the Court confers upon an applicant a right of a procedural nature – which can be asserted in Convention proceedings – distinguishable from the substantive rights set out under Section I of the Convention or its Protocols (see, for instance, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 470, ECHR 2005 ‑ III).", "214. In Mamatkulov and Askarov (cited above, §§ 104, 125 and 128), the Court held that the failure to comply with an interim measure indicated under Rule 39 of the Rules of Court could give rise to a violation of Article 34 of the Convention.", "215. In Paladi v. Moldova ([GC], no. 39806/05, 10 March 2009) the Court stated:", "“87. The Court reiterates that the obligation laid down in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure [...]. It is clear from the purpose of this rule, which is to ensure the effectiveness of the right of individual petition [...], that the intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with ... What matters is whether the situation created as a result of the authorities’ act or omission conforms to Article 34.", "88. The same holds true as regards compliance with interim measures as provided for by Rule 39, since such measures are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition ... It follows that Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the measure indicated by the Court.", "89. Furthermore, the Court would stress that where there is plausibly asserted to be a risk of irreparable damage to the enjoyment by the applicant of one of the core rights under the Convention, the object of an interim measure is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision. It follows from the very nature of interim measures that a decision on whether they should be indicated in a given case will often have to be made within a very short lapse of time, with a view to preventing imminent potential harm from being done. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. It is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification.", "For the same reasons, the fact that the damage which an interim measure was designed to prevent subsequently turns out not to have occurred despite a State’s failure to act in full compliance with the interim measure is equally irrelevant for the assessment of whether this State has fulfilled its obligations under Article 34.", "90. Consequently, it is not open to a Contracting State to substitute its own judgment for that of the Court in verifying whether or not there existed a real risk of immediate and irreparable damage to an applicant at the time when the interim measure was indicated. Neither is it for the domestic authorities to decide on the time-limits for complying with an interim measure or on the extent to which it should be complied with. It is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of materials capable of convincing the Court to annul the interim measure should inform the Court accordingly (see, mutatis mutandis, Olaechea Cahuas v. Spain, no. 24668/03, § 70, ECHR 2006-X; Tanrıkulu v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV; and Orhan v. Turkey, no. 25656/94, § 409, 18 June 2002).", "91. The point of departure for verifying whether the respondent State has complied with the measure is the formulation of the interim measure itself (see, mutatis mutandis, the International Court of Justice’s analysis of the formulation of its interim measure and actual compliance with it in LaGrand, ...). The Court will therefore examine whether the respondent State complied with the letter and the spirit of the interim measure indicated to it.", "92. In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will therefore not re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation.”", "2. Application of the above principles to the present case", "216. The Court notes that the respondent Government were officially informed of the interim measure under Rule 39 on 17 June 2008 (Tuesday, a working day) by a fax message (see paragraph 29 above).", "217. The contents of the interim measure included an instruction to the domestic authorities to transfer the first applicant immediately to a hospital for medical treatment. Despite becoming aware of the interim measure at the latest on the evening of 17 June 2008, it was only on 20 June 2008 that the domestic authorities transferred the first applicant to a hospital.", "218. It follows that the interim measure was not complied with for a period of three days.", "219. The Court notes that the Government considered this delay reasonable, without referring to any impediments which had prevented their earlier compliance with it.", "220. The Court however does not share this view. It explicitly and clearly indicated that the first applicant’s hospitalisation had to be immediate (see paragraph 29 above). It observes that an identically worded interim measure, which it had indicated in the case of Yakovenko v. Ukraine (no. 15825/06, 25 October 2007), had been implemented on the same day (§§ 3 and 22).", "221. There appear no objective impediments or difficulties, which might have prevented equally expedient compliance in the present case.", "222. The Court emphasises that it did not indicate the necessity of the first applicant’s medical examination, but his “[immediate transfer] to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition”. The authorities, however, waited for one day and decided, on 18 June 2008, that no urgent hospitalisation was required. In other words, instead of complying with the indicated interim measure, they decided to re-evaluate its soundness. And, as it was later acknowledged by the domestic authorities themselves, this re-evaluation was erroneous (see paragraphs 74 and 145 above).", "223. Accordingly, there was no acceptable explanation for the domestic authorities’ failure to take immediate action to comply with the interim measure (see, and compare with, Grori v. Albania, no. 25336/04, §§ 185 ‑ 195, 7 July 2009). Whether or not the three-day delay in fact caused the damage which the interim measure was designed to prevent, is irrelevant for the Court’s assessment (see Paladi v. Moldova, cited above, § 89).", "224. The Court concludes the State failed to meet its obligations under Article 34 of the Convention by not complying promptly with the interim measure indicated by the Court on 17 June 2008.", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "225. The second applicant also complained under Article 6 of the Convention about the alleged unfairness of the first applicant’s trial.", "226. The Court notes that the second applicant was not a party to the domestic proceedings complained of. Consequently, she cannot claim to be a victim, within the meaning of the Convention, of a violation of her rights guaranteed therein. The Court therefore rejects this complaint as being incompatible ratione personae with the Convention provisions, pursuant Article 35 §§ 3 (a) and 4 of the Convention.", "227. Lastly, the second applicant complained about the material conditions of her son’s detention in the ITT and the SIZO. She raised this complaint for the first time in her reply to the Government’s observations.", "228. The Court notes that the first applicant’s detention in the conditions complained of ended on 20 June 2008 (see paragraphs 14 and 34 above), whereas the respective complaint was lodged with the Court after September 2009 (see paragraph 4 above), that is, more than six months later (see Novinskiy v. Russia (dec.), no. 11982/02, 6 December 2007, and Malenko v. Ukraine, no. 18660/03, § 40, 19 February 2009). It follows that this complaint was introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "229. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "230. The second applicant claimed 50,000 euros (EUR) for non-pecuniary damage associated with the violations of Articles 2 and 3 of the Convention in respect of the first applicant. She also claimed EUR 10,000 for non-pecuniary damage for the violation of Article 3 of the Convention in respect of herself.", "231. The Government contested these claims as unsubstantiated and excessive. They also submitted that, if the Court decided to award a just satisfaction in respect of some violations regarding the first applicant, the second applicant should not automatically receive that award. According to the Government, it ought to be distributed among all the eligible heirs of the first applicant.", "232. Taking into account the nature of the violations found and ruling on an equitable basis, the Court considers it appropriate to allow this claim in full. It thus makes the following awards under this heading: EUR 50,000 in respect of the non-pecuniary damage suffered by the first applicant, to be paid to the second applicant in her capacity as his successor in the proceedings before the Court after his death; and EUR 10,000 in respect of the non-pecuniary damage suffered by the second applicant herself, to be paid to her in her personal capacity.", "B. Costs and expenses", "1. Legal fees", "233. The second applicant also claimed 10,000 Ukrainian hryvnias (UAH) for legal fees (equal to EUR 900 at the time when her claim was lodged). In support of this claim, she submitted a contract of legal services rendered in the proceedings before the Court dated 5 June 2008, according to which she was to pay the lawyer, Mr Lesovoy, UAH 10,000. That contract contained a handwritten receipt note by Mr Lesovoy according to which he had received the stipulated amount from the second applicant.", "234. The Government considered that the second applicant had failed to demonstrate that the costs claimed were reasonable and had actually been incurred.", "235. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999 ‑ V).", "236. It notes that in the present case the second applicant was bound by and complied with her contractual obligations vis-à-vis Mr Lesovoy, who represented her son and herself in the proceedings before the Court.", "237. The Court therefore considers that the aforementioned requirements have been met in this case and awards this claim in full.", "2. Postal expenses", "238. The second applicant also claimed UAH 262.69 (an equivalent of about EUR 25) for postal expenses. In support of her claim she submitted eight postal receipts in respect of her correspondence with the Court.", "239. The Government submitted that the second applicant had failed to support her claim with documents.", "240. Regard being had to the documents in its possession, the Court considers it reasonable to grant this claim in full and to award the second applicant EUR 25 under this heading.", "C. Default interest", "241. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants are HIV- positive, with a minimum degree of disability of 67%. They are, or were, detained in Aghios Pavlos Hospital ( psychiatric section ) at Korydallos Prison.", "A. The applicants ’ prison history", "6. Andreas Martzaklis: imprisoned on 7 May 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court, a decision given by the Indictments Division of the Khalkida Criminal Court in 2010 ordering the execution of a sentence passed by the Athens Criminal Court of Appeal which had been stayed, and a judgment delivered by the Athens Court of Appeal sentencing him to four years ’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 8 May 2013 but rearrested the same day and placed in preventive detention.", "7. Christos Sarris: provisionally detained from 5 December 2011 to 14 December 2012, and detained by judgment of 14 December 2012 sentencing him to 6 years ’ imprisonment and then by judgment of 19 March 2014 sentencing him to 6 years and 4 months ’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 9 May 2014 pursuant to section 19 of Act No. 4242/2014.", "8. Christos Efstathiou: imprisoned on 14 February 2011. Detained pursuant to a decision given by the Indictments Division of the Khalkida Criminal Court on 22 December 2008, ordering the execution of the remainder of a sentence with suspensive effect, and pursuant to a judgment delivered by Athens Criminal Court, which merged the sentences into a total of 25 months. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 June 2014 pursuant to Article 105 of the Criminal Code.", "9. Efthymios Karatzoglou: imprisoned on 18 July 2011. Detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appel on 12 April 2013 sentencing him to two years and eight months ’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 15 May 2013 pursuant to section 1 of Act No. 4043/2012.", "10. Achilleas Papadiotis : imprisoned on 17 February 2011. Detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 10 June 2013 sentencing him to 10 years and 4 months ’ imprisonment ( starting date for serving the sentence : 8 December 2012). Detained as a convicted prisoner at the time of the application to the Court. Transferred to Patras Prison on 6 October 2014.", "11. Dimitrios Nikolopoulos: imprisoned on 20 August 2012 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 9 February 2012 sentencing him to 10 years ’ imprisonment, and a judgment delivered by the Athens Criminal Court on 1 December 2010 sentencing him to three months ’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Placed in Aghios Pavlos Hospital.", "12. Spyridon Petrenitis: detained since 18 April 2012 pursuant to a judgment delivered by the Larissa Court of Appeal on 1 April 2013 sentencing him to two years ’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 23 May 2013 under section 1 of Act No. 4043/2012.", "13. Chrysafis Chatzikos: imprisoned on 13 July 2012 and detained ever since under the following decisions: 17 March 2010 judgment of the Athens Criminal Court sentencing him to ten months imprisonment; 23 February 2012 judgment of the Athens Criminal Court sentencing him to seven months ’ imprisonment; 24 February 2012 judgment of the Athens Criminal Court sentencing him to ten months ’ imprisonment; 8 June 2012 decision of the Indictments Division of the Chios Criminal Court ordering the execution of the remainder of a sentence with suspensive effect which had been passed by the Athens Criminal Court on 31 August 2011; and 5 April 2013 judgment of the Athens Criminal Court of Appeal sentencing him to 18 years ’ imprisonment (in provisional detention from 16 August 2012 to 5 April 2013).", "14. Christos Dorizas: imprisoned on 21 September 2012 and detained pursuant to a judgment delivered by the Piraeus Criminal Court of Appeal on 11 November 2011, sentencing him to ten years ’ imprisonment, followed by a judgment delivered by the same court on 14 December 2012 sentencing him to fifteen months ’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court and constantly since then.", "15. Panagiotis Kormalis: imprisoned on 25 July 2012 and detained pursuant to a judgment delivered by the Crete Criminal Court of Appeal on 10 June 2013 sentencing him to five years and three months ’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014. His release warrant mentioned that he had contracted AIDS.", "16. Aimilianos Chamitoglou: imprisoned on 5 April 2012 and detained : first of all, under a provisional detention order of 1 October 2013 ( on charges of armed robbery); and secondly, pursuant to a judgment delivered by the Athens Court of Appeal on 25 February 2014 sentencing him to six years ’ imprisonment ( beginning on 27 March 2012). On 10 February 2014 the Athens Criminal Court of Appeal acquitted him of the armed robbery charge. Released on licence on 17 March 2014 under section 19 of Act No. 4242/2014.", "17. Antonios Poulopoulos : imprisoned on 19 August 2011 and detained pursuant to a judgment delivered by the Athens Criminal Court of Appeal on 20 June 2012 sentencing him to six years ’ imprisonment. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 13 September 2013 under Article 105 of the Penal Code.", "18. Nikolaos Drosakis: imprisoned on 24 April 2012. Detained pursuant to a decision given by the Indictments Division of the Nafplio Criminal Court on 17 October 2012, and to the judgments of the Nafplio Criminal Court of Appeal and the Athens Criminal Court of Appeal of February and 24 April 2013 respectively, sentencing him to various prison terms. Detained as a convicted prisoner at the time of the application to the Court. Released on licence on 26 March 2014 under section 1 of Act No. 4043/2012. Has since returned to prison.", "19. According to the information supplied by the applicants who had been convicted under court judgments, which information was not disputed by the Government, the courts had not granted suspensive effect to their appeals ( see Article 497 § 4 of the Code of Criminal Procedure ).", "B. Conditions of detention at the Aghios Pavlos Hospital in Korydallos Prison", "20. In a petition transmitted on 5 October 2012 under Article 572 of the Code of Criminal Procedure to the supervising public prosecutor responsible for Korydallos Prison, forty-five HIV-positive persons detained in the Aghios Pavlos Hospital, including the applicants, complained of their conditions of detention on the second floor of that hospital. They drew attention to the overcrowded premises, the uncontrolled admission of new patients, and the fact that they were held with other detainees suffering from cancer, asthma, hepatitis, venereal diseases, bronchitis, scabies, psoriasis and even tuberculosis, which diseases necessitated confinement to individual cells because several of them were transmissible. A small quantity of cream had been distributed to some of the HIV- positive detainees who were also affected with scabies. They had been advised to change their sheets and underwear every day and to wash them at high temperatures, even though the washing machine was out of order. When they had gone to fetch their medication the nurses had told them not to touch the bars through which they handed over the medicines in order to prevent the risk of infection. The administrative and medical staff had not given the detainees any official information in order to minimise the seriousness of the epidemic.", "21. On 12 October 2012 the supervising public prosecutor had informed the detainees that “ only 15 persons” were suffering from scabies.", "Relying on Article 6 of the Prison Code the HIV- positive detainees, including the applicants, had also complained to the Prison Hospital Board, but had received no reply.", "22. A delegation of HIV- positive detainees had been received by the supervising public prosecutor to draw attention to the constantly increasing numbers of persons detained in the Aghios Pavlos Hospital and the intolerable conditions of detention.", "23. The applicants submitted that the cells were so overcrowded that the personal space available for each detainee was less than 2 m², including beds and sanitary facilities.", "24. The bathrooms fell short of minimum hygiene standards and cleaning in the premises was left to the discretion of the few HIV-positive persons in receipt of an allowance enabling them to purchase cleaning products.", "25. The food was so poor in nutritional value that HIV- positive detainees risked developing AIDS owing to physical debilitation.", "26. The premises were under -heated, and detainees were exposed to low temperatures, particularly at night.", "27. Nor had the problem of smoking been resolved. Several detainees smoked in the communal areas, the cells and the dormitories, and the non- smokers, especially those with respiratory problems, became passive smokers.", "28. The hospital staff did not include any infectious disease specialists, which placed HIV- positive detainees at risk because they were diagnosed by non- specialists.", "29. During the distribution of medicines the nurse, wearing gloves, left the boxes on the floor outside the cell bars, and the HIV-positive persons had to stretch through the bars to retrieve them, avoiding touching the others, as recommended by the nurse.", "30. The applicants also complained about the fact that diagnoses were conducted automatically and that the doctors always prescribed the same medicines without individually examining each patient. Any requisite transfers to outside hospitals were always carried out after long delays. Distribution of medication prescribed for some of the applicants was often interrupted without explanation for periods of between one week and one month. Other applicants had not yet begun their treatment, which delay the doctors explained by claiming that “ the limit [ regarding the presence of the virus in the blood ] necessitating the initiation of treatment has increased ”.", "31. The applicants also complained of a lack of access to the outside world, news programmes and even use of the telephone, and the fact that the detainees were not held separately from the convicted prisoners.", "32. Lastly, the applicants stated that a video on conditions of detention had been leaked in November 2014 and had induced the prosecutor with the Court of Cassation to order an inquiry, which was currently under way.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "47. The applicants complained of their conditions of detention at the Aghios Savvas Hospital in Korydallos Prison, their “ ghettoisation ” in a separate wing of that hospital, and the failure of the authorities to consider whether those conditions were compatible with their state of health. They alleged a violation of Article 3 taken alone and in conjunction with Article 14 of the Convention. Those provides read as follows :", "Article 3", "“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ”", "Article 14", "“ The enjoyment of the rights and freedoms set forth in (this) Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ”", "...", "B. Merits", "60. The Government accepted that during the period from September to December 2011 there had been a shortage of medication for HIV- positive patients in the Korydallos Prison Hospital owing, on the one hand, to the increased number of such detainees and on the other, to insufficient funding for the purchase of such highly expensive medication. However, that issue had been resolved at the beginning of 2012. Follow-up treatment was provided for HIV-positive detainees at regular intervals, patients requiring hospital treatment were transferred to public hospitals, and biological tests on HIV-positive persons were sent to the relevant specialised laboratories.", "61. The Government rejected the applicants ’ use of the word “ ghettoisation ”, and explained that the HIV- positive detainees were accommodated on the second floor or the Aghios Pavlos Hospital because of the need to treat and provide for them, to protect them from infectious diseases, to provide them with quality meals, and to ensure that they had longer exercise periods and access to their own separate kitchens and washrooms.", "62. The applicants relied on the findings of the recent report by the Committee for the Prevention of Torture and Inhuman and Degrading Punishment or Treatment of 5 July 2013, which concerned the general conditions of detention in Korydallos Prison and other prisons, particularly as regards overcrowding and the segregation of detainees carrying the HIV virus. In particular connection with the conditions prevailing in the Aghios Pavlos Hospital at Korydallos, they submitted that the Greek press had published many articles on the situation in that hospital, and that the media coverage had extended beyond the national borders. Representatives of several political parties which had paid numerous visits to the hospital had described the conditions they had witnessed as “ shocking ”. Even the hospital staff had publicly stated that the conditions were problematical. A video on the conditions of detention had been leaked in November 2014 and induced the prosecutor with the Court of Cassation to order an inquiry, which was currently under way.", "63. The applicants presented several recent press articles from 2013 and 2014 reporting on the worsening living conditions in the hospital, particularly the increasing numbers of HIV-positive detainees (128 out of a total of 209) and renewed delays and interruptions in the provision of treatment.", "64. The Court reiterates its case-law to the effect that Article 3 cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital so that he can have a particular kind of medical treatment. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance ( see Kudla v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI).", "65. The Court also reiterates that the national authorities must ensure that the diagnoses and care provided in prisons, including prison hospitals, are prompt and accurate, and that where necessitated by the nature of a medical condition, supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at curing the detainee ’ s diseases or preventing their aggravation ( see Pitalev v. Russia, no. 34393/03, § 54, 30 July 2009). The Court reserves sufficient flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” ( see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008).", "66. Lastly, the Court notes that information about conditions of detention, including the issue of medical care, falls within the knowledge of the domestic authorities. Accordingly, applicants might experience difficulties in procuring evidence to substantiate a complaint in that connection. What is expected from applicants in such cases is to submit at least a detailed account of the facts complained of. The burden of proof is then shifted to the Government to provide explanations and supporting documents ( see Salakhov and Islyamova v. Ukraine, no. 28005/08, § 132, 14 March 2013).", "67. In the present case, the Court notes that it transpires from the applicants ’ allegations that they are held in dormitories which are so overcrowded that the personal space available for each detainee is less than 2 m², including beds and sanitary facilities. The bathrooms fall short of minimum hygiene standards and cleaning in the premises is left to the discretion of a few detainees. The food is so poor in nutritional value that HIV-positive detainees risk developing AIDS through physical debilitation. The premises are under-heated and the detainees are exposed to low temperatures, particularly at night.", "68. The applicants stated that diagnoses are conducted automatically and that the doctors always prescribe the same medicines without individually examining each patient. The staff hospital does not include any infectious disease specialists, which places HIV-positive detainees at risk because they are diagnosed by non-specialists. Any requisite transfers to outside hospitals are always carried out after long delays. Distribution of medication prescribed for some of the applicants is often interrupted without explanation for periods of between one week and one month. Other applicants have not yet begun their treatment, which delay the doctors explain by claiming that “the limit [regarding the presence of the virus in the blood] necessitating the initiation of treatment has increased”.", "69. The Court also notes that the Government have not really rebutted the applicants ’ specific allegations, confining themselves to a few generalities concerning the Aghios Pavlos Hospital in Korydallos Prison.", "70. The Court would not question the prison authorities ’ initial intention to transfer such HIV- positive detainees as the applicants to the Prison Hospital in order to provide them with greater comfort and regular follow-up treatment. It takes note of the Government ’ s arguments to the effect that the applicants ’ situation is not akin to “ ghettoisation ” because their placement in the psychiatric hospital had been justified by the need to improve their treatment, to protect them against infectious diseases, to ensure better nutrition, to enable them to exercise for longer periods and to give them access to their own separate kitchens and washing facilities.", "71. Therefore, any differential treatment implemented had pursued a “ legitimate aim ”, namely to provide them with better conditions of detention than were available to ordinary detainees. Nevertheless, a difference in treatment lacks objective and reasonable justification if, additionally, there is no “ reasonable relation of proportionality ” between the means used and the aim pursued. If an HIV-positive detainee were to be kept separate from other detainees, he would have to be transferred to premises which were tailored to his medical needs and well-being.", "72. In that regard, the Court notes from the outset that the applicants were simply HIV-positive and had not developed AIDS, and, as such, there had been no need to isolate them in order to prevent the spread of a disease or the contamination of other detainees. Furthermore, the Court attaches great importance to the findings of the Ombudsman and the observations of the Justice Minister and the Prosecutor with the Court of Cassation, as well as those of the Parliamentary Assembly of the Council of Europe and the CPT .... These findings show that the authorities ’ good intentions were doomed to failure in view of the situation prevailing in the psychiatric department of the Prison Hospital. In his report of 26 October 2012 the Ombudsman noted the irregular intervals at which the applicants received their treatment and the difficulty of treating them in a place where the risk of transmission of infectious diseases was very high. In a press release of 6 March 2014 the Ombudsman pointed out that the infrastructures were old and completely inappropriate, that there were insufficient medical staff and that the concentration of HIV- positive persons in one wing had created the conditions for “ghettoisation and stigmatisation ” .... For its part, the CPT stressed that the fact that detainees were HIV-positive was not a valid public health reason for isolating them.", "73. In March 2014 the Parliamentary Assembly of the Council of Europe noted that the hospital, which had been designed for 60 patients, housed 200 detainees, most of whom were HIV- positive or suffered from infectious diseases such as tuberculosis and hepatitis, and that in such conditions it was impossible to provide the detainees with appropriate healthcare ....", "74. In January 2014, according to the applicants ’ allegations based on press articles which had been included in the case file, undisputed by the Government, the number of detainees in the Aghios Pavlos Hospital totalled 209 persons, 128 of whom carried the HIV virus. The articles once again noted interruptions and delays in the administration of medication.", "75. Under those conditions, the Court deems proven the poor material and health conditions at the Aghios Pavlos Hospital, as well as the irregularities in the administration of appropriate treatment. It holds that the applicants were – and some of them possibly still are – exposed to physical and mental suffering that went beyond the suffering inherent in imprisonment. It therefore finds that they sustained inhuman and degrading treatment and that their segregation had no objective and reasonable justification because it was not necessitated by the circumstances. There has accordingly been a violation of Article 3 taken alone and in conjunction with Article 14 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant is four-limb deficient as a result of phocomelia due to thalidomide. She also suffers from problems with her kidneys. On 20 January 1995, in the course of civil proceedings in Lincoln County Court for recovery of a judgment debt, she refused to answer questions put to her concerning her financial position and was committed to prison for seven days for contempt of court. In the applicant's recollection, the judge ordered that she should be taken directly to Wakefield Prison. Before leaving the court the applicant asked a court officer if she could take the battery charger for her wheelchair with her. She alleges that the officer told her that this would be considered a luxury item and that she would not, therefore, be able to bring it.", "8. Because the applicant's case had been heard during the afternoon of 20 January 1995, it was not possible to take her to prison until the next day and she spent that night in a cell in Lincoln Police Station. This cell, which contained a wooden bed and a mattress, was not specially adapted for a disabled person. The applicant alleges that she was forced to sleep in her wheelchair since the bed was hard and would have caused pain in her hips, that the emergency buttons and light switches were out of her reach, and that she was unable to use the toilet since it was higher than her wheelchair and therefore inaccessible.", "9. The custody record states that on arrival, at 7.20 p.m., the applicant informed the custody officer that she suffered from kidney trouble and a recurring ear infection but that she did not require any medication or to see a doctor at that time. At 7.50 p.m. she declined a meal and a hot drink. At 8.50 p.m. the applicant said she was cold so the officer wrapped her in two blankets. When she was checked on again at 9.15 p.m. the applicant was still complaining of being cold. At 9.35 p.m., since she was still cold and had a headache caused by the cold, another blanket was wrapped around her. She was offered a hot drink which she refused. The applicant was asleep at 10 p.m., but by 10.50 p.m. she was awake again, complaining about the cold, and again refused a hot drink. At 11.15 p.m. she asked to see a doctor, who arrived at 11.50 p.m. The doctor's note of his examination of the applicant at 12.35 a.m. states:", "“Patient complained of feeling cold, headache and queasy (no food since admission – offered but refused). Talking quite sensibly, not obviously hypothermia, seated in wheelchair. Tells me unable to lie flat and sleeps on sofa, sitting up, at home. On Erythromycin for ear infection. On examination ears NAD Nystigmus J36. Unfortunately the facilities available in the cells for this type of disabled person ( sic ). Really requires a room temp in the high 70's as not moving/not able to move around. Insulated with'space blanket'and extra blankets. Offered/given Paracetamol and [bn] stemetil as no co-proxamol available.”", "10. According to the custody record, the applicant slept until 7 a.m., when she was moved to another cell and offered food and drink, which she refused. At 8.30 a.m. she was taken to New Hall Women's Prison, Wakefield, where she was detained until the afternoon of 23 January 1995.", "11. The applicant was not placed in a normal cell in New Hall, but was instead detained in the prison's health care centre. Her cell had a wider door for wheelchair access, handles for the disabled in the toilet recess and a hydraulic hospital bed. On arrival at the prison the applicant completed a medical questionnaire. She stated that she had health worries but that they were “under control – takes it as it comes”. Staff Nurse Broadhead, who countersigned the questionnaire, wrote:", "“Admitted into hospital mainly for mobility problems. Inmate has thalidomide and uses an electric wheelchair which would be difficult to use in the main prison due to steps e.g. to dining room. Has not brought chair charger with her as she says police wouldn't let her.", "She suffers from urological problems and has intermittent renal failure ... Is able to feed herself if food is cut up, is able to use cup. Manages on and off the toilet to P.U. [pass urine] but will need assistance with B.O. [opening bowels] in order to clean herself.", "Usually sleeps on a couch at home and her dog helps her up during the night. Will need assistance here during the night to get off bed to use the toilet. Will try to use the hospital bed with backrest out. Contacted Dr Rhodes re help for night nurse. Memo done to Night Orderly Officer and Security re assistance at night and need to unlock ...", "She is allergic to many antibiotics ... Needs frequent changes of clothes due to urinary problems.", "Has settled into unit and eaten dinner.", "PS: Cannot be lifted in normal fashion as she has a persistently dislocated shoulder due to an old injury.”", "12. The applicant was examined by Dr Kidd, whose notes stated:", "“New reception.", "Thalidomide victim with numerous deformities including absent arms upper/lower with dislocating L shoulder and no use in R upper limb. Both lower limbs are absent with small feet.", "Bladder – is unable to empty completely and gets frequent retentions (when she needs catheterisation) and infection ...", "Bowels – ... unable to manually clean herself.", "At home she is relatively independent tho'has numerous services including electric wheelchair – which may need recharging over W/E [weekend].", "In hospital has difficulty with", "bed – too high", "sink – unable to reach", "mobility – battery running down", "fluid intake – likes to take juice and there is none", "diet – vegetarian", "general hygiene – needs help ...", "Needs: fluid intake", "batteries recharged", "adequate temperature ...”", "13. A “continuous medical record” on the applicant was kept during her detention. The first entry, dated 21 January 1995, stated:", "“I asked duty Governor, Mr Ellis, to give permission for a battery charger for Adele's wheelchair to be brought in if we could arrange it. He agreed to this and whilst here we pointed out the numerous problems staff may encounter with this inmate i.e.", "(1) Needs lifting in and out of bed and she says this is usually done by one person standing behind her with arms around her midriff then lifting her either onto the bed or onto her wheelchair.", "(2) She has, at home, a device worked by compression that gets her in and out of the bath. If she doesn't have a daily bath she risks developing sores, especially where her foot lies across her'leg'.", "(3) Because of recurrent urinary infections she should take two litres of fluid daily but usually has juice and doesn't like water, therefore will probably reduce her fluid intake. After some consideration Mr Ellis decided that if we could find Adele a suitable place in outside hospital he would licence her to go, but we do not have any medical condition to admit her to hospital with. Dr Kidd will review Adele tomorrow, as he thinks there is a likelihood she will develop a UTI [urinary tract infection].”", "14. The nurses who cared for the applicant during her detention kept a contemporaneous record, which stated for the night of 21 January 1995 :", "“Impossible to toilet during the night. Have been into Adele's cell twice. Took over 1/2 hour to toilet her then could not get her back on the bed. Given analgesia and she is getting a great deal of pain through lying on a solid mattress. Very difficult to care for her with one nurse.”", "15. The applicant alleged that on the evening of 21 January 1995 she was lifted onto the toilet by a female prison officer, but was then left sitting on the toilet for over three hours until she agreed to allow a male nursing officer to clean her and help her off the toilet. The Government submitted that on 21 January 1995 there was only one female nurse on duty, Nurse Lister, and that she enlisted the help of two male members of staff, Senior Officer Tingle and Officer Bowman, and that the two male members of staff assisted Nurse Lister in sitting the applicant up and then left the room while the applicant moved her bowels. Nurse Lister then cleaned the applicant and laid her back down. It is unclear from the Government's submissions whether Senior Officer Tingle and Officer Bowman were nursing staff or whether they were prison officers without nursing qualifications. The applicant further claimed that later that evening, a female nurse who was assisting her onto the toilet removed her bedclothes in the presence of two male prison nursing officers, thereby exposing her, naked from the chest down, to the male officers. The Government denied that these incidents occurred. They pointed out that prior to her release the applicant made a complaint to the prison governor concerning the lack of adequate facilities, but containing no mention of the above events.", "16. An agency nurse was employed to care for the applicant during the night of 22 to 23 January 1995. The entries in the nursing record for 22 January stated:", "“Says she finds bed uncomfortable and there is a risk of her developing bed sores, but she is not completely immobile and is able to shift her weight about the bed. No problems with diet but fluid intake diminished due to her not liking water. There is a need for us to separate Adele's little whims from her genuine problems.", "Bowels opened, says she's in retention and has not PU'd [passed urine] since 01.00 hours, refusing to drink water, refuses to get ready for bed until 8 p.m.", "Night – 21.50 asked to be put to bed. When asked why she was not in bed says day staff said agency nurse was going to wash her and put her to bed.", "23.10 asked to be moved as she was having pains in'legs'. Coproximol given and sat up. Settled and slept later. Has not PU. Has been drinking.”", "17. The remission provisions in sections 45 and 33 of the Criminal Justice Act 1991 meant that the applicant had only to serve half the sentence imposed, namely, three and a half days. Prior to her release, on 23 January 1995, the applicant was examined by Dr Kidd who found she needed catheterising due to urine retention. The medical record stated:", "“For release this afternoon as soon as transport arrangements can be made. ...", "To have bath and bladder emptied via catheter before leaving.", "When asked if she had any specific medical complaints – she only asked for a bath and to be catheterised.", "She had some complaints about her sleeping arrangements. Said that Gv. Mr Ellis had said that she could sleep on a chair and have her cell door open all night. Given that she is due for release today she said her Governor's application was immaterial. ...”", "18. The applicant was collected from prison by a friend. She claimed to have suffered health problems for ten weeks as a result of her treatment in detention, but has not provided direct medical evidence in support of this claim.", "19. On 30 January 1995 the applicant consulted solicitors with a view to bringing an action in negligence against the Home Office. She was granted legal aid, limited to obtaining evidence and seeking counsel's opinion as to merits and quantum. In his opinion dated 6 March 1996, her counsel referred to the difficulties which the applicant was likely to face in proving that she had suffered the ill-treatment which she alleged, and referred to a judgment of the High Court ( Knight and Others v. Home Office and Another [1990] 3 All England Law Reports 237) which held that, given the lack of resources, the standard of care required of a prison hospital was lower than that which would be required in an equivalent outside institution. Counsel advised that, in the light of this case-law and the difficulties of proof which she faced, the applicant had a limited prospect of success in her claim and that, even if successful, damages were not likely to exceed 3,000 pounds sterling. In the light of this advice, the applicant's legal aid certificate was discharged on 13 May 1996." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "20. It is not normal practice for the County Court to give any direction as to where a particular defendant should be detained. Section 12(1)-(2) of the Prison Act 1952 provides that it is for the Secretary of State to allocate a prisoner to any prison:", "“12 (1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.", "(2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct, and may by the direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "21. The applicant alleged that her committal to prison and treatment in detention violated Article 3 of the Convention, which provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "22. The Government submitted that with the passage of time it was impossible to establish whether or not any indication had been given by the sentencing judge as to where the applicant should be detained, although it was not normal practice for the County Court to give any such direction. The police and prison authorities had direct knowledge of the facilities available in police stations and prisons and it was, therefore, more appropriate for the courts to leave allocation decisions to these bodies. Even if the judge did not directly consider the applicant's special needs, this could not in itself amount to a breach of Article 3 unless there was a real risk of serious ill-treatment, which did not arise in the applicant's case.", "The treatment the applicant received while in detention fell considerably short of the minimum level of severity necessary to raise an issue under Article 3. Thus, her special circumstances were recognised on her reception at New Hall and she was placed in the health care centre, with access to nursing staff who took appropriate measures to ensure that her needs were met with regard to food, drink and hygiene. The Government denied that the applicant was attended to by a male officer or was subjected to any humiliating or degrading treatment as a result of exposure to male officers, and reminded the Court that, according to its case-law, it is for the applicant to prove the substance of her allegations beyond reasonable doubt.", "23. The applicant submitted that the sentencing judge was well aware of her health problems but nonetheless decided to commit her to prison without first ensuring that there would be adequate facilities. At the police station she was detained in cold conditions which provoked a kidney infection. Her cell in the prison health care centre was not adapted to her needs, as was recognised by the prison doctor who examined her on admission, and the nurses and prison officers who cared for her were unsympathetic and did little to help. Throughout the period of her detention she had been subjected to inhuman and degrading treatment which had left her with physical and psychological scars.", "24. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.", "In considering whether treatment is “degrading” within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67-68 and 74, ECHR 2001-III).", "25. In this case the applicant, a four-limb-deficient thalidomide victim with numerous heath problems including defective kidneys, committed contempt of court in the course of civil proceedings and was ordered by a judge to be detained for seven days (although, as a result of the rules on remission of sentences, she was in fact detained for three nights and four days). It appears that, in accordance with English law and practice, the sentencing judge took no steps, before committing the applicant to immediate imprisonment – a particularly harsh sentence in this case – to ascertain where she would be detained or to ensure that it would be possible to provide facilities adequate to cope with her severe level of disability.", "26. The applicant and the Government have submitted different accounts of the treatment she received while in detention and, so long after the event and in the absence of any findings by the domestic courts, it is difficult to establish in detail precisely what occurred. However, the Court considers it significant that the documentary evidence submitted by the Government, including the contemporaneous custody and medical records, indicate that the police and prison authorities were unable adequately to cope with the applicant's special needs.", "27. During her first night of detention the applicant was kept in a cell in a local police station because it was too late in the day to take her to prison. The custody record shows that she was complaining of the cold every half hour – a serious problem for the applicant who suffered from recurring kidney problems and who, because of her disability, could not move around to keep warm. Finally, a doctor was called, who noted that the applicant could not use the bed and had to sleep in her wheelchair, that the facilities were not adapted to the needs of a disabled person and that the cell was too cold. The Court notes, however, that despite the doctor's findings no action was taken by the police officers responsible for the applicant's custody to ensure that she was removed to a more suitable place of detention, or released. Instead, the applicant had to remain in the cell all night, although the doctor did wrap her in a space blanket and gave her some painkillers.", "28. The following day the applicant was taken to Wakefield Prison, where she was detained for three days and two nights. During her first night's detention the nursing record states that the duty nurse was unable to lift the applicant alone and thus had difficulty in helping her use the toilet. The applicant submits that, as a result, she was subjected to extremely humiliating treatment at the hands of male prison officers. The Government deny her account, but nonetheless it seems clear that male officers were required to assist in lifting the applicant on and off the toilet.", "29. The Court observes that there are notes in the applicant's admission records by a doctor and staff nurse expressing concern over the problems that were likely to be encountered during her detention, including reaching the bed and toilet, hygiene and fluid intake, and mobility if the battery of her wheelchair ran down. Such was the concern that the prison governor authorised staff to try and find the applicant a place in an outside hospital. In the event, however, they were unable to transfer her because she was not suffering from any particular medical complaint. By the time of her release the applicant had to be catheterised because the lack of fluid intake and problems in getting to the toilet had caused her to retain urine. She claims to have suffered health problems for ten weeks thereafter, but has supplied no medical evidence to support this.", "30. There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3 of the Convention. It therefore finds a violation of this provision in the present case.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "31. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "32. The applicant claimed still to suffer the emotional and psychological consequences of her ill-treatment in detention, and asked the Court to award her 50,000 pounds sterling (GBP) as compensation for non-pecuniary damage.", "33. The Government submitted that the applicant's claim was wholly excessive and unreasonable, particularly since no evidence had been provided to substantiate her allegations of continuing trauma. They reasoned that the finding of a violation would be adequate just satisfaction.", "34. The Court, bearing in mind its above findings with regard to the ill-treatment suffered by the applicant, considers that she suffered some non-pecuniary damage as a result of her detention, which cannot be compensated solely by the finding of a violation (see Peers, cited above, § 88). In determining the amount of the award it has regard, inter alia, to the facts that there was no intention to humiliate or debase the applicant and that she was deprived of her liberty for a relatively short period of time. In light of all the circumstances, it awards GBP 4,500 under this head.", "B. Costs and expenses", "35. The applicant claimed legal costs and expenses of GBP 4,000 for the Convention proceedings. The Government made no comments in relation to this claim.", "36. The Court considers that the applicant's claim for costs is reasonable and awards it in full, plus any value-added tax which may be chargeable, less the amounts already paid in legal aid by the Council of Europe.", "C. Default interest", "37. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1980 and lives in Siedlce.", "6. In 2000 he was diagnosed with paraplegia. He is in a wheelchair and suffers from serious malfunctions of the urethral and anal sphincters and other ailments.", "A. The applicant ’ s detention before September 2005", "7. The applicant was tried in a number of criminal proceedings and sentenced to a total of eight years ’ imprisonment.", "1. The applicant ’ s first arrest and release", "8. The applicant was arrested on 7 January 2001 and was initially committed to Siedlce Prison.", "9. On 11 January 2001 he was transferred to the surgical and orthopaedic ward of the Warszawa-Mokotów Remand Centre hospital, where he underwent medical examinations and treatment.", "10. From 15 January to 28 February 2001 he was detained in the general wing of Warszawa-Mokotów Remand Centre.", "11. On 28 February 2001 the applicant was granted a six month period of leave in the enforcement of his sentence ( przerwa ). He was taken home by ambulance.", "12. The licence for this temporary release was extended for a further six months in August 2001. It was subsequently extended on 3 August 2001 until 28 February 2002, after which date the applicant failed to return to prison. On 20 May 2002, however, he was granted a further extension until 28 August 2002.", "13. In August 2002 the Siedlce Regional Court ( Sąd Okręgowy ) refused to extend the applicant ’ s licence again, finding that he was fit for detention. An appeal lodged by the applicant was dismissed by the Warsaw Court of Appeal. Following the expiry of the licence, the applicant again chose not to return to prison.", "14. On 15 April 2003 the applicant was granted another extension until 15 June 2003. Again, he failed to return to prison after that date.", "2. The applicant ’ s second arrest and release", "15. On 1 September 2003 the applicant was arrested, taken to Siedlce Prison by prison bus and placed in a single-occupancy cell ( a so ‑ called “infirmary cell”). During the transfer to the prison, the applicant was seated in his immobilised wheelchair, leaning against the back of the bus.", "16. The applicant was not offered any fresh incontinence pads on his arrival in Siedlce Prison, and had to use the ones which he had managed to take with him at the time of his arrest. The prison did not provide him with fresh catheters.", "17. On 3 September 2003 the applicant was transferred by prison bus to Warszawa-Mokotów Remand Centre. During the transfer he was seated in an immobilised wheelchair, but according to his submissions he had to hold on to the handrails for stability throughout the transfer. During the journey, the catheter which he had been using since his arrest broke and began to leak.", "18. Upon his arrival at the remand centre hospital, the applicant was placed alone in a cell measuring about 7.5 square metres with two double bunk beds. In the applicant ’ s submission, which was not contested by the Government, the cell walls and ceiling were dirty and the toilet was not separated from the rest of the cell.", "19. On 5 September 2003 the applicant was placed in another, cleaner cell where the toilet had been separated from the rest of the cell by a narrow partition. The applicant had to rely on the help of his fellow inmates, who heaved him onto the toilet so that he could change his incontinence pad and helped him to access the washbasin for daily hygiene. When taking a shower in the remand centre ’ s bathhouse, the applicant sat on a stool placed under the showerhead. He submitted that, on one occasion, he had fallen off the stool and had had to continue taking the shower while lying on the floor, unassisted by anyone.", "20. On an unspecified date in September 2003, the applicant noticed that he had developed a bedsore. On 11 September 2003 he was taken to the remand centre hospital ward in order to treat the bedsore. The bedsore was stitched up but, in the applicant ’ s submission, the stitches did not last a long time and the wound soon opened up again.", "21. From 15 September 2003 onwards the applicant was detained in a general wing of Warszawa-Mokotów Remand Centre.", "22. The Government submitted that the general wing of Warszawa-Mokotów Remand Centre had been adjusted to the needs of disabled persons. In particular, the remand centre was equipped with special lifts, wide doors and driveways for wheelchairs. All toilets were easily accessible to a person in a wheelchair.", "23. On several occasions the applicant was taken by prison bus to attend hearings in courts in Siedlce and Warsaw. During each of those transfers he was seated in his wheelchair.", "24. In December 2003 the applicant developed foot dermatomycosis. He was given an anti-mycosis cream. The applicant submitted that he had preferred to use the cream given to him by a fellow inmate.", "25. On 7 or 12 January 2004 the applicant was transferred by prison bus back to Siedlce Prison, where he was placed in a large cell designed to hold twelve detainees. It was a smoking cell and the applicant was one of only two non-smoking detainees. He was allocated one of the lowest -level bunk beds. He was assisted by his fellow inmates in caring for his daily hygiene, but was often forced to remain in a soaked incontinence pad, in particular during the night.", "26. The Government made a general submission in that respect, stating that Siedlce Prison had not been adapted to the special needs of disabled prisoners.", "27. The Government also submitted that, on an unspecified date, a neurosurgeon who had examined the applicant had insisted that the patient needed daily physiotherapy. A medical certificate dated 16 January 2004 stated that such therapy was not available in prison. On the same day the Deputy Governor of Siedlce Prison applied for the applicant ’ s release.", "28. On an unspecified date in April 2004 the applicant was transferred by prison bus to the hospital wing of Warszawa-Mokotów Remand Centre, where he underwent a short medical examination in order to assess the state of his health with a view to being granted another licence for temporary release. On the same day he was taken back to Siedlce Prison, again by prison bus.", "29. On 26 May 2004 the applicant was granted a further six months ’ temporary release. He was taken home from prison by his mother.", "30. A medical report issued on 27 May 2004 by the regional hospital in Siedlce confirmed the presence of a bedsore measuring 2 cm by 3 cm on the applicant ’ s buttock.", "31. From 15 November to 6 December 2004, the applicant received medicinal treatment and physiotherapy in the Siedlce Regional Specialist Hospital ( Wojewódzki Szpital Specjalistyczny ). The discharge certificate stated that the applicant ’ s overall health had been improved (“ wzmocnienie kondycji ogólnej ) and that he was to continue his physiotherapy under the hospital scheme, remain under medical supervision and undergo periodic rehabilitation therapy. The applicant also received the following recommendations from the hospital nurse: to change the catheter bag at least once every twenty-four hours; to rinse the urethra with an antiseptic solution after each change of catheter tube; to self-monitor the urethra; and to see a doctor in the event of inflammation.", "32. The applicant ’ s temporary release from prison was subsequently extended on 19 November 2004, and again on 14 February 2005 for another six-month period. The applicant failed to return to prison after the expiration of the latter period.", "B. The applicant ’ s detention after September 2005", "1. The applicant ’ s arrest", "33. On 6 June 2005 the Siedlce Regional Court refused to grant the applicant a further extension of the licence for temporary release. The applicant unsuccessfully appealed against that decision.", "34. On 2 September 2005 the applicant was arrested.", "2. First detention in Siedlce Prison from 2 September 2005 to 28 August 2006", "35. On 2 September 2005 the applicant was taken by police car to Siedlce Prison, which is a standard prison that has not been adapted for persons with disabilities.", "36. He was placed in the prison infirmary.", "37. He was not given any fresh incontinence pads or catheters and had to use the ones which he had taken with him at the time of his arrest.", "38. On 8 September 2005 the applicant was seen by a doctor for the first time since his arrest.", "39. The applicant submitted that he was then given an unspecified number of fresh incontinence pads, but no catheters. As revealed by the Ombudsman ’ s inquiry (see paragraph 96 below), the applicant was supplied with four pads every twenty-four hours. The applicant claimed that because he had been unable to change his catheters and pads often enough during his detention in Siedlce Prison, he had developed a skin rash in the genitals area. He had also had to ration his pads. In order to do so, he limited his food and drink intake at weekends and sometimes also on weekdays. The Government did not contest that submission.", "40. It appears that throughout his detention in Siedlce Prison, the applicant received regular supportive treatment ( leczenie zachowacze ) for the bedsore he had developed in 2003, which was considered a non-healing wound.", "41. On an unspecified date, the applicant was transferred from the infirmary cell.", "42. At first he was placed in a cell with smokers.", "43. The passageway to the toilet in that cell was too narrow for his wheelchair and he was unable to reach the washbasin without soliciting help from his cellmates.", "44. In this initial period of his detention in Siedlce Prison, the applicant did not have daily access to a shower room, which was situated on a different floor from his cell.", "45. The applicant submitted that that was either because no recommendation to that effect had been issued by the prison doctor or because nobody had been found to carry him up and down the stairs to the shower room. Eventually, the applicant had been allowed to take a shower on a daily basis and his fellow inmates, who he claimed were “alcoholics who could barely stand on their own feet”, had been designated to carry him up and down the stairs. During his “baths”, the applicant had been seated on an ordinary chair placed directly under the showerhead. No hand rails had been installed in the shower cabin. Those submissions were not contested by the Government.", "46. Towards the end of September 2005, the applicant was transferred to a cell measuring about 8 square metres. It appears that the cell was for both smoking and non-smoking prisoners.", "47. As submitted by the applicant and expressly acknowledged by the Government, the cell in question had been inadequately furnished and had not been adapted for special - needs prisoners. In particular, in order to reach his bunk, the applicant had had to heave himself up from his wheelchair onto his bed without the aid of any handles or special bars. Nor could he access the cell ’ s toilet annex because the passageway was too narrow.", "48. On 3 October 2005 the applicant asked the Siedlce Regional Court to grant him another period of temporary release.", "49. On 20 November 2005 the applicant fell painfully after an attempt to heave himself up from his wheelchair onto his prison bunk. An ambulance was called and the applicant was administered anaesthetics and sedatives. He claimed that he had continued to suffer back pains from the fall for a period of two weeks.", "50. The Government submitted, without providing any supporting documents, that on 25 November 2005 the head of healthcare at Siedlce Prison had stated that the applicant could receive adequate treatment in prison.", "51. On 19 December 2005 the Siedlce Regional Court ordered the applicant to undergo a medical examination in order to assess the state of his health with a view to granting him another licence for temporary release. The examination was carried out on 21 December 2005.", "52. The Government submitted that the medical examination had revealed that the applicant ’ s continued detention would not pose any danger to his health or life. The medical experts had also been of the opinion that the fact that the applicant had had trouble reaching the toilet had not caused him any inconvenience because he had been using incontinence pads and a catheter. No documents were presented to the Court in support of those submissions.", "53. On an unspecified date in January 2006, the applicant had a high fever and experienced problems urinating. On 15 January 2006 he was taken by ambulance to the regional hospital in Siedlce, where he was diagnosed with a massive infection of the urethra and the presence of the bacteria enterococcus faecalis.", "54. The applicant was not admitted to the civilian hospital but was offered admission to the Warszawa- Mokotów Remand Centre hospital instead. He refused, stating that his condition was serious enough to warrant his immediate hospitalisation in Siedlce and pointing out that the remand centre hospital did not have a urological ward. The regional hospital staff then gave the applicant anti-fever medication and a new catheter. They also carried out blood and urine tests, following which the applicant was taken back to Siedlce Prison by ambulance. On 19 January 2006 he was administered intravenous antibiotics and had another urine test. He continued to be treated on an outpatient basis until 26 January 2006.", "55. On 8 February 2006 the Siedlce Regional Court refused to grant the applicant a licence for temporary release (file no. III Kow 399/05). The court found, on the basis of medical opinions prepared by an expert traumatologist and a neurologist, that the applicant ’ s health had been stable and that he could receive adequate medical care in detention, provided that : (1) two to three times a year he underwent physiotherapy at the hospital; (2) he was free to do a range of rehabilitation exercises on his own and to move around in his wheelchair; (3) he had the opportunity to lie on his stomach for long periods; (4) he was administered the prescribed medicines; (5) his bedsore was regularly checked by a doctor, and if necessary, treated; (6) he was placed in a single-occupancy cell; and (7) he had unrestricted access to a shower. The court noted that the applicant had refused a transfer to undergo a medical examination in the hospital wing of the Warsaw -Mokotów Remand Centre and considered that his refusal had been unjustified.", "56. On 23 February 2006 the Siedlce District Court ( Sąd Rejonowy ) refused to suspend the applicant ’ s sentence ( odroczenie wykonania kary; zawieszenie postępowania wykonawczego ) (file nos. II K 11/00, II K 1070/02, II 1Ko 488/05). The court observed that two medical opinions prepared by an expert neurologist and an expert orthopaedist had confirmed that the applicant ’ s health problems could be properly treated in prison (see paragraph 55 above). The domestic court also took note of two other medical opinions (issued on unspecified dates) by experts in neurology and traumatology who had reached the conclusion that the applicant was not fit for detention for a period of at least one year, until his urological infection and his bedsore had been cured. These experts also stated that if the conditions of the applicant ’ s care and treatment enumerated in the preceding paragraph were not met, his life and health would be in danger.", "The domestic court concluded that Siedlce Prison had so far been able to provide the applicant with adequate conditions of detention. Consequently, the applicant ’ s request was not granted. An appeal lodged by the applicant with the Siedlce Regional Court was later dismissed on similar grounds.", "57. On 10 May 2006 the Lublin Court of Appeal dismissed an appeal lodged by the applicant against the Siedlce Regional Court ’ s ruling of 8 February 2006, adding to the reasoning invoked by the lower court the argument that the applicant belonged to the prison subculture as he had committed another crime while on temporary release from prison (file no. II AKzw 259/06).", "58. In the applicant ’ s own submission, on the night of 10 May 2006 he had attempted to commit suicide by slashing his left wrist, but had been rescued and had his veins stitched during the morning roll call. He did not provide any evidence in support of that submission.", "59. On 15 May 2006 ultrasound imaging revealed a blockage of the applicant ’ s urethra and calculi (stones) in his bladder ( złogi w pęcherzu moczowym ).", "60. On 22 May 2006 the applicant lodged a further request for temporary release with the Siedlce Regional Court. There is no information in the file as to the outcome of his request.", "61. On 2 June 2006 the applicant was examined by an expert urologist, who prescribed the surgical removal of his bladder stones and further urgent specialist treatment.", "62. On 21 June 2006 the Governor ( Dyrektor ) of Siedlce Prison asked the Łódź Regional Court to allow the applicant ’ s request for temporary release. The Governor relied on a medical report issued by the head of the Health Establishment ( Zakład Opieki Zdrowotnej ) at Siedlce Prison on 20 June 2006 and submitted that, despite the fact that the applicant had been doing some rehabilitation exercises on his own, muscular dystrophy, contractures in the hips and knees, and a general deterioration in his health had been observed. The applicant therefore required advanced physiotherapy, which could not be provided within the prison system. Although Łódź Prison would be prepared to offer the applicant basic physiotherapy, it could not do so before September 2006. It was also noted that after a number of recurring urological infections, the applicant required surgery for bladder stones. Moreover, according to the medical report, the applicant had developed a bedsore measuring 3 cm by 3 cm and his general state of health had been deteriorating. The report ’ s conclusion was that the applicant could not be properly treated in prison.", "63. On 2 August 2006 a medical certificate prepared by an expert orthopaedist confirmed that the applicant should undergo further physiotherapy. A medical report prepared on 16 August 2006 stated that it was possible for the applicant to remain in detention provided that he could also be treated in the urological ward of the regional hospital in Siedlce.", "3. First detention in Łódź Prison from 28 August to 30 or 31 October 2006", "64. On 28 August 2006 the applicant was transferred by prison bus to Łódź Prison, a modern detention facility adapted for the disabled. During the transfer he was seated in his wheelchair facing the front of the bus. In his submission, which was not contested by the Government, even though the wheelchair had been immobilised, the applicant himself had bounced around during the ride as he had had nothing to hold on to.", "65. In the Government ’ s submission, which was not contested by the applicant, his cell in the general wing had been adapted for special - needs prisoners. It had been spacious enough for a wheelchair and the toilet had been easily accessible. The applicant did not need the assistance of a third person at the material time but was, nevertheless, under the constant supervision of nurses and paramedics.", "66. The applicant was afforded basic physiotherapy. He was initially trained to use a Parapodium orthotic device, but his training was discontinued after he developed severe back pain, which had to be treated with an anaesthetic. He was also afforded supportive treatment for his bedsore in Łódź Prison and he remained under the constant supervision of the prison ’ s medical staff.", "A medical report issued on 5 October 2006 by a physiotherapist from Łódź Prison stated that the applicant ’ s ailments could be adequately treated within the prison system and that the surgery for his gallbladder stones would be scheduled once his bedsore had healed.", "67. On 23 October 2006 the Łódź Regional Court refused to agree to the Siedlce Prison Governor ’ s request to grant the applicant another licence for temporary release (file no. VI Kow 1499/06/Pr). The court observed that on 28 August 2006 the applicant had been transferred to Łódź Prison and held that he had been receiving adequate physiotherapy there. The court referred to the medical report issued on 5 October 2006 by Łódź Prison ’ s medical staff confirming that the applicant could be afforded adequate treatment in the prison system. The court also noted that the applicant had abused its trust by failing to return to prison on time after the previously granted period of temporary release.", "4. Second detention in Siedlce Prison from 30 or 31 October 2006 to 21 March 2007", "68. On 30 or 31 October 2006 the applicant was transferred back to Siedlce Prison by prison ambulance.", "69. On 28 November 2006 the applicant underwent a short medical examination in the hospital in Konstancin, after which he was taken back to Siedlce Prison by prison bus.", "70. On 29 November 2006 the Siedlce District Disability Evaluation Board ( Powiatowy Zespół do Spraw Orzekania o Niepełnosprawności ) declared the level of the applicant ’ s disability as “significant” ( znaczny ) and confirmed that he required the constant care of another person owing to his limited capacity to deal with his handicap.", "71. On 20 December 2006 the Łódź Court of Appeal dismissed an appeal lodged by the applicant against the Łódź Regional Court ’ s decision of 23 October 2006, finding the ruling to be justified (file no. II AKzw 872/06).", "72. On 1 March 2007 the applicant had an X-ray which revealed the presence of three large bladder stones measuring 2 to 3 cm.", "5. Detention in Warszwa-Mokotów Remand Centre from 21 March to 24 April 2007", "73. On 21 March 2007 the applicant was transferred by prison bus to the surgical ward of the Warszawa -Mokotów Remand Centre hospital. He was offered reconstructive surgery for his bedsore. The applicant refused for an unknown reason and continued to be administered only supportive treatment to the wound.", "74. The applicant was subsequently committed to the remand centre ’ s general wing and given further outpatient treatment for his bedsore. Several blood and urine tests were also performed.", "75. In the applicant ’ s submission, which was not contested by the Government, he had been supplied with two incontinence pads every twenty-four hours and with one single-use catheter every two to four weeks.", "As a result, the applicant considered it necessary to reduce his intake of food and fluids, and developed a rash in the genitals area. When he complained about the catheter problem, the remand centre doctor told him that all colleagues whom she had consulted were in agreement that catheters such as those used by the applicant were to be changed only every few weeks.", "76. The applicant claimed that the above-mentioned treatment had been intentional. It constituted a form of punishment for his written complaints about the authorities and staff of the remand centre and prisons in question. It was also meant to serve as a deterrent to other prisoners.", "6. Second detention in Łódź Prison from 24 April to 28 May 2007", "77. On 24 April 2007 the applicant was transferred to the urology ward of Łódź Prison hospital, where he was given laser treatment for his bedsore and afforded further medical care. On 30 April 2007 he had his bladder stones surgically removed. The applicant also had a special Foley catheter put in place.", "78. In between the medical procedures, the applicant was detained in the prison ’ s general wing, in a cell adapted for disabled prisoners in wheelchairs.", "79. According to a report of 28 May 2007, the applicant was discharged from the hospital in overall good health. It was recommended that his Foley catheter be changed every two weeks and that his bedsore be disinfected and treated in the prison infirmary.", "7. Third detention in Siedlce Prison from 28 May 2007 to 18 June 2008", "80. On 28 May 2007 the applicant was transferred back to Siedlce Prison by ambulance.", "81. On 19 June 2007 he was placed in a non-smoking cell.", "82. In order to access the toilet in that cell, he had to heave himself from his wheelchair onto a stool, and from the stool onto the toilet seat.", "83. On 27 June 2007 another request for temporary release from prison submitted by the applicant was dismissed by the Siedlce Regional Court (file no. III Kow 218/07/pr). The court observed that, according to the most recent medical reports available, the applicant could be properly treated within the prison system. It was further observed that the applicant had abused his previous release from prison by failing to return to prison after the expiry of the period granted. Lastly, the court pointed out that, despite having been confined to a wheelchair, the applicant had still managed to commit a theft.", "84. An appeal lodged by the applicant against the above ‑ mentioned decision was rejected by the President ( Prezes ) of the Siedlce Regional Court for being lodged out of time. On 30 October 2007 the Lublin Court of Appeal dismissed an interlocutory appeal lodged by the applicant against the rejection ruling (file no. II AKzw 759/07).", "85. On 15 October 2007 an expert neurologist prescribed a magnetic resonance imaging (MRI) test on the applicant ’ s spine.", "86. On 21 October 2007 the applicant had a high fever. An ambulance was called and he was administered anti-fever medication and a sedative.", "87. On 19 November 2007 the applicant experienced sudden pain in the spine. He was examined by the prison doctor and administered painkillers.", "88. On 2 January 2008 the applicant ’ s spine was examined by means of an MRI test in the regional hospital in Siedlce.", "89. On 10 January 2008 the applicant was taken by prison bus to the hospital in Konstancin, where a neuro-orthopaedic examination was performed and surgery of the spine was prescribed. The applicant was subsequently taken back to Siedlce Prison by prison bus.", "90. On 6 February 2008 the applicant was moved to wing IX of Siedlce Prison.", "91. He was later moved to wing IV and placed in a dirty cell with smokers, which in the applicant ’ s submission, had not been adapted to the needs of a disabled person. The Government did not contest that submission.", "8. The applicant ’ s release", "92. On 18 June 2008 the applicant was granted a licence for temporary release until 28 December 2008. The court considered that he required urgent surgery followed by physiotherapy. Following that date, the court extended the licence three more times – on 1 December 2008, 18 June 2009 and 7 December 2009 – in order to allow the applicant to undergo further operations and urological treatment. It was also held that the applicant ’ s behaviour outside the prison had been correct. The applicant ’ s temporary release from prison continued until 18 June 2010.", "93. On 19 June 2010 the Siedlce District Court, on the basis of an expert surgeons ’ opinion, suspended the applicant ’ s sentence until his health problems requiring surgery had been resolved (case no. II K 538/05, II 2 Ko 1250/10).", "94. Since his release, the applicant has been under medical treatment, including physiotherapy, and has periodically been admitted to hospital.", "C. The applicant ’ s actions concerning the conditions of his detention", "1. Complaints to the Ombudsman and the prison authorities", "95. On 12 May 2006 the applicant complained to the Ombudsman ( Rzecznik Praw Obywatelskich ) about the quality of the medical care afforded to him while in prison.", "96. On 10 October 2006 the Ombudsman informed the applicant of the results of his inquiries : during the applicant ’ s detention in Siedlce Prison, he had been entitled to take a daily bath and had been given four incontinence pads per day; and he had been examined many times by surgeons, orthopaedists and neurologists. The Ombudsman also made a concise summary of the medical care afforded to the applicant, in particular the physiotherapy in Łódź Prison, and concluded that it had been adequate for the applicant ’ s needs.", "97. Following a further complaint from the applicant lodged on 29 May 2007, on 27 September 2007 the Ombudsman asked the Regional Inspectorate of the Prison Service ( Okręgowy Inspektorat Służby Więziennej ) to provide him with details concerning the conditions of the applicant ’ s detention.", "98. On 9 November 2007 the Inspectorate informed the Ombudsman that, according to the information in its possession, from the beginning of his detention in Siedlce Prison on 2 September 2005, the applicant had been provided with adequate medical care. The Inspectorate observed that the applicant had continued to suffer from an old bedsore, which had been slow to heal, but that he had had the dressing changed every day. The Inspectorate further observed that the applicant had once refused to have his bedsore removed by surgery. It pointed out that the applicant had had his bladder stones surgically removed and that, in the course of his detention, he had been treated many times on an outpatient basis. Lastly, the Inspectorate explained that Siedlce Prison had been built in 1844 and acknowledged that its cells had not been adapted to the needs of disabled detainees or to the use of wheelchairs. Any conversion or modification of the prison buildings would require the prior authorisation of the Regional Inspector of Historic Monuments ( Wojewódzki Konserwator Zabytków ). The Inspectorate did not indicate whether any request to that end had been submitted.", "2. Criminal proceedings against the authorities of Siedlce Prison (file nos. 1 Ds 1261/06 and II Kp 481/06)", "99. On 29 June 2006 the Siedlce district prosecutor refused to investigate the issue of the conditions of the applicant ’ s medical care in detention. The prosecutor held that the medical care afforded to the applicant had been adequate and that the applicant himself had at times refused to undergo the surgery offered to him. The prosecutor also observed that the Siedlce Prison authorities had requested the applicant ’ s transfer to Łódź Prison in order that he could receive physiotherapy.", "100. An appeal lodged by the applicant against that decision was dismissed by the Siedlce District Court on 11 December 2006. The court restated the prosecutor ’ s arguments and observed that in the meantime the applicant had been transferred to Łódź Prison, where he had been given specialist rehabilitation treatment.", "D. Relevant domestic law and practice", "101. The relevant provisions of domestic law and practice concerning medical care and conditions of detention in prisons and remand centres are set out in the Court ’ s judgments handed down in the cases of Kaprykowski v. Poland ( no. 23052/05, §§ 36-39, 3 February 2009 ); Sławomir Musiał v. Poland ( no. 28300/06, §§ 48-61, 20 January 2009 ); and Orchowski v. Poland ( no. 17885/04, §§ 75-85, 13 October 2009 ). More recent developments are described in the Court ’ s decision in the case of Łatak v. Poland ( dec. no. 52070/08, §§ 25-54, 12 October 2010 ).", "102. As for the rules on detaining persons with disabilities, Article 96 of the Code of Enforcement of Criminal Sentences (“the Code”) establishes a “therapeutic regime” under which convicted persons with mental or physical disabilities who require specialist treatment, in particular psychological or medical care, or rehabilitation, can serve their prison sentences.", "103. Furthermore, Article 97 § 1 of the Code provides that, with regard to prisoners serving their penalty under a therapeutic regime, the authorities should be guided, inter alia, by the need to prepare those prisoners for a self-sufficient life. Paragraph 2 provides that the execution of the prison sentence must be adapted to the prisoner ’ s needs in terms of medical treatment, hygiene and sanitation. Lastly, paragraph 3 provides that convicted persons who no longer require specialist treatment should be transferred to another appropriate prison regime.", "104. On the basis of Article 249 of the Code, on 25 August 2003 the Minister of Justice issued the Ordinance on the code of practice for the organisation and arrangement of pre ‑ trial detention ( Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu organizacyjno - porządkowego wykonywania tymczasowego aresztowania ) (“the 2003 Ordinance on Pre-Trial Detention”) and the Ordinance on the code of practice for the organisation and arrangement of imprisonment ( Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu organizacyjno ‑ porządkowego wykonywania kary pozbawienia wolności ) (“the 2003 Ordinance on Imprisonment”). Both ordinances entered into force on 1 September 2003.", "105. The 2003 Ordinance on Pre ‑ Trial Detention and the 2003 Ordinance on Imprisonment both state that pre ‑ trial detention and detention after conviction must take place in remand centres and prisons respectively. However, both ordinances provide for exceptions to the standard regime of detention.", "106. Paragraph 28 of the 2003 Ordinance on Pre ‑ Trial Detention and paragraph 26 of the 2003 Ordinance on Imprisonment provide that the governor of a remand centre or a prison may, at the request of or after consultation with a doctor, make necessary exceptions to the arrangements for pre ‑ trial detention or imprisonment as laid down in the relevant code of practice, in so far as this is justified by the state of health of the detainee concerned. The provisions apply to detainees with a physical disability.", "107. The detention of disabled persons is not regulated any further by Polish domestic law.", "E. International law and practice", "Recommendation Rec(2006)2 of the Committee of Ministers to Member States on the European Prison Rules (adopted on 11 January 2006)", "108. The Recommendation reads as follows:", "“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,", "Having regard to the European Convention on Human Rights and the case law of the European Court of Human Rights;", "...", "Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society;", "...", "Recommends that governments of member states:", "- be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules;", "...”", "Appendix to Recommendation Rec(2006)2", "“ Basic principles", "1. All persons deprived of their liberty shall be treated with respect for their human rights.", "2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.", "3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.", "...", "39. Prison authorities shall safeguard the health of all prisoners in their care.", "...", "40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.", "...", "41.1 Every prison shall have the services of at least one qualified general medical practitioner.", "41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency.", "41.3 Where prisons do not have a full-time medical practitioner, a part-time medical practitioner shall visit regularly.", "41.4 Every prison shall have personnel suitably trained in health care.", "...", "43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed.", "43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff.", "43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner ’ s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement.", "44. The medical practitioner or other competent authority shall regularly inspect, collect information by other means if appropriate, and advise the director upon:", "... b. the hygiene and cleanliness of the institution and prisoners; c. the sanitation, heating, lighting and ventilation of the institution; andd. the suitability and cleanliness of the prisoners ’ clothing and bedding.", "45.1 The director shall consider the reports and advice that the medical practitioner or other competent authority submits according to Rules 43 and 44 and, when in agreement with the recommendations made, shall take immediate steps to implement them.", "45.2 If the recommendations of the medical practitioner are not within the director ’ s competence or if the director does not agree with them, the director shall immediately submit the advice of the medical practitioner and a personal report to higher authority.", "Health care provision", "46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison.", "46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment.", "... ”" ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "109. The applicant complained that, contrary to Article 3 of the Convention, the care and conditions of his detention from 7 January 2001 to 28 February 2001, from 1 September 2003 to 26 May 2004 and from 2 September 2005 to 18 June 2008 had been incompatible with his special needs, in view of his paraplegia. That provision reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. Government ’ s preliminary objections", "110. The Government raised two preliminary objections, arguing that the applicant had not exhausted the domestic remedies available to him and that the part of his application which concerned his detention before September 2005 was inadmissible for non-compliance with the six-month rule within the meaning of Article 35 § 1 of the Convention.", "(a) Exhaustion of domestic remedies", "(i ) The Government", "111. The Government acknowledged that before lodging an application with the Court, the applicant had lodged a number of complaints with various State authorities about the quality of medical care provided to him in prison. They argued, however, that the applicant should also have brought a related civil action seeking compensation for the infringement of his personal rights, namely his dignity and health, under Articles 23 and 24 of the Civil Code, read in conjunction with Article 448 of that Code.", "112. Referring to the Court ’ s inadmissibility decisions in the cases of Łatak v. Poland (dec., no. 52070/08, 12 October 2010 ), and Nocha v. Poland (dec., no. 21116/09, 27 September 2011 ), the Government noted that after the applicant ’ s release from prison on 18 June 2008 – when the situation giving rise to the alleged breach of Article 3 of the Convention had no longer existed – the above - mentioned civil action would have constituted an effective remedy so long as it had been lodged within the three -year statute of limitation.", "113. Consequently, the Government invited the Court to reject the application for non ‑ exhaustion of domestic remedies, pursuant to Article 35 § 1 of the Convention.", "(ii ) The applicant", "114. The applicant did not comment on the Government ’ s preliminary objection.", "( iii ) The Court", "115. The rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness.", "In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement.", "In addition, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see, among other authorities, Akdivar and Others v. Turkey, cited above, §§ 66-69; Orchowski, cited above, §§ 105-106; and Norbert Sikorski, cited above, § 110).", "116. The Court observes that, in principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Orchowski, cited above, § 109, and Demopoulos and Others v. Turkey [GC], (dec.) no. 46113/99, ECHR 2010-..., § 87). However, as the Court has held on many occasions, that rule is subject to exceptions which may be justified by the particular circumstances of each case (see Demopoulos and Others, ibid., with further references). Among such exceptions there are certainly situations where, following a pilot judgment on the merits in which the Court has found a systemic violation of the Convention, the respondent State makes available a remedy to redress at domestic level grievances of similarly situated persons (see Demopoulos and Others, cited above, §§ 87-88; Broniowski v. Poland (merits) [GC], no. 31443/96, §§ 191 ‑ 93, ECHR 2004-V; and Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, §§ 25 ‑ 26 and 33 ‑ 44, 23 September 2010).", "117. Two pilot judgments on the merits concerning the issue of the living conditions in Polish detention facilities were adopted on 13 October 2009 in the cases of Orchowski (cited above) and Norbert Sikorski ( Norbert Sikorski v. Poland, no. 17599/05, 2 2 October 2009 ). The Court held in these judgments that overcrowding in Polish detention facilities had been, at the relevant time, of a structural nature what undermined the effectiveness of any domestic remedies available, making them theoretical and illusory and incapable of providing redress in respect of the applicant ’ s complaint ( ibid. § 111). The Court, nevertheless, indicated that where the alleged violation no longer continued and could not, therefore, be eliminated with retrospective effect, the only means of redress was pecuniary compensation. In such situations, regard being had to the principle of subsidiarity, it could not be excluded that applicants who complained of degrading treatment because of the conditions of their detention, might be required to first avail themselves of the civil action relied on by the Government (ibid. § 109 ).", "118. More recently, in its inadmissibility decisions in the cases of Łatak (cited above) and Nocha (cited above), which were relied on by the Government, the Court has expressly confirmed that in the subsequent applications concerning conditions of detention filed with the Court which have not yet been declared admissible it is appropriate to assess the adequacy of the remedy relied on by the Government in the light of the current situation, namely at the time of the Court ’ s examination of the case.", "In so doing, the Court had regard to the fact that, on the date of the adoption of its decision in the Łatak case, there were 271 cases pending before it where the applicants had raised complaints that were similar in substance, alleging a violation of Article 3 because at various times and for various periods they had been adversely affected by the same structural problem, having been detained in overcrowded, insanitary cells ( see Łatak, cited above, § 84 ).", "119. Having found that a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could be considered an “effective remedy” for the purposes of Article 35 § 1 of the Convention as from 17 March 2010, and having regard to the three ‑ year limitation period for bringing such an action, the Court held that essentially in all cases in which, in June 2008, the alleged violation had either been remedied by placing the applicant in Convention-compliant conditions or had ended ipso facto because the applicant had been released, the applicants concerned were required to bring a civil action for the infringement of their personal rights and for compensation (ibid. § 85 ).", "120. The Court affirms that in the specific context of applications following the Orchowski pilot judgment and arising from the problem of overcrowding in Polish prisons and remand centres, considered by the Court to have been of a structural nature from 2000 until at least mid-2008 (see Orchowski, cited above, § 147), an applicant who lodged his application with the Court at the time when a civil action under Article 24 taken in conjunction with Article 448 of the Civil Code could not be considered an “effective remedy” for the purpose of Article 35 of the Convention, that is prior to 17 March 2010 (see Łatak, cited above, § 85 and paragraph 118 above), cannot, in principle, be required to avail himself of this remedy if, at the time when the Court was deciding his case, the civil action in question is time ‑ barred (see Grzywaczewski v. Poland, no. 18364/06, § 66, 31 May 2012; Musiałek and Baczyński v. Poland, no. 32798/02, §§ 113 -14, 2 6 July 2011; and Mirosław Zieliński v. Poland, no. 3390/05, § 46, 20 September 2011; and, conversely, Nocha inadmissibility decision, cited above and Pustelnik v. Poland (dec.), no. 37775/09, 23 October 2012 ).", "121. In addition, the Court has also ruled on the merits in two cases against Poland in which the applicants were prisoners diagnosed with serious health disorders who, like the applicant in the instant case, complained that the inadequate medical care combined with prison overcrowding and poor living conditions had caused them pain and suffering during their detention (see Grzywaczewski, cited above, and Musiałek, cited above, § 111 ‑ 12). It was held in those judgments that only a remedy capable of redressing the applicant ’ s complaint in its entirety, and not merely its selected aspects, could realistically redress his situation (see Grzywaczewski, cited above, § § 63-69, and Musiałek, cited above, § 111 ‑ 12; compare with Sławomir Musiał v. Poland, no. 28300/06, § 80, 20 January 2009 ).", "122. Against this background, the Court will address the preliminary objection in the present case as formulated by the Government and will examine whether the applicant, in addition to the remedies he had used, should have also availed himself of the civil remedy in question before lodging his application with the Court, or at a later stage.", "123. It must be observed at the outset that the Article 3 complaint in the present case is twofold. The applicant, who is a paraplegic confined to a wheelchair and suffering from serious malfunctions of the urethral and annals sphincters, complained that the medical and nursing care which had been provided to him during his detention had been inadequate. In parallel, he complained about overcrowding and the resultant poor living and sanitary conditions in prison, which failed in particular to meet the standard required for persons in his state of health. The applicant claimed that this situation had caused him pain and suffering during his detention.", "124. The applicant was deprived of liberty on three separate occasions, namely from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004 and from 2 September 2005 to 18 June 2008 (see paragraphs 8-11, 15 ‑ 29 and 33-68 above). He lodged his application with the Court on 20 September 2007, having already spent two years serving the third period of his detention, and nearly a year before he was eventually released.", "125. It follows that the facts of his case differ in two important details from the facts of the application which was relied on by the Government in support of their non-exhaustion objection (see Nocha, cited above).", "In the Nocha case, the applicant, an epileptic detainee, based his Article 3 complaint not only on the allegation that the overall detention conditions and the inadequate treatment of his illness had caused him suffering during his detention, but also on his assertion that those factors had resulted in material and long-lasting damage to his health. The Court considered that it was neither mandated nor in a position to obtain and examine evidence necessary to rule on the existence of a causal link between the applicant ’ s treatment in prison and his state of health after his release. In addition, it was also significant that the applicant had lodged his application with the Court in early 2009, seven months after his detention had begun and less than three months after it ended. Most importantly, at the time when the case was being decided by the Court, the applicant had still had time to bring a civil action under Article 23, taken in conjunction with Article 417 or Article 448 of the Civil Code, in order to seek compensation for the alleged violation. In those particular circumstances, the Court considered that the civil-law remedies indeed appeared suitable in the applicant ’ s case (see Nocha, cited above).", "126. Conversely, the Court considers that the conclusion which it reached in its pilot judgments in the cases of Orchowski and Norbert Sikorski (see paragraph 117 above) that the structural nature of overcrowding undermined the effectiveness of any domestic remedy available at that time, equally applies to the present case in so far as it concerns the applicant ’ s detention, which lasted intermittently from January 2001 until June 2008, especially given that the Government and the prison authorities explicitly acknowledged the existence and systemic nature of the problem of overcrowding in Polish detention facilities at the relevant time ( see, Orchowski, cited above, § 146 and Norbert Sikorski, cited above, § 148).", "127. It must be stressed that the applicant in the present case lodged a number of complaints with the prison authorities, the Ombudsman and the prosecutor in connection with the conditions of his imprisonment and the medical care provided. He also applied many times to be released from prison on health grounds (see paragraphs 32, 35, 42, 43, 44, 47, 49, 52, 56, 61 and 83 ‑ 88 above). The Court considers that by taking those actions, the applicant had sufficiently drawn the attention of the prison authorities to the question of the compatibility of his living conditions and medical care in prison with the state of his health.", "128. Lastly, in the present case, the situation giving rise to the alleged violation of Article 3 ended on 18 June 2008 when the applicant was released from Siedlce Prison. The Court considers that, since the relevant civil action under Articles 24 and 448 of the Civil Code by which, as the Government claimed, the applicant could seek compensation for the infringement of his personal rights, including his dignity and health, is barred by a three-year statute of limitation, the applicant cannot presently be required to avail himself of that remedy ( see paragraph 120 above with further references ).", "129. Accordingly, the Court dismisses the Government ’ s preliminary objection of non-exhaustion of domestic remedies.", "(b) Non- compliance with the six-month rule", "(i) The Government", "130. The Government also submitted that the applicant had been detained on three separate occasions, with long periods in between which he had spent at liberty (from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004, and 2 September 2005 to 18 June 2008). The conditions of his detention should not, therefore, be treated as a continuous situation.", "131. Consequently, the Government asked the Court to consider as inadmissible the part of the application relating to the first and second periods of the applicant ’ s detention (from 7 January to 28 February 2001 and 1 September 2003 to 26 May 2004) as it was lodged out of time, and to reject it in accordance with Article 35 §§ 1 and 4 of the Convention.", "(ii ) The applicant", "132. The applicant did not comment on the Government ’ s preliminary objection.", "(iii ) The Court", "133. The Court reiterates that the object of the six ‑ month time-limit under Article 35 is to promote legal certainty by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. In cases where there is a continuing situation, the six-month period runs from the cessation of the situation. The concept of a “ continuing situation ” refers to a state of affairs which operates by continuous activities or omissions by or on the part of the State to render the applicant a victim. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see I.D. v. Moldova, no. 47203/06, § 27, 30 November 2010, and Koval v. Ukraine, no. 65550/01, (dec.) 30 March 2004, with further references).", "134. The present case concerns the detention which was imposed on the applicant on identifiable dates : from 7 January to 28 February 2001, 1 September 2003 to 26 May 2004 and 2 September 2005 to 18 June 2008. It follows that the applicant ’ s detention cannot be construed as a “continuing situation” (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § § 71-79, 10 January 2012 and G.R. v. the United Kingdom (dec.), no. 24860/94, 30 November 1994).", "Having regard to the date on which the present application was lodged, namely 20 September 2007, the complaint in so far as it refers to the events during the first and the second periods of the applicant ’ s detention was lodged more than six months after the alleged breach took place and must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention, and can be taken into consideration only as factual background to the case (see Kulikowski v. Poland (no. 2), no. 16831/07, § 55, 9 October 2012 ).", "2. Conclusion on admissibility", "135. The Court notes that the complaint, in so far as it relates to the third period of the applicant ’ s detention (from 2 September 2005 to 18 June 2008) is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "136. The applicant complained that the care and conditions which had been afforded to him during the three terms of his detention had been incompatible with his special needs, in view of his paraplegia, serious malfunctions of the urethral and anal sphincters, and other ailments.", "In connection with his detention from 2 September 2005 to 18 June 2008, the applicant submitted that: the prison facilities had not been adapted to the use of a wheelchair, which had resulted in constant problems with accessing and using the toilet annex in his cell; he had not received a sufficient supply of incontinence pads and catheters, nor any worthwhile and regular physiotherapy adapted to his disability; and he had developed serious health problems, such as bedsores, repeated inflammations of the urethra, acute bacterial infections, and bladder stones. He also alleged that those problems had not met with an adequate medical response and that he had been detained in generally deplorable material conditions. In particular, his cells had been overcrowded and dirty and he had had to share them with smokers. Lastly, the applicant complained that, despite his disability and frail health, he had been regularly transported between prisons and hospitals by prison bus, without being properly fastened to his seat, and only rarely by ambulance.", "(b) The Government", "137. The Government refrained from taking a position in respect of the merits of the application.", "(c) The third -party interveners", "138. The written comments submitted on 2 July 2012 jointly by the Helsinki Foundation for Human Rights ( Helsińska Fundacja Praw Człowieka ) (“the Foundation”), the European Disability Forum and the International Disability Alliance contain an extensive overview of the domestic law and practice concerning the detention of persons with disabilities and of the international standards for the protection of the rights of the disabled, in particular the standards of “accessibility” and “reasonable accommodation”.", "139. The third -party interveners argued that in Poland, prisoners with disabilities were notoriously subjected to greater distress and hardship than those which arose in the natural course of imprisonment. It was common that prisoners with disabilities had serious difficulties in accessing basic facilities, such as toilets and showers. They were also unable to move around the premises of their detention facilities without the aid of third persons. Lastly, the medical care within the prison system, in particular, physiotherapy, if provided to disabled prisoners at all, was of such a low standard that it often failed to prevent the further deterioration of prisoners ’ health or to relieve their pain and mental suffering.", "140. It was concluded that in Poland, the treatment of prisoners with disabilities failed to meet the basic international standards and raised a serious issue under Article 3 of the Convention. In the view of the third -party interveners, the source of the problem did not lie so much in inadequate legal regulations as in the lack of budgetary resources and political will to implement the law, as well as in the general constraints of the prison infrastructure.", "2. The Court ’ s assessment", "141. A summary of the general principles concerning the examination of medical care and conditions of detention under Article 3 may be found in the Court ’ s recent judgments in Sławomir Musiał v. Poland (no. 28300/06, §§ 85 ‑ 88, ECHR 2009-...(extracts)) and Orchowski (cited above, §§ 119 ‑ 229).", "142. The present case raises the issue of the compatibility of the applicant ’ s state of health with the conditions of his detention in Siedlce and Łódź Prisons and in the Warsaw -Mokotów Remand Centre between 2 September 2005 and 18 June 2008, and the adequacy of the medical care provided to him during that period. The Court must also decide whether the applicant ’ s situation attained the required minimum level of severity to fall within the ambit of Article 3 of the Convention.", "143. The applicant ’ s medical condition is undisputed. He is a paraplegic who is confined to a wheelchair and suffers from serious malfunctions of the urethral and anal sphincters (see paragraph 6 above).", "144. It is also clear that for a total of over eighteen months, the applicant was detained in Siedlce Prison, which is a regular detention facility not adapted for persons in wheelchairs (see paragraphs 35 and 98 above). The only time when it could not be disputed that the material conditions of the applicant ’ s detention complied with his special needs was during his three months ’ detention in Łódź Prison (see paragraph 64 above).", "145. The Court observes that a variety of conditions in Siedlce Prison interfered with the applicant ’ s ability to be independent, at least in some of his daily routines, placing him in a position of absolute dependence on his fellow inmates and causing him both mental and physical suffering.", "146. It is clear that no special arrangements were made to alleviate the hardships of the applicant ’ s detention in that facility. His complaints included the inappropriate sanitary conditions, especially for a person in his state of health, the inaccessibility of the toilet and shower room, the hazardous access to his bunk bed, and his periodic exposure to cigarette smoke (see paragraphs 42-47 above).", "147. For an unspecified period after his placement in Siedlce Prison, the applicant, who suffers from incontinence, was not authorised to have daily baths or showers (see paragraphs 44 and 4 5 above), although some time later an authorisation to that effect was issued. That adjustment, however, had adverse consequences because the shower room was situated on a different floor from the applicant ’ s cell and he could access it only if carried up and down the stairs by his fellow inmates (see paragraph 45 above). Whether because of their personal characteristics, as described by the applicant (see paragraph 4 5 above) or simply, because they were not trained to care for people with disabilities, the applicant ’ s cellmates did not provide him with suitable and sufficient assistance. The Court has already criticised schemes whereby a prisoner with a physical disability is provided routine assistance by his fellow inmates, and considered that that must have given rise to considerable anxiety on the applicant ’ s part and placed him in a position of inferiority vis-à-vis the other prisoners (see, among many other authorities, Farbtuhs v. Latvia, no. 4672/02, § 60, 2 December 2004).", "148. The Court also takes note of the fact that the shower cabin was not equipped with any hand rails which the applicant could hold on to in order to lift himself up or make other necessary movements (see paragraph 45 above).", "149. Moreover, the cells in which the applicant was placed during his entire detention in Siedlce Prison had not been adapted for special - needs prisoners (see paragraphs 35, 47 and 91 above).", "150. As the passageway was too narrow for his wheelchair, the applicant, who needed to change his incontinence pads and catheters regularly, could not access the toilet annex to his cell without asking for help from his cellmates (see paragraphs 43, 4 7 and 82 above).", "151. The applicant also had to undertake a dangerous manoeuvre in order to access his bunk, heaving himself up from his wheelchair. On one such occasion in November 2 005, he fell painfully and an ambulance had to be called (see paragraphs 47 and 49 above).", "152. It is even more striking, that the applicant was detained in these conditions contrary to the doctors ’ explicit recommendations that he be placed in a single-occupancy cell, have unrestricted access to a shower, the opportunity to do a range of rehabilitation exercises on his own, and the ability to move around in his wheelchair and lie on his stomach for long periods ( see paragraph 55 above ). As to the former requirement, the Court notes that the applicant was detained in multi-occupancy cells, although it is not clear whether the cells were overcrowded, as claimed by the applicant in general terms. It is not contested, however, that the cells (with the exception of Łódź Prison) were too small or cramped for a detainee in a wheelchair (see paragraphs 35, 43, 47, 49, 82 and 91 above) or that the applicant did not have unrestricted access to a shower (see paragraphs 44 and 45 above).", "153. Moreover, it is clear, in the light of the facts described above, that the existence of ordinary architectural or technical barriers in Siedlce Prison greatly affected the applicant and caused him physical and psychological pain and suffering (see Arutyunyan v. Russia, no. 48977/09, § § 77 and 81, 10 January 2012, and Cara-Damiani v. Italy, no. 2447/05, § 70, 7 February 2012 ).", "154. Lastly, it cannot be overlooked that during the first and a part of the third period of his detention in Siedlce Prison, the applicant had to share cells with smokers (see paragraphs 42, 46 and 91 above).", "155. The Court has already held that detaining persons suffering from a serious physical disability in conditions inappropriate to their state of health, or leaving such persons in the hands of their cellmates for help with relieving themselves, bathing and getting dressed or undressed, amounted to degrading treatment (see Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001 ‑ VII; Engel v. Hungary, no. 46857/06, §§ 27-30, 20 May 2010; and Vincent v. France, no. 6253/03, §§ 94-103, 24 October 2006).", "156. The applicant also submitted in the wider context of his living conditions that he had not received a sufficient supply of incontinence pads and catheters (or drainage bags), which had resulted in a further deterioration of his health and new ailments, such as bedsores, repeated inflammations of the urethra and acute bacterial infections.", "157. The Court observes that the facts of the case reveal that out of the two years and ten months of his detention, the applicant was placed in a special infirmary or hospital cell, or was otherwise under the supervision and care of a nurse, for only an unspecified but very short period of time in Siedlce Prison (see paragraph 36 and 41 above) and for a total of three months during both of his stays in Łódź Prison (see paragraphs 64, 65, 77 and 78 above).", "158. It is most important in the Court ’ s view, however, that throughout his detention, the applicant was supplied with a limited number of incontinence pads (either two or four every twenty-four hours) and catheters or drainage bags (see paragraphs 37, 39 and 75 above), and that at times he was not supplied with those items at all. It is obvious that the applicant, who is completely incontinent, was heavily reliant on those articles and achieved nothing by complaining to the medical staff and the authorities.", "159. It was not established that the health problems which the applicant had started developing some months into his detention were a direct result of poor hygiene and the infrequent changing of his catheters. However, the Court finds it significant that the applicant who regularly complained of an insufficient supply of pads and catheters and a rash in the genitals area, had to receive emergency treatment on 15 January 2006 for a massive infection of the urethra and the presence of faecal bacteria (see paragraphs 53 above).", "160. Moreover, the Court notes that the applicant ’ s statements about the conditions of his transport by prison bus were not refuted by the Government (see paragraphs 64 and 73 above). The Court finds particularly regrettable the practice of leaving the applicant unfastened in a moving vehicle, even if his wheelchair was immobilised, as happened on 28 August 2006 (see Engel v. Hungary, no. 46857/06, § 28, 20 May 2010 ).", "161. Lastly, in so far as the present Article 3 complaint concerns the applicant ’ s general fitness for detention and the adequacy of the medical care offered to him between 2 September 2005 and 18 June 2008 the Court makes the following observations.", "162. The applicant submitted that he had not been offered worthwhile and regular physiotherapy adapted to his disability and adequate medical treatment of his bladder stones and other, successively developing, ailments.", "163. The case file reveals that at the relevant time, the applicant was examined by various medical specialists on many occasions, either in relation to his requests for release or when he was taken to hospital with urgent health problems (see paragraphs 38, 49, 50, 52, 53, 55, 59, 61, 62, 63, 66, 67, 69, 72, 74, 86, 87 and 96 above).", "164. During his previous term of detention – in 2003 – the applicant developed a bedsore measuring 2 by 3 cm (see paragraphs 20 and 30 above), which was causing increased problems in the period which is the subject of the Court ’ s examination (see paragraph 62 above). This medical condition had been considered incurable and therefore, the treatment offered to the applicant in Siedlce and later, in Łódź Prison, was only of a supportive nature and providing only for superficial relief ( see paragraphs 40 and 66 above).", "In March 2007, however, the applicant had an opportunity to undergo reconstructive surgery for his bedsore at the hospital of Warszawa-Mokotów Remand Centre but he did not agree for the procedure. In view of the lack of the applicant ’ s consent the authorities continued with supportive treatment to the wound ( see paragraph 73 above). It appears from the case file that the dressing was changed every day and the wound was kept clean (see paragraph 98 above).", "165. Eventually, on 24 April 2007 a laser procedure was performed on the bedsore at the hospital of Łódź Prison (see paragraph 77 above).", "166. In the meantime, for the whole month of January 2006 the applicant received an intravenous antibiotic treatment for his urinary infection (see paragraph 53 and 54 above).", "167. On 15 May 2006 he was diagnosed for the first time with blockage of the urethra and gallbladder stones (see paragraph 59 above). On 2 June 2006 he was prescribed surgery to remove the bladder stones and further urgent urological treatment (see paragraph 61 above). It was indicated, however, that surgery could not be performed before the bedsore had healed (see the report of 5 October 2006, paragraph 66 above). The actual surgery took place on 30 April 2007, that is, as late as eleven months after it had been prescribed but only six days after the applicant became eventually fit for it because of his bedsore condition (see paragraph 77 above).", "168. Lastly, in October 2007 the applicant was diagnosed for the first time with an unspecified spinal disorder, for which surgery was prescribed in January 2008 (see paragraphs 83, 85, 86 and 87 above).", "169. It was in relation to this medical condition that, on 18 June 2008 the domestic court decided that the applicant should be granted a licence for temporary release in order to undergo surgery and subsequent rehabilitation, as well as further urological treatment (see paragraph 92 above).", "170. It is true that prior to that date, the domestic courts had repeatedly rejected the applicant ’ s requests for release on health grounds, holding that he had been fit for detention because adequate care and treatment could and indeed had been offered to him within the prison system (decisions of 8 and 23 February 2006, 10 May 2006 and 27 June 2007 (see paragraphs 55 ‑ 57 and 83 above)).", "171. The Court, however, cannot on the basis of the case materials, contest these conclusions of the domestic courts because it is clear that in reaching their initial decisions, they had regard to the opinions of the medical experts that the applicant had not been fit to be detained as long as his urological infection and bedsore had not been cured (see paragraph 56 above) but preferred the reports of other medical experts and the remaining evidence (see paragraphs 56, 57, 83 above).", "172. When, in June 2006, it became clear that the applicant ’ s general health had been deteriorating, that his bedsore had reached a diameter of 3 cm and that he had been unable to obtain advanced physiotherapy in prison (see paragraphs 62 and 63 above), the authorities took measures to transfer the applicant to Łódź Prison, which was equipped for prisoners with disabilities. The applicant received round-the-clock care from nurses and paramedics, and some treatment for his bedsore and some basic physiotherapy in that establishment (see paragraphs 65 and 66 above).", "173. On 23 October 2006 the Łódź Regional Court rejected a request for the applicant ’ s release, which had been made four months earlier by the governor of Siedlce Prison, on the ground that adequate treatment was being provided to the applicant in Łódź Prison (see paragraph 67 above).", "174. It is true that, when, on 20 December 2006, the Łódź Court of Appeal upheld the above decision, the applicant ’ s treatment had already ceased because he had been transferred back to Siedlce Prison (see paragraph 68 above). The available medical reports, however, do not imply that at that point the applicant faced major health risks. Moreover, it cannot be overlooked that, in the meantime, the authorities went to some lengths to provide the applicant with treatment for his developing ailments. On 28 November 2006 he even had a short medical check-up in the hospital in Konstancin (see paragraph 69).", "175. In view of the above, the Court does not consider that it is in a position to establish whether or not the development of the applicant ’ s multiple ailments could have been arrested or slowed down had he been at liberty and free to seek medical care with the professionals of his choice. It is apparent in this case, however, that the applicant ’ s condition was regularly monitored by various specialists and that the authorities followed up the doctors ’ recommendations about the medical treatment of the applicant ’ s successively developing disorders to the greatest extent possible. In the absence of any medical certificates in support of the applicant ’ s claim that medical care secured to him in prison, had been inadequate or insufficient, the Court cannot reach the conclusion that in this context the authorities had acted in a way contrary to the requirements of the Convention.", "176. Mindful of all the above considerations, the Court finds that while keeping the detention measure in place was not, in itself, incompatible with the applicant ’ s state of health, detaining him for eighteen months in a prison that was unsuitable for the incarceration of persons with physical disabilities and not making sufficient efforts to reasonably accommodate his special needs raises a serious issue under the Convention.", "177. There is no evidence in this case of any positive intention to humiliate or debase the applicant. The Court holds, nevertheless, that to detain a person who is confined to a wheelchair and suffering from paraplegia and serious malfunctions of the urethral and anal sphincters in conditions where he does not have an unlimited and continuous supply of incontinence pads and catheters and unrestricted access to a shower, where he is left in the hands of his cellmates for the necessary assistance, and where he is unable to keep clean without the greatest of difficulty, reaches the threshold of severity required under Article 3 of the Convention and constitutes degrading and inhuman treatment contrary to that provision. The Court therefore finds a violation of this provision in the present case.", "II. ALLEDGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ILL-TREATMENT BY A PRISON GUARD", "178. The applicant also complained under Article 3 of the Convention that, on an unspecified date, he had been beaten up by a prison guard in Siedlce Prison.", "179. However, pursuant to Article 35 of the Convention:", "“ ...", "3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:", "(a) the application is ... manifestly ill-founded ...", "4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”", "180. The applicant failed to provide any details or any prima facie evidence to substantiate the above complaint.", "It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "181. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "182. The applicant claimed 2 3, 6 00 euros (EUR) in respect of pecuniary damage on account of overdue child support fees, lost income, unpaid rent and medical expenses. He also claimed 50,000 EUR in respect of non ‑ pecuniary damage.", "183. The Government submitted that the above claim in respect of pecuniary damage should be rejected as entirely irrelevant to the circumstances of the case. They also contested the applicant ’ s claim in respect of non-pecuniary damage as exorbitant.", "184. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court considers that the applicant suffered damage of a non-pecuniary nature as a result of his detention in inhuman and degrading conditions, inappropriate to his state of health (see paragraphs 173 and 174 above), which is not sufficiently redressed by the finding of a violation of his rights under the Convention.", "185. For the above-mentioned reasons, having regard to the specific circumstances of the present case and its case-law in similar cases (see, mutatis mutandis, Kupczak v. Poland, no. 2627/09, § 83, 25 January 2011, and Sławomir Musiał v. Poland, no. 28300/06, § § 111-12, 20 January 2009 ) and deciding on an equitable basis, the Court awards EUR 8 ,000 under this head, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "186. The applicant claimed no costs and expenses, either for the Convention proceedings or for the proceedings before the domestic courts.", "C. Default interest", "187. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Facts submitted at the time of the application", "5. The applicant, who was born in 1972, is serving a thirty-year prison sentence imposed on 31 May 2007 by the Meurthe - et - Moselle Assize Court for murder, attempted murder and assault involving the use or threatened use of a weapon. He has been imprisoned since 17 May 2002 and will become eligible for release on 18 July 2027.", "6. On 18 March 2006, while he was in prison in Nancy, the applicant fell several metres during an attempted escape and suffered a fractured spine. He spent several months at the Fresnes rehabilitation clinic before being transferred to Mulhouse Prison, where he encountered substantial difficulties ( particularly on account of the staircases, which made it impossible for him to move about unaided ), and Metz Prison, where his cell was not equipped for wheelchair use. He was subsequently transferred back to Fresnes from 5 November 2008 until 28 May 2009. From that date until 17 September 2014 he was held in Uzerche Prison, before being transferred to Poitiers-Vivonne Prison, where he is currently detained.", "7. On 12 August 2010 the applicant applied to the Tulle judge responsible for the execution of sentences to have his sentence suspended on medical grounds, under Article 720-1-1 of the Code of Criminal Procedure ( see paragraph 27 below ). He explained that as a wheelchair user with paraplegia, he was not being detained in appropriate conditions since the premises were not designed for wheelchair use, and he was unable to receive the care he required. He noted that access to the toilet in his cell was undignified, that he could not reach all parts of the prison premises unaided, and that the provision of medical and paramedical care was inadequate, particularly as regards physiotherapy. He pointed out that he was unable to go to the showers autonomously and that the prison had assigned a prisoner to assist him for a payment of fifty euros per month. This prison orderly was responsible for cleaning the applicant ’ s cell and accompanying him to the showers and washroom.", "8. In an order of 27 September 2010 the judge appointed two doctors as experts. They submitted their reports on 2 and 14 November 2010.", "9. The report by Dr G., drawn up on 21 October 2010, concluded :", "“... Mr Mohammed Helhal has incomplete paraplegia with total effective urinary incontinence requiring self-catheterisation and round-the-clock use of a nappy. He also has major haemorrhoidal irregularities, for which he has refused any treatment.", "Mr Mohammed Helhal currently has active muscle relaxation in the two lower limbs, for which physiotherapy is required several times a week on a regular, long-term basis.", "That being so, Mr Mohammed Helhal ’ s state of health is not incompatible with imprisonment, subject to the express condition of being detained in a facility catering for his disability, where he can undergo regular physiotherapy and have appropriate access to a gym. ”", "10. The report by Dr R. was drawn up on 28 October 2010 and read as follows:", "“... On 17 November 2009 ... Dr Dubois stated : ... ‘ his condition requires treatment by a physiotherapist in a specialist environment and daily pressure - sore relief ’. ...", "The most recent assessment at Bordeaux University Hospital, where the patient stayed from 5 to 12 March 2010, confirms that there has been a good sensorimotor recovery in the lower limbs and that mobility is possible with two walking sticks and a frame, whereas at present the patient mainly moves about in a wheelchair.", "Appropriate physiotherapy focusing on both the joints and the muscles would clearly enable the prisoner to perform his own transfers with technical support, which would also have the benefit of easing the complications at the pressure points. At the same time, alongside the favourable progress in this post-traumatic condition, the patient has an anal disorder as a result of haemorrhoid surgery, and this essentially causes discomfort on a functional level.", "Conclusion", "...", "- The prisoner displays sensorimotor damage resulting from a thoracolumbar spine fracture;", "- The damage is stable with clear evidence of motor recovery in the lower limbs;", "- Daily physiotherapy would be justified to improve motor skills in the lower limbs and the quality of transfers, but this is not possible at Uzerche Prison as there is no on-site physiotherapist;", "- There is permanent sensory damage in the L5-S1 region requiring self-catheterisation, which is being adequately managed on a day-to-day basis by the prisoner;", "- All of these spinal conditions are currently stable and unlikely to worsen, but could improve with proper treatment;", "- The various disorders observed, in terms of both traumatic spinal cord injuries and anal damage, are not life-endangering for the prisoner;", "- The prisoner ’ s state of health is in my opinion not incompatible in the long term with continued detention;", "- The disorders currently observed are stable and will continue to develop on a chronic basis, justifying palliative care. ”", "11. In a judgment of 3 February 2011 the Limoges Post-Sentencing Court dismissed the application for suspension of the applicant ’ s sentence. It took into account the two concurring medical opinions in finding that the applicant ’ s state of health was compatible in the long term with his imprisonment. However, the court observed that “ Uzerche Prison manifestly fails to satisfy the criteria for ensuring a suitable detention regime for the applicant, in terms of both the premises and the availability of paramedical care, despite the undisputed efforts by the prison ’ s management and staff to ease the prisoner ’ s living conditions as far as possible”. It then noted that there were custodial facilities that were equipped to cater for the applicant ’ s condition, such as Fresnes Prison or Roanne Prison, “ which is designed and organised in a manner compatible with accommodating disabled prisoners, and where [he] will be able to have the regular physiotherapy sessions that he rightly demands, since a masseur /physiotherapist comes to the prison almost every day”. The court concluded as follows:", "“ It therefore appears from all of the above considerations, both from a medical perspective and in terms of the prospect of arranging suitable conditions of detention, that the prisoner does not satisfy the requirements for having his sentence suspended on medical grounds.”", "12. The applicant appealed against the judgment of 3 February 2011. He reiterated that besides the structural inadequacy of Uzerche Prison, he had not been offered any special arrangements in terms of medical and paramedical care ( physiotherapy and access to the gym). He also submitted that Roanne Prison was no more suitable than Uzerche Prison as it did not have a rehabilitation facility.", "13. In a judgment of 3 May 2011 the Post-Sentencing Division of the Limoges Court of Appeal upheld the judgment of 3 February, holding:", "“ The two experts concurred in concluding that [the applicant ’ s] condition was not incompatible in the long term with detention provided that he was given physiotherapy and access to a gym. While it is indeed not possible for these requirements to be fulfilled at Uzerche Prison, where [ the applicant ] has been transferred at his own request to be closer to his family, it has not been shown that he cannot be accommodated in conditions catering for his disorders at Roanne Prison, and therefore the criteria for suspending the execution of his sentence have not been satisfied, particularly since [ the applicant ] continues to deny – as stated in his letter of 23 March 2011 – the serious criminal acts that led to his conviction .”", "14. The applicant appealed on points of law. In a judgment of 31 August 2011 the Court of Cassation declared the appeal inadmissible.", "15. In a letter of 28 February 2012 to the Registry of the Court, the applicant contended that he was not undergoing any physical rehabilitation, there being no physiotherapist at Uzerche Prison, and that he had no access to the gym. He wrote that his health was deteriorating on a daily basis and that he was being mistreated through the lack of provision of care.", "B. Facts brought to the Court ’ s attention in the parties ’ observations of 10 April and 14 June 2013 and the Government ’ s additional observations of 24 July 2013", "1. Provision of care", "16. According to the Government, the applicant has received the following medical assistance :", "( a) twelve occasions of escorted leave between 3 May 2011 and 26 June 2012 for specialist consultations and medical imaging tests at Tulle Hospital and Limoges University Hospital;", "( b) thirty-three medical appointments with a doctor from the prison medical unit, consisting of a medical examination on 28 May 2009 followed by consultations spread across his time at the prison ( ten in 2009, three in 2010, ten in 2011, six in 2012, one in 2013);", "( c) three stays in hospital for several days in 2010, 2011 and 2012;", "( d) technical assistance from nurses on fifty-five occasions between 2009 and 2013, plus weekly meetings with the prison nurse;", "( e) eight psychiatric consultations and sixteen meetings with a psychiatric nurse;", "( f) provision of medical equipment to alleviate or offset disabilities, including a walking frame ( June 2009), an anti- pressure-sore cushion ( August 2009), spectacles ( January 2010), a new wheelchair (September 2012), and an electrostimulation device ( February 2013).", "17. In addition to the treatment described above, the Government informed the Court that from September 2012 the applicant had attended physiotherapy sessions at Uzerche Prison. The physiotherapist ’ s services had been engaged following three letters dated 18 November 2011, 28 December 2011 and 19 March 2012 in which the interregional director of the Prison Service had alerted the Director General of the Limousin Regional Health Agency to the detrimental effects of the lack of physiotherapy on the care provided to prisoners.", "18. The Government added that the applicant had been offered the opportunity to attend yoga classes but had been removed from the list of those enrolled for the classes because of his non- attendance.", "19. The applicant confirmed the occasions of escorted leave mentioned by the Government but pointed out that on each occasion he had been transferred by ambulance – with his wrists and ankles handcuffed – and had had to undergo a full body search beforehand and a rub-down search afterwards. He added that the full body searches carried out whenever he received visits and when he was escorted outside the prison were deeply humiliating; he was obliged to have his nappy inspected, and in order to proceed more quickly, several warders carried out this task together. During one inspection, a senior warder had said in front of everyone that “the boss had given instructions to inspect his nappy”. The applicant maintained that as a result of these practices, he had asked his sister to visit him less frequently.", "20. With regard to the applicant ’ s complaints about the instances of escorted leave and the body searches, the Government pointed out that the physical damage he had suffered could not be regarded as having eradicated any security risk, since his health had no bearing on his potential connections on the outside and the risk of his escaping. To that end, they produced copies of two decisions dated 2011 (month illegible) and June 2012 ordering individual ( full body ) searches in connection with escorted leave for medical reasons. They noted that in May 2013 the applicant had been sent to a punishment cell for ten days following an assault on a fellow prisoner and the discovery of a mobile telephone in his cell. They stated that searches in the prison were not carried out systematically but on the basis of incidents noted during visits or in the cells. They produced three decisions ordering individual searches, dated 14 May and 26 December 2011 and 10 May 2013 ( involving searches of the applicant ’ s cell), and seven decisions ordering a one-off search of a specific sector of the prison after the visits received on 10 June 2011, 10 November 2011, 26 June 2012, 1 October 2012, 14 December 2012, 22 March 2013 and 31 May 2013.", "21. With regard to physiotherapy, the applicant pointed out that he had only started receiving it in September 2012 and that it was limited to a weekly fifteen-minute session. He produced a medical certificate issued on 10 May 2013 by a doctor from the Outpatient Consultation and Treatment Unit ( unité de consultation et de soins ambulatoires – “the UCSA”) stating that his “ condition requires daily rehabilitation, which Uzerche Prison is unable to provide, both on account of the lack of qualified staff and because the premises are not suitably equipped. As a result, the patient cannot remain in this facility without his health suffering. He must be given the possibility of admission to a specialised facility.” The applicant submitted that the doctor was repeating what his colleagues had already noted on 17 November 2009 ( see paragraph 10 above ) and 11 March 2011; he produced a medical certificate signed on the latter date by a doctor from the UCSA who stated that the applicant could not remain in the facility without his health suffering and added that “his paraplegia must be treated in a rehabilitation centre ”.", "22. With regard to the electrostimulation device, the applicant submitted that his doctor had obtained the funds needed to purchase it but that the prison authorities had not allowed him to do so. As to the possibility of attending yoga classes, the applicant pointed out that he had been urged to go no more than once a week in order to avoid “monopolising” the lift leading to where the classes were held.", "23. The applicant again stressed that he was dependent on the prison orderly responsible for assisting him in his everyday activities. The prisoner currently “ assigned ” to that duty was the third since his admission to the prison, and the applicant was dependent on him for supplying incontinence products, accompanying him to the showers ( there was a step preventing unassisted wheelchair access ) and cleaning his cell. This level of dependency and the problems associated with his incontinence complicated his relationship with the orderly. Going to the shower was a stressful time because the structure did not shield him from the view of others and his incontinence exposed him to extremely humiliating situations, causing irritation or even hostility on the part of his fellow inmates, who were unwilling to put up with such inconvenience in the course of their personal hygiene activities.", "24. Lastly, the applicant informed the Court that he had been temporarily transferred to a cell in the secure unit, further to a decision by the classification board, after a mobile phone had been found in his cell. Under the resulting regime, he had access to one hour ’ s exercise in the morning and one hour in the afternoon, despite the fact that a doctor had issued a certificate on 7 June 2013 stating that his condition required access to at least five hours ’ exercise a day. The Government stated that the applicant had been transferred back to his cell on 26 June 2013.", "2. Prospect of a transfer to Roanne Prison", "25. The applicant submitted that although the prison management had indeed encouraged him to request a transfer to Roanne Prison, their approach had been guided by purely administrative considerations unconnected to his care -related needs. The management had refused to give the slightest undertaking about the conditions in which he would be accommodated in Roanne and the care he could be given there. They had been unable to provide any guarantees as to care arrangements as there were six cells for disabled prisoners at that facility and they were all occupied, and a single physiotherapist came to the prison for four half-days a week to provide services for five hundred prisoners. The applicant contended that he had not applied for a transfer on the grounds that the prison in question did not offer appropriate care facilities and would simply have represented a further upheaval and ordeal for him following his repeated moves from one prison to another ( twelve transfers between 2002 and 2009). He referred to information obtained from International Prison Watch ( Observatoire international des prisons – OIP) by his sister and his lawyer and produced a copy of an email sent by OIP to his lawyer on 3 January 2011, reading as follows:", "“ I do not think that Meaux and Roanne are particularly well equipped although, like all recent establishments, they do have disabled cells. I attach a decision in which the Douai Court of Appeal found, in relation to another wheelchair user, that ‘ no custodial facility is equipped to cater for the applicant ’ s condition ’ and accordingly suspended the execution of his sentence. ... Nevertheless, I consider it important to stress the consequences of a change of prison, not only in terms of family ties but also as regards the procedure for requesting a suspension of the sentence, since that procedure would then have to be started over again. ...”", "The applicant emphasised in any event that the medical unit at Uzerche Prison had not recommended his transfer to Roanne but rather the provision of treatment in a specialist facility.", "26. The Government submitted that the applicant ’ s transfer to Roanne Prison had been envisaged by the health-care professionals at Uzerche Prison but observed that he had never actually requested such a transfer; after mentioning a transfer request, he had indicated the following day ( 9 August 2011 ) that he did not intend to pursue it, for reasons that were unclear. The Government also produced a note drawn up on 12 June 2012, which in their submission suggested that “ the applicant ’ s main motivation related to the previous decisions of the judicial authorities on requests for suspension of sentences, rather than to the treatment he might receive ”. They rejected the applicant ’ s arguments about the inability of Roanne Prison to accommodate him and submitted, in their additional observations, that only three of the six cells reserved for people with reduced mobility were occupied. They produced a copy of an email sent by the Prison Service in July 2013 indicating the availability of such cells. They also pointed out that an agreement had been signed in June 2013 between Roanne Prison, the UCSA and a non-governmental organisation with a view to providing appropriate care for dependent prisoners with specialist professional assistance." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Suspension of the execution of a sentence on medical grounds", "27. Article 720-1-1 of the Code of Criminal Procedure was worded as follows at the material time:", "“Unless there is a serious risk of reoffending, suspension may also be ordered, regardless of the nature of the sentence or the portion remaining to be served, and for a duration that does not need to be determined, where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital.", "The suspension may only be ordered if two separate medical opinions concur in finding that the prisoner is in one of the situations set out in the previous paragraph. However, in an emergency where the prisoner ’ s life is at risk, the suspension may be ordered on the basis of a medical certificate issued by the doctor in charge of the medical unit treating the prisoner, or a doctor standing in for him or her ... ”", "Law no. 2014-896 of 15 August 2014 on adapting sentences to the individual and increasing the effectiveness of criminal penalties, which came into force on 1 October 2014, has amended the system for suspending the execution of sentences. In the case of convicted prisoners, it has, among other things, abolished the requirement for a second medical opinion. Paragraph 2 of Article 720-1-1 of the Code of Criminal Procedure now provides that “ [ t]he suspension may only be ordered if a medical opinion establishes that the prisoner is in one of the situations set out in the previous paragraph ”. In the same paragraph, “where the prisoner ’ s life is at risk” has been removed as a requirement in the event of an emergency.", "28. Examining the provision in question, the Court of Cassation specified in a judgment of 28 September 2005 ( Criminal Division, 05-81.010) that the convicted prisoner ’ s condition necessarily required a poor short-term prognosis. In a judgment of 7 January 2009 (Criminal Division, 08-83364) the Court of Cassation held that in rejecting an application by a disabled prisoner for the suspension of his sentence, the Post-Sentencing Division of the Amiens Court of Appeal had not justified its decision on the basis of Article 720-1-1 of the Code of Criminal Procedure since it had not determined, as the applicant ’ s submissions had invited it to do, whether the two expert opinions indicated that the actual conditions of his detention were incompatible in the long term with his state of health. Lastly, in a decision of 26 June 2013 ( Criminal Division, 12 - 88284) the Court of Cassation refused to refer a question relating to Article 720-1-1 of the Code of Criminal Procedure to the Constitutional Council for a preliminary ruling on constitutionality. The question concerned the alleged interference with the ordinary courts ’ duty to protect personal liberty in so far as they were bound by the medical experts ’ two concurring opinions; the fact that the measure could be granted only if there was no serious risk of reoffending; and the lack of clarity of the provision in terms of respect for human dignity. The Criminal Division found that the question raised had no serious merit, for the following reasons :", "“... firstly, ... the person concerned has been deprived of his liberty for the purpose of serving a sentence deemed necessary by the judicial authority, a suspension of the sentence on medical grounds being an exceptional measure, and secondly, ... even where two expert opinions concur in finding that the prisoner is not in one of the situations provided for in Article 720-1-1 [ of the Code of Criminal Procedure ], it is reasonable to envisage that the court dealing with an application for suspension of a sentence would be competent either to order a further opinion or to determine whether the continued detention of the person concerned would amount to inhuman or degrading treatment, for example because it would be incompatible with the guarantees to which he is entitled for the protection of his health.”", "29. In his annual activity report for 2012 the Inspector General of Detention Facilities ( contrôleur général des lieux de privation de liberté – CGLPL) included a chapter on “ old age, invalidity and disability in prison ”, in which he noted that people in these categories were excluded by the very nature of prison architecture and the organisation of everyday prison life. He explained that cells for prisoners with reduced mobility were often located on the ground floor, which was normally set aside for prisoners under the “closed doors” regime; this was not conducive to any communication. The daily routine was a further source of anxiety : “ fear of being confronted with violence, fear of a primarily young population, fear of going to the exercise yard. Boredom too, since an occupational activity is no longer accessible to them and the activities available are unsuited to their physical condition. And finally, the humiliation of being dependent. Although many facilities have signed agreements with associations providing personal assistance, there are still too many prisons where the duties of ‘ attendant ’ or domestic help are performed by other prisoners employed by the prison management – the ‘ prison orderlies ’; this situation is unacceptable on account of the risks of blackmail and the lack of appropriate training and remuneration .”", "The CGLPL advocated a rethink of the architecture and living arrangements at detention facilities, but emphasised that consideration should be given to allowing these types of prisoners to serve their sentences in a non-custodial environment. He also recommended that “ the suspension of sentences on medical grounds be better adapted to the reality of the situations it may cover”. Among the targets of his criticism in that respect were the restrictive conditions laid down in Article 720-1-1 of the Code of Criminal Procedure, by which the execution of a sentence could be suspended only in extremely serious cases and as a short-term measure. He added : “ It must be noted that the experts assigned to assess whether the prisoner ’ s health is compatible with continued detention do not take sufficient account of the physical conditions of incarceration, quite simply because they are entirely unaware of the constraints it entails ”. He recommended that Parliament amend Article 720-1-1 “ to introduce a third possible criterion besides the risk to life and the long-term incompatibility of the prisoner ’ s health with detention, namely granting a request for suspension of a sentence where the treatment required by the prisoner cannot be provided either in detention or even during periods of ordinary or escorted prison leave, because of its repetitive and regular nature ”.", "30. On 20 November 2013 the Justice/Health Interministerial Working Group submitted a report to the Ministers of Justice and Health on “ Adjustments of sentence and suspensions of sentence on medical grounds ”, which recommended, among other things, extending the scope of the suspension of sentences on medical grounds by giving greater consideration to disabilities in the examination of such applications : “ The working group agrees on the need to specify in the practical guide that the suspension of a sentence on medical grounds is applicable to individuals whose disability is incompatible in the long term with detention and that due regard should be had in this assessment to the actual conditions of ordinary detention ( reference is made to the case-law of the European Court of Human Rights and the Court of Cassation). It is recommended that the experts be provided with all possible means in order to determine whether the prisoner ’ s health is compatible with the conditions of ordinary detention. While some members of the group wanted to include a specific reference to disability in the text of Article 720-1-1 of the Code of Criminal Procedure, others are of the view that disability can already be taken into account under the existing provisions.”", "B. Relevant provisions on health care", "31. Reference is made to the judgments in Mouisel v. France ( no. 67263/01, § 26, ECHR 2002 - IX) and Rivière v. France (no. 33834/03, § 29, 11 July 2006) for the provisions governing health care in prison. It should be noted that health care for prisoners has been the responsibility of the public hospital service since the Law of 18 January 1994 came into force. Outside appointments and emergency and short-term hospital admissions take place at the hospital to which the UCSA – an internal unit of the hospital based in the detention facility – is attached. Any treatment that is unavailable at the UCSA is provided either at the local hospital or in one of the eight secure interregional hospital units ( unités hospitalières sécurisées interrégionales – UHSI) or the National Public Health Institution in Fresnes (EPSNF). The UHSIs are responsible for providing medical and surgical treatment for detainees referred by UCSA medical personnel for stays of more than forty-eight hours. The EPSNF has medical, aftercare and rehabilitation departments and admits prisoners whose health requires an extended hospital stay or major therapy ( see Guide du prisonnier (Prisoner ’ s handbook), OIP, 2012, section on “ La médecine générale ” ). In its 2014 annual report the Court of Audit included a chapter entitled “ Detainees ’ health: further progress still essential”, in which it outlined the arrangements for admitting detainees to hospital and noted, among other things, the “ poor take-up of somatic hospital capacity ”, and especially the under -occupation of the UHSIs. The report also mentions “ an approach to health care that is all too often dependent on the operation of the prison system ”, and concludes that “ in addition to the rigidity and constraints of the prison environment, the available treatment is still inadequate, the need for more modern premises and equipment is not satisfied and the forms of cooperation between the parties concerned are fragile and incomplete ”. Furthermore, it calls for “ the development of a stronger and clearer public ‑ health policy ” through the assistance of regional health agencies, which “ assess and identify detainees ’ health-care needs. They define and regulate the provision of health care in a prison environment.”", "32. Article D. 82 of the Code of Criminal Procedure provides that prisoners can be transferred either at the request of the governor of the prison where they are serving their sentence or at their own request. A Prison Service circular of 21 February 2012 on the assignment of detainees to custodial facilities specifies the procedure for applying for a transfer. Article D. 360 of the same Code deals with transfers of prisoners to a facility better equipped to cater for their condition. Article R. 57-8-6 of the Code concerns the rights of prisoners with disabilities. The two last-mentioned provisions are worded as follows:", "Article D. 360", "“ A transfer to a more appropriate custodial facility may be requested, in accordance with the fourth paragraph of Article D. 382, for detainees whose physical conditions of detention in the facility where they are being held are not suited to their medical condition, and for prisoners requiring special medical care.", "The regional director shall order any transfer within his or her region, subject to the conditions laid down in Article D. 301, with the aim of enabling a sick prisoner to receive treatment in more favourable conditions.", "In the case of remand prisoners, the judge dealing with the investigation must have given his or her prior consent to the transfer, after being informed of the likely duration of the treatment envisaged.”", "Article R. 57-8-6 ( introduced by Decree no. 2010-1634 of 23 December 2010 )", "“ Any detainees who are prevented on a long-term basis, as a result of functional limitations of the upper limbs in connection with a physical disability, from independently performing actions linked to treatment prescribed by a doctor may designate another person, including a fellow detainee, to help him or her carry out these actions during periods when professional care staff are absent. The person thus designated must give express consent. ...", "The head of the facility may oppose the designation of a particular helper for reasons relating, for example, to personal safety or the preservation of order within the facility.” [ See also the methodological guide to health care for persons detained by the judicial authorities, Ministry of Justice and Ministry of Social Affairs and Health, 2012, p. 90]", "C. Report on the CGLPL ’ s visit to Uzerche Prison ( October 2010)", "33. The CGLPL published a detailed report following his visit to Uzerche Prison, an institution opened in 1990; only some parts of the report are relevant to the present case. It does not specifically mention problems linked to the situation for people with disabilities. With regard to the more general question of personal hygiene, the CGLPL observed that “no particular difficulties for prisoners have been noted. The showers are permanently accessible for prisoners under the ‘ open doors ’ regime, and once a day for prisoners under the ‘ closed doors ’ regime in B building.” He noted that the exercise yards were similar in all the wings of the prison, comprising a yard, two or three concrete benches, a concrete table-tennis table and an area for playing boules. They had “ Turkish” (squat) toilets, which were inaccessible for prisoners with certain types of disability. In buildings C and D, there had for a long time been unrestricted access to the exercise yard, and prisoners had been able to come and go as they pleased. This was no longer the case. Set opening times had been introduced, and prisoners were required to enter the yard at the start of the time slot and leave at the end, with no other option : from 9 to 11 a.m., 2 to 4 p.m. and 4 to 5.30 p.m. The report also noted that “no physiotherapists have visited the prison since the retirement in 2009 of the person who previously performed this service. Several prisoners have complained about this. ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "34. The applicant complained that he had been subjected to treatment in breach of Article 3 of the Convention on account of the inaccessibility of health care while in detention. The provision relied on by the applicant reads :", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "35. The Government requested that the application be rejected as manifestly ill-founded.", "36. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "37. The applicant submitted firstly that the conditions of his imprisonment undermined his dignity, and drew attention in that connection to the position taken by the judge responsible for the execution of sentences and the Post-Sentencing Division and challenged by the Government, to the effect that his continued detention was conditional on the availability of premises catering for his disability and the accessibility of appropriate treatment. The Government ’ s position was all the more unacceptable as the courts in question had merely examined the most immediately visible aspects of his situation, namely the configuration of the premises and the treatment available to detainees. Referring to the reports by the CGLPL and the Justice/Health Interministerial Working Group mentioned in paragraphs 29 and 30 above, he submitted that the competent authorities ’ assessment of dignity was limited to the question of the provision of care rather than covering practical living conditions. However, his state of complete dependence on the prison orderly, the conditions in which he took a shower, the security measures imposed on him whenever he was escorted outside the prison and the full body searches all amounted to repeated humiliation undermining his personality. All these measures had been found to be inhuman and degrading by the Court ( the applicant cited Vincent v. France, no. 6253/03, 24 October 2006; Khider v. France, no. 39364/05, 9 July 2009; and Duval v. France, no. 19868/08, 26 May 2011), and the same conclusion had to be reached in his case, in view of the cumulative effect of the ill-treatment and his disability, as well as the complete lack of justification for the security measures imposed on him.", "38. Regarding the quality of care provided, the applicant observed that the Government had acknowledged that no physiotherapy sessions had been available until 2012 and had provided no details as to their frequency after that time. He asserted that the treatment provided was derisory ( see paragraph 21 above ), even though the experts and doctors had repeatedly stressed the consequences of failure to provide suitable treatment for his condition. A transfer to Roanne Prison would not guarantee him any better treatment. The cells set aside there for prisoners with reduced mobility were all taken by severely disabled prisoners. The applicant also noted that one prisoner in a wheelchair had committed suicide in that prison in November 2012, and that in any event the doctors had recommended that he be admitted to a specialist facility for his rehabilitation.", "39. As to whether his continued detention was appropriate, the applicant complained that Article 720-1-1 of the Code of Criminal Procedure had been read in a restrictive manner that conflated dignified conditions of detention with sufficiency of treatment. Furthermore, the Court of Appeal had based its findings on a ground not provided for by the Article in question for refusing a request for suspension of execution of a sentence, namely failure to acknowledge the offence. Relying on Gülay Çetin v. Turkey (no. 44084/10, 5 March 2013), he emphasised that there were no clear provisions of domestic law that required consideration to be given to personal capacity to cope with detention regardless of the quality of treatment needed, or that allowed situations infringing human dignity to carry on indefinitely. The intensity of the ordeal inflicted on a person with disabilities amounted to disregarding the purposes of the sentence, instead turning it into pure retribution and an indiscriminate punishment. The UCSAs ’ task was in no way to remove their patients from the reality of their existence but rather to provide diagnosis and treatment.", "40. The Government justified the applicant ’ s continued detention in the light of judgments such as Matencio v. France (no. 58749/00, 15 January 2004) and Vincent ( cited above ), given that it had not been established that he was suffering from a lack of autonomy. They drew attention to the two expert medical opinions finding that his state of health was compatible with detention, provided that he was detained in appropriate conditions.", "41. As far as those conditions were concerned, the Government observed that the applicant was held in a cell equipped for people with reduced mobility, where it was possible to move about in a wheelchair. The cell was on the ground floor, thus facilitating access to the exercise yard and the socio-educational area. Stair-free access to the UCSA, the canteens, the visiting rooms and the registry was also possible.", "42. The Government stated that the applicant was assisted in his daily activities by a prison orderly. In their additional observations they noted that the prison did not have individual showers, but that there was unrestricted access to the showers. Without indicating the location of the showers or the frequency with which the applicant was able to use them, they submitted that he could choose a time, subject to a maximum of thirteen prisoners per day; furthermore, each shower had a partition so as to ensure privacy.", "43. The Government also emphasised the consideration given to the applicant ’ s well-being through access to a physical activity, namely yoga classes. They acknowledged that the sports area was not wheelchair accessible but pointed out that it was possible for the applicant to reach the area using crutches or his walking frame and that in any event he had never gone there.", "44. The Government submitted in conclusion that the management had taken every step to reconcile the applicant ’ s disability as far as possible with the imperatives of detention, by enabling him to be as autonomous as possible and ensuring his well-being through cultural and physical activities.", "45. The Government contended that the measures taken when the applicant was escorted outside the prison had been justified ( see paragraph 20 above ) in view of the offences of which he had been convicted, his sentence and his attempted escape; the security arrangements were regularly adjusted and reviewed. The body searches were also appropriate in view of the circumstances and could not be considered unjustified simply because of the applicant ’ s condition.", "46. With regard to the treatment provided to the applicant, the Government stated that the prison service had provided him with all the facilities required for his disability, including an anti-pressure- sore cushion for the visiting room, an anti-pressure-sore mattress in his cell and a plastic chair for use while taking a shower. They also detailed all the occasions when the applicant had been admitted to hospital or escorted outside the prison ( see paragraph 16 above ), and the steps taken to ensure that a physiotherapist came to Uzerche Prison from September 2012 ( see paragraph 17 above ), submitting in conclusion that the conditions of his detention in relation to his state of health could not be deemed to amount to treatment in breach of Article 3 of the Convention.", "2. The Court ’ s assessment", "(a) General principles", "( i ) Duty of care", "47. The Court refers to its settled case-law to the effect that the duty of care towards sick prisoners imposes the following specific obligations on the State : to verify that prisoners are fit to serve their sentence, to provide them with the necessary medical treatment and, where appropriate, to adapt the general conditions of detention to their particular state of health. These obligations are set out very clearly in Xiros v. Greece ( no. 1 033/07, § 73, 9 September 2010; for a more recent authority, see Ürfi Çetinkaya v. Turkey, no. 1 9866/04, §§ 87 - 92, 23 July 2013) and may be summarised as follows.", "48. With regard to the first obligation, in a State founded on the rule of law fitness for detention is the prerequisite for pursuing the execution of a sentence. Although this cannot be construed as a general obligation to release detainees or transfer them to a civil hospital, even if they are suffering from an illness which is particularly difficult to treat, the Court cannot rule out the possibility that in particularly serious cases situations may arise where the proper administration of criminal justice requires remedies in the form of humanitarian measures. Accordingly, in exceptional cases where the state of a detainee ’ s health is absolutely incompatible with his or her detention, Article 3 may require the release of that person under certain conditions ( see Xiros, cited above, § 74).", "As regards the second obligation, the lack of appropriate medical care may in principle amount to treatment contrary to Article 3. The Court requires, firstly, the provision of relevant medical support for sick detainees and appropriate medical treatment for their specific ailments. The promptness and frequency with which medical care is provided to such prisoners are two factors to be taken into account in assessing whether they are being treated in a manner compatible with the requirements of Article 3. In particular, these two factors are not assessed by the Court in absolute terms, but with due regard for the prisoner ’ s particular state of health in each case. In general, the worsening of the prisoner ’ s health does not in itself play a decisive role as regards observance of Article 3 of the Convention. The Court examines in each case whether the deterioration of the prisoner ’ s health was attributable to inadequacies in the medical care provided ( ibid., § 75).", "As regards the third obligation, the Court requires the prison environment to be adapted, where necessary, to the prisoner ’ s specific needs so that he or she can serve the sentence in conditions that do not undermine his or her psychological well-being ( ibid., § 76).", "( ii ) Prisoners with disabilities", "49. Severe physical disability, like health and age, is a circumstance giving rise to the question of fitness for detention in the light of Article 3 of the Convention ( see Mouisel v. France, no. 6 7263/01, § 38, ECHR 2002 - IX, and Matencio, cited above, § 76 ).", "50. Where the national authorities decide to place or maintain a person with disabilities in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from the detainee ’ s disability (see Price v. the United Kingdom, no. 33394/96, § 25, ECHR 2001-VII; Farbtuhs v. Latvia, no. 4 672/02, § 56, 2 December 2004; and Zarzycki v. Poland, no. 1 5351/03, § 102, 12 March 2013).", "51. The detention of a disabled person for a lengthy period in a facility where he or she is unable to move about independently, and in particular leave his or her cell, amounts to degrading treatment proscribed by Article 3 of the Convention ( see Vincent, cited above, § 103, and Cara-Damiani v. Italy, no. 2 447/05, § 72, 7 February 2012).", "52. While it is true that the Convention does not in itself guarantee the right to social assistance, the State cannot release itself from its duty to ensure that detention conditions meet the special needs of disabled prisoners by shifting responsibility for their supervision or assistance to fellow inmates ( see Kaprykowski v. Poland, no. 2 3052/05, § 74, 3 February 2009; Grimailovs v. Latvia, no. 6087/03, § 161, 25 June 2013; and lastly, Semikhvostov v. Russia, no. 2 689/12, § 85, 6 February 2014, in which reference is made to the risk of disabled prisoners being stigmatised by receiving assistance from fellow inmates in their everyday activities ). In some cases, relying on assistance from fellow inmates in order to go to the toilet, wash or get dressed or undressed may be degrading or humiliating ( see the case-law cited in Zarzycki, cited above, § 104, and also D.G. v. Poland, no. 4 5705/07, § 147, 12 February 2013). Access to sanitation facilities raises a particular concern under Article 3 of the Convention ( see D.G. v. Poland, cited above, §§ 147 and 150, and Semikhvostov, cited above, § 81).", "(b) Application of the above principles in the present case", "53. The Court observes firstly that it is not disputed that the applicant has a disability which leaves him largely confined to a wheelchair, although it appears that he is sometimes able to move about with the aid of walking sticks or a walking frame ( see paragraph 10 above ). The applicant ’ s complaint should therefore be examined in the light of the principles set out above governing the State ’ s duty of care towards people with disabilities, in view of their vulnerability in dealing with the hardships of detention.", "( i ) Continued detention", "54. The Court notes that the experts appointed following the application for suspension of the applicant ’ s sentence found that his state of health was compatible with detention provided that he could receive daily physiotherapy. One of them pointed out in his conclusions that physiotherapy could not be provided at Uzerche Prison ( see paragraph 10 above ). The post-sentencing courts subsequently found that the applicant did not satisfy the conditions for having the execution of his sentence suspended, while taking care to note that the prison where he was detained was not suited to his circumstances. The Court of Cassation declared the applicant ’ s subsequent appeal points of law inadmissible.", "55. Having regard to the foregoing, the Court observes that it has not been ruled out that the applicant could receive physiotherapy in a prison setting ( contrast Cara-Damiani, cited above, § 74). The Court observes that the applicant ’ s disability was taken into account in the assessment of his application for suspension of his sentence, which was rejected on the basis of concurring medical opinions concluding that his condition was not incompatible in the long term with detention provided that he was given physiotherapy and access to a gym. In addition, the courts found that Uzerche Prison manifestly failed to satisfy the requirements for the applicant ’ s detention regime, in terms of both the premises and the availability of paramedical care ( see paragraphs 11 and 13 above ). The Court notes in that connection the developments in domestic law and in the positions taken by official bodies as to the need to take account of disabilities when considering applications for the suspension of sentences ( see paragraphs 27, 28, 29 and 30 above ). Lastly, it observes that it does not appear from the case file that the applicant ’ s health has deteriorated during his detention or that his disability has worsened as a result of the detention conditions. In particular, the report on the visit to Uzerche Prison by the CGLPL ( see paragraph 33 above ), which does not deal specifically with the situation for people with disabilities, does not suggest that the conditions there are such as render the applicant ’ s continued detention incompatible with Article 3 of the Convention. Furthermore, should the applicant ’ s health deteriorate, French law affords him the opportunity to submit a fresh application to have his sentence suspended on medical grounds, a process that Parliament has recently relaxed with a view to making it easier to use ( see paragraphs 27 and 28 above ).", "Accordingly, the present case does not concern the question of the applicant ’ s fitness to serve his sentence, but rather the quality of the care provided, and in particular whether the national authorities did everything that could reasonably be expected of them to provide him with the rehabilitative treatment he needed and to offer him some prospect of an improvement in his condition.", "( ii ) Quality of treatment", "56. The Court observes that there is no dispute between the parties as to the promptness and frequency of the medical treatment provided to the applicant since his transfer to Uzerche Prison, including access to specialist consultations ( see paragraphs 16 and 19 above ), and also as to the medical equipment made available to him, except for the electrostimulation device, the purchase of which, according the applicant, has been blocked by the prison authorities. On this specific point, no substantiated arguments have been submitted to the Court, in particular regarding the reason given by the appropriate authorities for refusing to allow the applicant to purchase such a device himself, which he is apparently in a position to do ( see paragraphs 16 and 22 above ) in the absence of any complaints on his part as to whether the device could be covered by the social-security system ( contrast, for example, V.D. v. Romania, no. 7078/02, §§ 94- 96, 16 February 2010). In view of these circumstances, the Court is unable to adopt a position on this point.", "57. With regard to the physiotherapy prescribed by all the doctors who examined the applicant, the Court observes that they unanimously recommended daily rehabilitation sessions and access to a gym. However, the applicant did not receive any paramedical care of this kind until September 2012 – that is, for a period of more than three years following his admission to Uzerche Prison – on account of the lack of qualified staff at the institution. It was also very difficult for him to go to the gym since it was not wheelchair accessible, as the Government explained. The Court would note that the application for suspension of the applicant ’ s sentence was refused subject to his receiving appropriate physiotherapy sessions tailored to his condition, and that the domestic courts pointed out on that occasion that such treatment could not be provided at Uzerche Prison, but in other custodial facilities ( see paragraphs 11 and 13 above ). The UCSA doctors emphasised that the applicant ’ s rehabilitation should take place in a specialist environment ( see paragraph 21 above ). The Court is not in a position to assess whether an ordinary prison without admission to hospital (see paragraph 31 above) would constitute an appropriate setting, but it must ascertain whether measures were taken by the prison authorities to offer the applicant the treatment prescribed by the doctors.", "58. In that connection it notes, firstly, that no physiotherapist came to see the applicant at Uzerche Prison between 2009 and September 2012. According to the information supplied by the Government, the interregional director of the Prison Service repeatedly called upon the appropriate health-care authorities to remedy the deficiencies in the provision of physiotherapy at the prison ( see paragraph 17 above ), but it has to be noted that her appeal went unheeded for more than three years. The Court observes that while the responsibility for ensuring the presence of a physiotherapist at the prison lies with a separate authority from the Prison Service, this cannot justify such a lengthy period of inaction and on no account releases the State from its duties towards the applicant.", "The Court further observes that the Government have not shown that any effort was made to find a solution whereby the applicant could be transferred to another prison or a specialist setting. It cannot accept the Government ’ s argument that the failure to transfer the applicant to such a facility, in particular to Roanne Prison, was entirely his own fault. Admittedly, the applicant ’ s assertion that it would not have possible to provide him with the necessary treatment in that prison can only be regarded as speculation; the parties ’ observations on this issue differ considerably since they referred to the situation at that prison at different times ( see paragraphs 25 and 26 above ). It is likewise true that the applicant did not formally request a transfer but decided against doing so, firstly in June 2010 because, according to the Government, his “main motivation related to the previous decisions of the judicial authorities on requests for suspension of sentences, rather than to the treatment he might receive”, and then in August 2011, for unclear reasons ( see paragraph 26 above ). However, the Court does not consider that this attitude amounted to a refusal of treatment : it notes that in August 2011 the applicant was awaiting the outcome of his court application to have his sentence suspended, which might explain why he did not make any requests to the prison authorities at that time. Furthermore, although Article D. 360 of the Code of Criminal Procedure states that prisoners may request a transfer to another custodial facility more suited to their medical condition, it provides above all that the responsibility for such a transfer lies with the interregional director of the Prison Service, who is to order “ any transfer ... with the aim of enabling a sick prisoner to receive treatment in more favourable conditions ” ( see paragraph 32 above ). However, it does not appear from the case file that any specific measures were taken during that entire period or that any efforts were made to allow the applicant to undergo physiotherapy sessions tailored to his condition, despite the repeated recommendations of the UCSA doctors that he be provided with care in a specialist setting ( see paragraph 21 above ). The attitude of the applicant, who was apparently reluctant to seek a transfer for reasons including the distance from his family (see paragraph 25 above), cannot in itself justify the inaction of the prison and health-care authorities in failing to cooperate ( see paragraph 31 above ) to provide him with the care deemed necessary by the doctors who had examined him. The Court further notes that the physiotherapy he has received since September 2012 is limited to one weekly fifteen-minute session ( see paragraph 21 above ).", "( iii ) Conditions of detention", "59. Uzerche Prison has a cell for disabled prisoners on the ground floor, near the Outpatient Consultation and Treatment Unit, the canteen, the visiting rooms, the route to the exercise yard, and the socio-educational sector. The Court observes that it has not received any complaints from the applicant about the layout of his cell, which is wheelchair accessible ( contrast Vincent cited above, §§ 101 and 102). Nor has the applicant indicated that he has suffered any hardship in moving around the different wings of the prison, which the Court notes is equipped with a lift that he can use where necessary ( contrast Arutyunyan v. Russia, no. 4 8977/09, §§ 78-79, 10 January 2012). Although it does not appear from the case file that the applicant often leaves his cell, the Court cannot infer from his observations any specific problems attaining the level of severity required for Article 3 to be applicable as far as his movements around the facility are concerned, including access to outdoor exercise.", "60. It remains for the Court to examine the part of the complaint concerning : the searches performed on the applicant and the measures taken when he was escorted outside the prison, all of which in his view constituted repeated acts of humiliation; his access to the showers; and the arrangements for assisting him.", "61. Firstly, with regard to the body searches and security measures which the applicant was required to undergo whenever he was transferred to hospital, the Court points out that he did not complain about this issue in his initial application, raising it only in his observations, to which the Government responded by providing additional information about the frequency of and reasons for such transfers ( see paragraph 20 above ). It has already acknowledged that measures of this kind may reach the minimum level of severity required by Article 3 to constitute inhuman or degrading treatment ( see Khider, cited above; El Shennawy v. France, no. 51246/08, 20 January 2011; and Duval, cited above ), but it does not consider that this level has been attained in the present case; the Government ’ s additional observations on this issue indicate that the applicant was not searched systematically but on specific occasions during his detention, some of which concerned all prisoners at the facility. Moreover, only two decisions ordering searches when the applicant was escorted from the prison for medical reasons have been produced to the Court. Having regard to the reasons given by the Government to justify these occasional measures ( see paragraph 20 above ), which were not always aimed at the applicant alone, the Court considers that, despite their arduous nature, they do not appear to have attained the requisite level of severity for Article 3 to be applicable. The Court observes in this connection that the conditions and procedures complained of in relation to the transfers and searches of the applicant are not comparable to those observed in other similar cases ( see Duval and El Shenawy, cited above; Mouisel, cited above, §§ 46 and 47; and Hénaf v. France, no. 65436/01, §§ 54 - 58, ECHR 2003 - XI).", "62. Secondly, as regards access to the sanitary facilities, and more specifically the showers, the Court observes that the applicant ’ s complaint is that since there are no such facilities in his cell, he is unable to go there unaided but is dependent on the assistance of a fellow inmate, a situation that exposes him to humiliation vis-à-vis the prison orderly in question and other prisoners on account of his incontinence. The Court does not have any information about the precise situation regarding the showers or the frequency with which the applicant can use them. However, it has not been disputed by the Government that he is unable to go there on his own ( see paragraph 23 above ) and that they are not designed to be accessible to people with reduced mobility. It can also be inferred from the applicant ’ s condition that the prisoner responsible for assisting him on a day-to-day basis according to the Government (see paragraph 42 above) has to help him to get washed. This state of affairs, where the showers are not wheelchair accessible and the applicant has to rely on a prison orderly to get washed, has been deemed unacceptable by the CGLPL ( see paragraph 29 above ). Furthermore, while legislation passed in 2009 made it possible for any prisoners with disabilities to designate a helper of their choice ( see paragraph 32 above ), the Court observes that a measure of this kind, assuming that the conditions governing such a choice have been satisfied in the present case, is not sufficient to meet the applicant ’ s needs, since having a shower is an uncomfortable occasion for him in view of his incontinence, the lack of privacy and the role of the prisoner designated to assist him ( see, mutatis mutandis, D.G. v. Poland, cited above, § 177). Indeed, it does not appear from the evidence before the Court that such assistance complements the care provided to the applicant by health-care professionals, or that the prisoner designated to assist him has received the necessary training to perform the actions required to accompany a disabled person. The Court observes in this connection that it has held on several occasions that assistance from a fellow inmate, even on a voluntary basis, does not mean that an applicant ’ s special needs are satisfied and that the State has on that account discharged its obligations under Article 3 of the Convention. It has pointed out that it could not endorse a situation where prison staff evade their safety obligations and duty of care towards the most vulnerable prisoners by making their cellmates responsible for providing them with day-to-day assistance or, where appropriate, emergency care; such a situation gives rise to anxiety and places the prisoner in a position of inferiority vis-à-vis the other prisoners ( see Farbtuhs, cited above, § 60, and D.G. v. Poland, cited above, § 147).", "( iv ) Conclusion", "63. In the final analysis, the Court takes the view that the applicant ’ s continued detention is not in itself incompatible with Article 3 of the Convention, but that the national authorities have not provided him with the care required to avoid subjecting him to treatment contrary to that provision. In view of his severe disability and the fact that he suffers from urinary and faecal incontinence, the length of time during which he was detained without receiving any rehabilitative treatment, and his inability to take a shower without the help of a fellow prisoner, are factors that have subjected the applicant to hardship exceeding the unavoidable level of suffering inherent in detention. Those circumstances amount to degrading treatment and thus to a breach of Article 3 of the Convention. The absence of any indication that the authorities acted with the intention of humiliating or debasing the applicant does not alter that finding in any way ( see Farbtuhs, cited above, §§ 50 and 60).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "64. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "65. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.", "66. The Government submitted that the claim was excessive. In the event of a finding of a violation, the sum of EUR 6, 000 could be awarded to the applicant.", "67. In the circumstances of the case, the Court considers it appropriate to award the applicant EUR 7,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "68. The applicant also claimed EUR 4,000 for the costs and expenses incurred before the Court.", "69. The Government did not object to the payment of that amount.", "70. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the applicant the sum of EUR 4,000 for the proceedings before it.", "C. Default interest", "71. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1966 and lives in Poznań.", "6. He is a recidivist offender. He served a number prison sentences in various detention establishments in Poland.", "A. The applicant ’ s medical history prior to 5 August 2003", "7. Since 1996 the applicant has been suffering from epilepsy marked by frequent (daily) seizures and encephalopathy accompanied by dementia. He also suffers from ulcers and syphilis. He has been classified by the social security authorities as a person with a “first-degree disability making him completely unfit to work” ( pierwszy stopień inwalidztwa całkowicie niezdolny do pracy).", "8. On 7 November 2000 the Białystok District Court (Sąd Rejonowy) appointed neurology and forensic medicine experts to produce a report on the applicant ’ s health in connection with a criminal case pending at that time against him. The experts examined the applicant ’ s medical records and the preceding psychological and forensic medicine reports. The extracts from these documents revealed that since 1996 the applicant had been suffering from epilepsy accompanied by very frequent seizures and from a personality disorder. He had made several suicide attempts. During one medical interview, the applicant had stated that he could not obtain the necessary medical treatment in prison and that his cellmates ignored his epileptic fits. The doctors, who had examined the applicant in the past, agreed that he could remain in prison provided that he received specialised psychiatric treatment on a permanent basis.", "9. On 11 July 2001 the Białystok District Court appointed new medical experts to draft a report on the applicant ’ s health. The experts found that the penitentiary medical care system could no longer offer the applicant the necessary treatment. They emphasised that his continuous incarceration might put his health and life at risk. It was further indicated that the applicant should obtain a more detailed diagnosis from a specialised clinic and, perhaps, undergo brain surgery.", "B. The applicant ’ s detention and medical assistance provided to him prior to 5 August 2003", "10. It appears that the applicant was first remanded in custody on 30 May 1998.", "11. From 1 3 April 1999 until 23 June 1999 and from 20 July 1999 until 4 January 2000 he was detained in Poznań Remand Centre.", "12. It appears that in 2000 he was admitted for several days to an unspecified prison hospital.", "13. On 10 January 2001 the applicant was committed to Gdańsk Remand Centre where he received medical treatment in the neurology ward. Doctors emphasised the need to provide the applicant with permanent specialised medical care and to ensure his constant supervision by another person.", "14. On 5 April 2001 he was transferred to Białystok Remand Centre.", "15. On 3 August 2001 the applicant was released home.", "16. On 17 September 2001 he was again remanded in custody in connection with a new criminal case against him. From that day until 30 October 2001 he was detained in Poznań Remand Centre.", "17. On 28 February 2002 he was granted conditional release from prison.", "18. On 5 September 2002 the applicant was once more remanded in custody. He was committed to an unspecified detention facility.", "19. From 28 April until 5 August 2003 the applicant was at liberty.", "C. The applicant ’ s detention after 5 August 2003", "20. On 5 August 2003 the applicant was again remanded in custody. From that day until 30 November 2007 he was in continuous detention either in ordinary detention facilities or in prison hospitals.", "21. During that time he was detained in Poznań Remand Centre during four separate periods: (1) from 5 until 27 August 2003; (2) from 18 May until 12 July 2005; (3) from 5 January 2006 until an unspecified date, presumably 20 March 2006; and (4) from 9 May until 30 November 2007.", "22. It appears that apart from Poznań Remand Centre the applicant was detained in the following facilities: from 28 August 2003 until 21 April 2004 in Wrocław Prison; from 22 April 2004 until an unspecified date in Białystok Remand Centre; subsequently in Śrem, Białołęka, Radom and Jelenia Góra Remand Centres; from 19 September until 19 October 2004 in the Szczecin Remand Centre hospital and immediately afterwards in Stargard Szczeciński Prison; from an unspecified date in January 2005 in Bydgoszcz Remand Centre; from 10 January until 4 April 2005 in the Gdańsk Remand Centre hospital; from 12 July until 4 October 2005 in Wronki Prison; from 4 October 2005 until 5 January 2006 in the Gdańsk Remand Centre hospital; from 20 March until 19 April 2006 in the Bydgoszcz Remand Centre hospital; from 29 June 2006 until 9 May 2007 in the Czarne Prison hospital.", "23. The applicant submitted that in Poznań Remand Centre he was committed to a general and not medical wing. He had shared his cells with healthy prisoners, who, as he submitted, had ignored his epileptic fits and had not offered him any help in his daily routines. The applicant also submitted that he had been humiliated in front of his fellow inmates because, as a result of his seizures, he had often lost consciousness and had wet himself.", "24. On 1 December 2007 the applicant was released and he is currently at liberty.", "D. Medical assistance provided to the applicant after 5 August 2003", "25. From 19 September until 19 October 2004 the applicant was detained at the internal disease ward of the Szczecin Prison hospital. He was administered Gabitril as a main drug in his treatment.", "26. From 10 January until 4 April 2005 he was detained in the neurology ward of the Gdańsk Remand Centre hospital. He was prescribed Gabitril and Neurotrop as the main drugs in his treatment and it was suggested that he should regularly undergo neurological examinations.", "27. From 18 May until 12 July 2005, during his detention in Poznań Remand Centre, the applicant was examined twice by a neurologist and sixteen times by the remand centre ’ s in-house doctor.", "In addition, from 24 June until 12 July 2005 he was placed under medical observation in the Poznań Remand Centre hospital. At the hospital new generic drugs were administered to the applicant in place of Gabitril, which was an expensive medicine.", "28. From 4 October 2005 until 5 January 2006 the applicant was once more admitted to the neurology ward of the Gdańsk Remand Centre hospital, where he resumed taking Gabitril.", "29. From 20 March until 19 April 2006 he was detained in the surgery ward of the Bydgoszcz Remand Centre hospital because he had developed gallstones.", "30. From 29 June 2006 until 9 May 2007 the applicant was detained in Czarne Prison hospital, where he was admitted to the ward for the chronically ill. Gabitril was administered to him during this time.", "On his release from the hospital, the doctors considered the applicant to be in a good overall shape and self-sufficient. It was recommended that he be assigned a bottom bunk bed, be put on a diet and continue the pharmacological treatment prescribed, comprising Gabitril. It was also stressed that the applicant be placed under 24-hour medical supervision.", "31. Between 9 May and 30 November 2007, when the applicant was detained in Poznań Remand Centre, he continued taking Gabitril. It appears that he was examined eighteen times by the remand centre ’ s in-house doctors.", "32. Copies of medical records furnished by the applicant reveal that towards the end of 2007 his epilepsy was still severe, although, his epileptic seizures were less frequent. Moreover, his personality disorder continued to manifest itself in that the applicant sometimes experienced hallucinations. Most of the time, however, he was suffering from serious dementia.", "The Government did not submit any medical documents or information regarding the applicant ’ s health condition or his treatment.", "E. Medical report drawn up after 5 August 2003", "33. On 27 February 2004 a new report was drafted by experts in psychology, psychiatry and neurology, who had been appointed by the Poznań Regional Court (Sąd Okręgowy) in the course of social security proceedings for a disability benefit. The experts found that the applicant was suffering from epileptic seizures a number of times per week, sometimes even several times per day. He had also been diagnosed with encephalopathy accompanied by dementia, and also with ulcers and syphilis. The experts concluded that, even though the applicant could at that time perform basic daily activities such as washing, dressing, eating and the toilet without help, he was nevertheless too handicapped to act autonomously in making decisions or in undertaking more demanding daily routines. The experts were of the opinion that the applicant was incapable of being self-reliant and that he required, at least for the time being, direct and permanent care from another person.", "F. The applicant ’ s complaints to the prison authorities", "34. On 31 May, 28 June and 6 July 2005 the applicant lodged with the penitentiary administration complaints about his medical treatment in prison. He claimed that he had only received information stating that his complaints had been referred to the “competent authorities” ( do właściwych organów ). In the Government ’ s submission, all three complaints had been examined by competent authorities, including the Chief Doctor of the Regional Inspectorate of the Prison Service (Naczelny Lekarz Okręgowego Inspektoratu Służby Więziennej) and considered ill-founded.", "35. On 11 August 2005 the applicant complained to the Regional Inspectorate of the Prison Service that he had been prescribed Polish generic medicine in place of Gabitril, a more effective drug. That complaint was considered ill-founded because at the time when his medicines had been changed the applicant had been under close medical supervision at the prison hospital and his health had not deteriorated." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Medical care in detention facilities", "36. Article 68 of the Constitution, in its relevant part, reads:", "“1. Everyone shall have a right to have his health protected.", "2. Equal access to health care services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their material situation ... ”", "37. Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:", "“ 1. A sentenced person shall receive medical care, medicines and sanitary articles free of charge.", "...", "4. Medical care is provided, above all, by health care establishments for persons serving a prison sentence.", "5. Health care establishments outside of the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular", "1) to provide immediate medical care because of a danger to the life or health of a sentenced person;", "2) to carry out specialist medical examinations, treatment or rehabilitation of sentenced person;", "3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence ... ”", "38. On the basis of Article 115, paragraph 10 of the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty ( Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “the October 2003 Ordinance”). It entered into force on 17 December 2003.", "Under paragraph 1.1 of the October 2003 Ordinance, health care establishments for persons deprived of liberty provide, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services to persons deprived of liberty.", "Paragraph 1 of this Ordinance further provides:", "“ 2. In a justified case, if the medical services as enumerated in sub ‑ paragraph 1 cannot be provided to persons deprived of liberty by the health care establishments for persons deprived of liberty, in particular due to the lack of specialised medical equipment, such medical services may be provided by public health care establishments.", "3. In a case as described in sub ‑ paragraph 2, the head of a health care establishment for persons deprived of liberty shall decide whether or not such medical services [provided by the public healthcare establishments] are necessary ... ”", "Paragraph 7 of the October 2003 Ordinance states:", "“1. The decision to place a person deprived of liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse...", "2. The decision whether or not it is necessary to place a person deprived of liberty in a ... prison hospital shall be taken by the prison hospital ’ s director or by a delegated prison doctor.", "...", "6. In case of emergency the decision whether or not it is necessary to transfer a person deprived of liberty to a hospital may be taken by a doctor other than a prison doctor ...”", "39. The rules of cooperation between prison health care establishments and public health care facilities are set out in the Ordinance of the Minister of Justice issued on 10 September 2003 on the detailed rules, scope and procedure for the cooperation of health care establishments with health services in prisons and remand centres in the provision of medical services to persons deprived of liberty ( Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “the September 2003 Ordinance”). It entered into force on 17 October 2003.", "B. Judicial review and complaints to administrative authorities", "40. Detention and prison establishments in Poland are supervised by penitentiary judges who act under the authority of the Minister of Justice.", "Under Article 6 of the Code of Execution of Criminal Sentences (“the Code”) a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence.", "Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a Governor of a prison or a remand centre, a Regional Director or the Director General of the Prison Service or a court probation officer. Applications related to execution of prison sentences are examined by a competent penitentiary court.", "The remainder of Article 7 of the Code reads as follows:", "“ 3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the publication or the service of the decision; decision [in question] shall be published or served with a reasoned opinion and instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority who had issued the contested decision. If [that] authority does not consider the appeal favourably, it shall transfer it together with the case file and without undue delay to the competent court.", "4. The Court competent for examining the appeal can cease the enforcement of the contested decision...", "5. Having examined the appeal the court shall rule on upholding the contested decision, [its] quashing or changing; the court ’ s decision shall not be a subject of an interlocutory appeal.”", "In addition, under Article 33 of the Code of the Execution of Criminal Sentences (“the Code”) a penitentiary judge is entitled to make unrestricted visits to detention facilities, to be acquainted with documents and provided with explanations from the management of these establishments. A penitentiary judge also has the power to communicate with persons deprived of liberty without the presence of third persons and to examine their applications and complaints.", "Article 34 of the Code in its relevant part reads as follows:", "“ 1. A penitentiary Judge shall quash an unlawful decision [issued by, inter alia, the Governor of a prison or remand centre, the Regional Director or the Director General of the Prison Service] concerning a person deprived of liberty.", "2. An appeal to the penitentiary court lies against the decision of a penitentiary judge ...", "4. In the event of finding that the deprivation of liberty is not in accordance with the law, a penitentiary judge shall, without undue delay, inform the authority [in charge of a person concerned] of that fact, and, if necessary, shall order the release of the person concerned.”", "Finally, Article 102, paragraph 10, of the Code guarantees a convicted person a right to lodge applications, complaints and requests with other competent authorities, such as the management of a prison or remand centre, heads of units of the Prison Service, penitentiary judges, prosecutors and the Ombudsman. The detailed rules on the procedure are laid down in the Ordinance of the Minister of Justice issued on 13 August 2003 on the manner of proceeding with applications, complaints and requests of persons detained in prisons and remand centres (Rozporządzenie w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych ) (“the August 2003 Ordinance”).", "C. Civil remedies", "41. Article 23 of the Civil Code contains a non-exhaustive list of the so-called “ personal rights ” ( prawa osobiste ). This provision states:", "“The personal rights of an individual, such as in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.”", "Article 24 paragraph 1 of the Civil Code provides:", "“ A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [ the person concerned ] may also require the party who caused the infringement to take steps necessary to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned ] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”", "42. Article 445 § 1 of the Civil Code, applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a State agent, reads as follows:", "“ ... [T] he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered. ”", "Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:", "“The court may grant an adequate sum as pecuniary compensation for non-material damage ( krzywda ) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”", "43. In addition, Articles 417 et seq. of the Polish Civil Code provide for the State ’ s liability in tort.", "Article 417 § 1 of the Civil Code provided:", "“ The State Treasury shall be liable for damage ( szkoda ) caused by an agent of the State in carrying out acts entrusted to him.”", "After 2004 amendments Article 417 § 1 of the Civil Code provides:", "“The State Treasury or [as the case may be] a self-government entity or other legal person responsible for exercising public authority shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”", "D. Practice of civil courts as submitted by the Government", "44. In their submissions on the admissibility and the merits of the case the Government referred to the judgment of the Koszalin Regional Court ( Sąd Okręgowy ) of 30 May 2006 and the Supreme Court ( Sąd Najwyższy) of 28 February 2007 in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights.", "1. Koszalin Regional Court ’ s judgment of 30 May 2006", "45. On 30 May 2006 the Koszalin Regional Court awarded compensation for non-pecuniary damage in a case which had been brought by a certain N.S., a non-smoker detained with smoking inmates (IC 650/04). The plaintiff alleged that by forcing him to be a passive smoker the authorities had breached his right to an environment free from cigarette smoke and had caused him mental suffering. He also alleged that as a result of passive smoking his allergies had increased and his overall immune system had been weakened.", "46. The domestic court examined the case under Articles 444 and 445 of the Civil Code. It was observed that the notion of damage under those provisions was linked with the liability ex delicto based on the fault (wina ) of the person who had caused the damage. The provisions relied on concerned both material and non- material damage. The former was defined as a physical injury or health disorder resulting from an unlawful act or omission. The latter could be manifested by negative mental experiences suffered by the plaintiff as a result of his physical injury or health disorder. In both cases the burden of proof rested on the plaintiff.", "The Koszalin Regional Court observed that according to the Ordinance of 26 November 1996 on the principles for the permitted use of tobacco in closed establishments under the Minister of Justice ( Rozporządzenie w sprawie określenia zasad dopuszczalności używania wyrobów tytoniowych w obiektach zamkniętych podległych Ministrowi Sprawiedliwości ) (“1996 Ordinance”) persons detained in remand centres and prisons could smoke only inside the selected cells designated for smokers.", "It was held that the administration of the remand centre where the applicant had been detained with smokers had acted in breach of the 1996 Ordinance and Article 68 of the Constitution. The court found that the plaintiff had not proved any material damage, namely the physical injury or health disorder. He had however suffered non-material damage resulting from an unlawful interference with his right to protect himself from passive smoking. The court awarded the plaintiff PLN 5,000.", "2. Supreme Court ’ s judgment of 28 February 2007", "47. On 28 February 2007 the Supreme Court recognised for the first time the right of a detainee under Article 24, read in conjunction with Article 448 of the Civil Code, to lodge a civil claim against the State Treasury for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment.", "That judgment originated from the civil action brought by a certain A.D., who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm. The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions.", "The Supreme Court dismissed the cassation appeal in so far as it related to the allegation of inadequate medical care. In this connection the Supreme Court upheld the judgments of the first and second-instance courts which had found no causal link between the deterioration of the plaintiff ’ s health and the quality of medical care provided to him in detention.", "In so far as the cassation appeal related to the allegation of overcrowding and inadequate conditions of the plaintiff ’ s detention the Supreme Court quashed the second-instance judgment in which the applicant ’ s claim had been dismissed. The Supreme Court held that the case should have been examined under Article 24, in conjunction with Article 448 of the Civil Code, and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff ’ s personal rights had not been infringed. The case was remitted to the appeal court.", "48. On 6 December 2007 the Wrocław Court of Appeal held that overcrowding coupled with inadequate living and sanitary conditions in a detention facility could give rise to degrading treatment in breach of a detainee ’ s personal rights. On the other hand, the court observed that in the light of the Supreme Court ’ s established case-law, a trial court did not have a duty to award compensation for each personal right ’ s infringement. One of the main criteria in assessing whether or not to award compensation for a breach of a personal right was the degree of fault on the part of a respondent party. The Court held that in relation to the overcrowding, no fault could be attributed to the management of a particular detention facility since the management were not in a position to refuse new admissions even when the average capacity of a detention facility had already been exceeded. Ultimately, the case was dismissed.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "49. The applicant complained that he required specialised medical care and direct and constant assistance from another person in his daily activities, which had not been provided to him during his detention in Poznań Remand Centre. Considering his particular health condition, namely severe epilepsy and other neurological disorders, the lack of adequate medical treatment and assistance, constituted, in the applicant ’ s opinion, a breach of the prohibition of inhuman and degrading treatment as provided in Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Admissibility", "1. Government ’ s preliminary objection on non-exhaustion of domestic remedies", "(a) The Government", "50. The Government argued that the applicant did not exhaust all the domestic remedies available to him. In particular he could have, but did not, make use of the provisions of Articles 23 and 24 of the Civil Code in conjunction with Article 445 or Article 448 of the Civil Code in order to bring an action for compensation for the alleged health disorder. In this connection they relied on the Koszalin Regional Court ’ s judgment of 30 May 2006 (see paragraphs 45-46 above) and the Supreme Court ’ s judgment of 28 February 2007 (see paragraphs 47 -4 8 above).", "(b) The applicant", "51. The applicant submitted that he had lodged formal complaints with penitentiary authorities on the basis of the Code of Execution of Criminal Sentences, including the Regional Inspectorate of the Prison Service, and that each claim had been rejected. He also claimed that the civil remedy in question was not capable of providing immediate relief to people in detention, because proceedings before civil courts were lengthy and costly.", "(i) General principles relating to exhaustion of domestic remedies", "52. The Court observes that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 65).", "53. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (ibid., § 68).", "In addition, Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (ibid., § 69).", "(ii) Application of these principles to the present case", "54. The Court notes that in the present proceedings the Government provided an example of a domestic case in which Article 445 of the Civil Code had been successfully relied on with the effect of granting the plaintiff compensation for non-material damage which had been caused by unlawful interference with his right to protect himself from passive smoking. The Government also relied on the Supreme Court judgment recognising for the first time the right of a detainee under Article 448 of the Civil Code to lodge a civil claim against the State Treasury for damage caused by overcrowding and resultant inadequate living and sanitary conditions in a detention establishment.", "55. The Court welcomes these new developments in domestic jurisprudence in the field of personal rights. It is not persuaded, however, that the relevant judgments can have any parallel effect in the area of claims arising from inadequate medical care in detention and whether they can be considered examples of a common practice well- established as of today and even less so at the time when the applicant introduced his application with the Court.", "In that context the Court reiterates that, according to its established case ‑ law, the purpose of the domestic remedies rule in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003). It must be noted that the applicant lodged his application with the Court on 4 June 2005. By that time he had already spent nearly two years in continuous detention (see paragraphs 1 and 20 et seq. above).", "56. It cannot be said that the two examples from domestic case-law supplied by the Government show that, in the circumstances of the case and, more particularly, at the time when the applicant brought his application under the Convention, an action under Article 445 or Article 448 of the Civil Code could have offered him reasonable prospects of securing better medical care in an ordinary detention facility or his transfer to a prison neurological hospital.", "(c) The Court ’ s conclusion", "57. In view of the above, the Court is not satisfied that the remedies relied on by the Government would have been adequate and effective in connection with the applicant ’ s complaint concerning his medical treatment in detention. Nor does it consider that the Government have demonstrated the effectiveness of any other remedy in the domestic law system which the applicant should have used to obtain the requisite relief in parallel to his administrative complaints.", "Accordingly, the Government ’ s objection on exhaustion of domestic remedies must be rejected.", "2. Government ’ s preliminary objection on non-compliance with the six-month rule", "( a) The Government", "58. The Government submitted that from April 1999 until July 2005 the applicant was detained in Poznań Remand Centre for five different terms (see paragraphs 8, 15, 19 and 21 above). Meanwhile, he was detained in other establishments and he was also twice released from prison. The applicant was at liberty from 28 February until 5 September 2002 and from 28 April until 5 August 2003. As a consequence, the Court ’ s examination of the application should be limited to the applicant ’ s detention in Poznań Remand Centre between 18 May and 12 July 2005, the remainder being inadmissible for non-compliance with the six-month rule.", "(b) The applicant", "59. The applicant did not contest this view in so far as it related to his detention prior to 18 May 2005. However, he submitted that he had been detained in Poznań Remand Centre also in 2006 and 2007.", "(c) The Court ’ s conclusion", "60. Given that the applicant lodged his application with the Court on 4 June 2005 (see paragraph 1 above), the Court finds that the complaints concerning four terms of the applicant ’ s detention in Poznań Remand Centre, namely from 13 April until 23 June 1999, 20 July 1999 until 4 January 2000, 17 September until 30 October 2001, and 5 until 27 August 2003, do not comply with the six-month rule.", "3. Conclusion on admissibility", "61. Having regard to the above considerations, the Court dismisses the Government ’ s preliminary objection on non-exhaustion of domestic remedies.", "The Court upholds the Government ’ s objection on non-compliance with the six-month rule and finds that the application, in so far as related to the applicant ’ s detention in Poznań Remand Centre during the four terms specified above (see paragraph 60 above), has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "Consequently, the Court holds that the remainder of the application, as far as it concerns the applicant ’ s detention in Poznań Remand Centre from 18 May 2005 until 12 July 2005, from 5 January 2006 until an unspecified date, presumably 20 March 2006, and from 9 May 2007 until 30 November 2007, is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "62. The applicant complained that he required specialised medical care and direct and constant assistance from another person in his daily activities, which had not been provided during his detention in Poznań Remand Centre. He further submitted that the management of Poznań Remand Centre refused to supply him with Gabitril, which was a foreign medicine prescribed in the past by a doctor whom he had consulted outside that remand centre. Instead, the in-house doctors of Poznań Remand Centre prescribed cheaper Polish generics and provided inadequate medical care.", "63. The applicant submitted that his state of health had been serious enough to be incompatible with protracted detention in the remand centre, which did not have medical personnel qualified to treat neurological disorders. The authorities were fully aware of his medical condition and medical recommendations of court-appointed experts and a neurology specialist from the hospital of Gdańsk Remand Centre. Regardless of that, the applicant was detained most of the time in Poznań Remand Centre, either in its general ward or in its hospital. There were a few short intervals when he was hospitalised in, as he claimed, the only adequate facility in Poland, the neurology ward of the Gdańsk Remand Centre hospital.", "64. Moreover the applicant argued that the change of his pharmacological treatment had been ordered by doctors specialising in internal medicine, not in neurology. The alternative treatment had no medical grounds but it was rather dictated by the wish to reduce medical expenses. Taking the applicant off the drug Gabitril resulted in more frequent and serious epileptic seizures accompanied by loss of consciousness and urinary incontinence.", "65. The applicant complained that in Poznań Remand Centre he was constantly in a position of inferiority vis-à-vis his cellmates because he depended on first aid from them when he had his epileptic seizures and on their assistance in his daily routines. The applicant also claimed to have been humiliated in front of his fellow inmates because, as a result of his seizures, he often lost consciousness and wet himself.", "(b) The Government", "66. The Government submitted that the applicant ’ s complaint was manifestly ill-founded because he had received adequate medical care and medicines which had been prescribed by doctors. The Government emphasised the fact that the applicant had been detained together with other persons who knew how to act in the event of his epileptic seizures. It was also noted that whenever the applicant ’ s state of health had raised concerns, a report had been obtained from independent experts. When necessary the applicant had been transferred to Gdańsk Remand Centre hospital to receive better medical care. Finally the Government submitted that the applicant had been fit to perform the necessary daily routines without any help from third persons.", "67. On the issue of replacing the drug Gabitril with alternative generic medicines, the Government stated that at the relevant time the applicant had remained under close medical supervision at the Poznań Remand Centre hospital, where he had been examined by doctors almost every day.", "2. The Court ’ s assessment", "(a) General principles", "68. The Court reiterates that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III ). Although the purpose of such treatment is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers, cited above, § 74).", "69. Moreover, it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 of the Convention (see Mouisel v. France no. 67263/01, § 37, ECHR 2002-IX). Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to transfer him to a civil hospital, even if he is suffering from an illness that is particularly difficult to treat ( see Mouisel, cited above, § 40). However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance (see Hurtado v. Switzerland, judgment of 28 January 1994, Series A no. 280-A, opinion of the Commission, pp. 15-16, § 79, and Mouisel, cited above, § 40).", "(b) Application of these principles to the present case", "70. The Court must determine whether during his detention in Poznań Remand Centre from 18 May until 12 July 2005, from 5 January 2006 until an unspecified date, presumably 20 March 2006, and from 9 May until 30 November 2007 the applicant needed regular medical assistance, whether he was deprived of it as he claims and, if so, whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (see Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004, and Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005 ).", "In this connection the Court reiterates that the scope of the instant application has been limited by the applicant only to Poznań Remand Centre and the complaints concerning four terms of his detention in this facility did not comply with the six-month rule. Notwithstanding, the question of whether or not the applicant has suffered inhuman and degrading treatment during his detention in Poznań Remand Centre in the above mentioned periods must be determined against the entire background of the case. The Court must thus examine this case bearing in mind that the applicant was in continuous detention from 5 August 2003 until 30 November 2007.", "71. The evidence from various medical sources submitted by both parties confirms that the applicant had at least three serious medical conditions which required regular medical care, namely epilepsy, encephalopathy and dementia. He suffered from frequent epileptic seizures, sometimes as often as several times a day (see paragraphs 7, 8, 32 and 3 3 above).", "72. The applicant clearly suffered from the effects of his medical condition. Throughout his incarceration several doctors stressed that he should receive specialised psychiatric and neurological treatment and should be under constant medical supervision (see paragraphs 8, 13, 26 and 33 above). Already in 2001 the medical experts appointed by the Białystok District Court were of the opinion that the penitentiary system could no longer offer the applicant the necessary treatment and they recommended that he should undergo brain surgery ( see paragraph 9 above). On 9 May 2007 when the applicant was being released from Czarne Prison hospital, the doctors clearly recommended that he should be placed under 24-hour medical supervision (see paragraph 3 0 above). In the light of the above the Court is convinced that the applicant was in need of constant medical supervision, in the absence of which he faced major health risks.", "73. The applicant must have known that he risked at any moment a medical emergency with very serious results and that most of the time no immediate medical assistance was available. The Court takes note of the Government ’ s submission that, at the relevant time, the applicant had been examined twice by a neurologist and sixteen times by a prisonin-house doctor. On the other hand, it must be noted that the applicant had frequent epileptic seizures and, when he was detained in the general wing of Poznań Remand Centre, he could count only on the immediate assistance of his fellow inmates and, possibly, on being only later examinedby an in-house doctor who did not specialise in neurology. In addition, due to his personality disorder and dementia, the applicant could not act autonomously in making decisions or in undertaking more demanding daily routines. That must have given rise to considerable anxiety on his part and must have placed him in a position of inferiority vis-à- vis other prisoners.", "74. The fact that from 24 June until 12 July 2005 the applicant was in the Poznań Remand Centre hospital does not affect this finding, since the establishment did not specialise in treating neurological disorders and since the period of the applicant ’ s hospitalisation was anyway very short.", "Moreover, placing the applicant, from 9 May until 30 November 2007, in an ordinary cell of a general wing of Poznań Remand Centre, without providing him with a 24-hour medical supervision, was clearly in contradiction to the recommendations of the doctors who had treated the applicant in the Czarne Prison hospital in the preceding months. The fact that during that time the applicant was attended eighteen times by the remand centre ’ s medical staff has no bearing since the medical care provided to him was of a general character, none of the doctors being a neurologist.", "Finally, the Court is struck by the Government ’ s argument that the conditions of the applicant ’ s detention were adequate, because he was sharing his cell with other inmates who knew how to react in the event of his medical emergency. The Court wishes to stress its disapproval of a situation in which the staff of a remand centre feels relieved of its duty to provide security and care to more vulnerable detainees by making their cellmates responsible for providing them with daily assistance or, if necessary, with first aid.", "75. Lastly, the Court must also be mindful of three important factors comprising the background of the case.", "Firstly, the time when the applicant could rely solely on the prison health care system amounted to more than four years, from 5 August 2003 until 30 November 2007. In that connection, the Court is concerned about the fact that the applicant was detained most of the time in ordinary detention facilities or, at best, in an internal disease ward of a prison hospital. He was detained in the specialised neurological hospital of Gdańsk Remand Centre on only two occasions.", "Secondly, the applicant was often transported long distances and transferred about eighteen times between different detention facilities. In this connection, the Court considers that such a frequent change of environment must have produced unnecessary negative effects on the applicant who was, at the relevant time, a person of a fragile mental state.", "Thirdly, the Court takes note of the facts that for a considerable time the applicant was taking certain non-generic drugs which had been prescribed by the neurology specialists of the Gdańsk Remand Centre hospital and that in June 2005 his treatment was changed to generic drugs upon the decision of the doctors practising in the Poznań Remand Centre hospital, who were not neurologists. The Court also notes that when in October 2005 the applicant was finally transferred to the neurology ward of the Gdańsk Remand Centre hospital, he immediately resumed taking previously prescribed medicines.", "The Court reiterates that the Convention does not guarantee a right to receive medical care which would exceed the standard level of health care available to the population generally (see Nitecki v. Poland (dec.), no. 65653/01, 21 March 2002). Nevertheless, it takes note of the applicant ’ s submission, which was not contested by the Government, that the change to generic drugs resulted in an increase in the number of his daily seizures and made their effects more severe (see paragraph 64 above) and as such contributed to the applicant ’ s increased feeling of anguish and physical suffering.", "76. In the Court ’ s opinion the lack of adequate medical treatment in Poznań Remand Centre and the placing of the applicant in a position of dependency and inferiority vis-à-vis his healthy cellmates undermined his dignity and entailed particularly acute hardship that caused anxiety and suffering beyond that inevitably associated with any deprivation of liberty.", "77. In conclusion, the Court considers that the applicant ’ s continued detention without adequate medical treatment and assistance constituted inhuman and degrading treatment, amounting to a violation of Article 3 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "79. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage and did not allege any pecuniary damage.", "80. The Government did not make any comment on the claim.", "81. The Court considers that the applicant must have been caused a certain amount of anxiety and suffering, notably because of the disregard of his medical needs by the authorities and awards the applicant EUR 3 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "82. The applicant, who was granted legal aid, also claimed that the costs and expenses incurred before the Court be covered.", "However, he did not specify the amount and did not furnish any documents in that respect.", "83. The Government did not make any comment on the claim.", "84. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the fact that the applicant is represented before the Court by a legal-aid lawyer, the Court rejects the claim for costs and expenses in the domestic proceedings.", "C. Default interest", "85. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants Andrew George McGlinchey and Natalie Jane Best, born in 1985 and 1990 respectively, are the children of Judith McGlinchey (born in 1968). The applicant Hilary Davenport, born in 1945, is the mother of Judith McGlinchey.", "9. On 3 January 1999, Judith McGlinchey died in Pinderfields Hospital, Wakefield, West Yorkshire, whilst in the care of the Home Office of the United Kingdom government as a convicted prisoner.", "10. Judith McGlinchey had a long history of intravenous heroin addiction and was asthmatic, for which she had been admitted to hospital on six occasions during the previous year.", "It is purported that Judith McGlinchey had, prior to being imprisoned, told her mother, who now cares for her children Andrew and Natalie, that she wanted rehabilitation assistance to rid herself of the heroin addiction. She told her solicitor that she had tried to refer herself for help but that it was impossible to obtain appointments without inordinate delays.", "11. After having been convicted of theft, Judith McGlinchey was sentenced at Leeds Magistrates’ Court, on 7 December 1998, to four months’ imprisonment, despite an alternative proposal for a probation order with a condition that she be treated for her addiction. Thereafter, she was detained at New Hall Prison, Wakefield. She stated to her solicitor that she intended to use the period in custody as an opportunity to rid herself of her addiction to heroin.", "12. At the health screening on her arrival at the prison on 7 December 1998, Judith McGlinchey was noted as not seeming excessively withdrawn, depressed or anxious. She weighed 50 kg. She complained of swelling to her left arm, withdrawal symptoms from her addiction and suffering from severe asthma especially when withdrawing, and was kept in the health-care centre pending an examination by a doctor. That evening, Judith McGlinchey telephoned her mother complaining of her infected arm and asthma. During the night, when she was observed to be wheezing, she was given an inhaler. She was also given paracetamol.", "13. The prison medical records showed thereafter that she was complaining of withdrawal symptoms and that she was vomiting frequently. The records consisted of the continuous medical record, prescription and administration charts and the nursing assessment notes. Her blood pressure, temperature and pulse were checked daily.", "14. On 8 December 1998 Judith McGlinchey was examined by Dr K., the prison senior medical officer, who prescribed antibiotics for her arm, inhalers for her asthma and medication, Lofexidine, to appease the symptoms of heroin withdrawal. The nursing notes stated that she threw a cup of tea across the cell, was “locked in for education” and that during the night she was very loud and demanding. Lofexidine was not administered at 12 noon. The applicants alleged that this was a punishment, while the Government submitted that it was on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. The entries in the nursing notes show that Judith McGlinchey was seen by a medical officer that morning and the drugs record sheet, signed by Dr K., indicates that after a blood pressure reading of 80/60 the next dose of Lofexidine was omitted at 12 noon.", "15. On 9 December 1998 the record noted that she remained demanding. She had been told to clean her cell prior to education, which was a reference to the routine tidying-up of the cell and in accordance with normal practice. It was noted that she refused to comply. She was locked in during the education period and declined every meal. In the evening her weight was recorded as 43 kg. It was noted that she had vomited during the evening and had complained of vomiting during the night. She was encouraged to take fluids and given two doses of a mild anti-nausea drug (magnesium trisilicate) by the nursing staff.", "16. Her situation was reviewed by Dr K. on 10 December 1998. As stated later in a statement to the coroner dated 4 January 1999, her medical readings (temperature, pulse and blood pressure) remained satisfactory. She did not appear dehydrated – it was noted that her tongue was moist and clean – but as she was still complaining of vomiting she was given an injection of anti-emetic medication. She complained of diarrhoea and stomach cramps to the nurse on duty during the night. A dose of magnesium trisilicate was given for nausea but it was recorded that this had little effect.", "17. On 10 December 1998 Judith McGlinchey called her mother in tears, complaining that despite having been given an injection, she could not stop vomiting and was getting no other medical support to assist her to come off drugs. She said that she was having to clean up her own vomit and thought she was going to die. The Government stated that there was a lavatory in her cell which she would have been able to reach and that the practice was for nursing staff to clean up if vomit landed on the floor or any other area. The only member of staff involved in the care of Judith McGlinchey who remains with the Prison Service and who is head of nursing care at the prison has informed the Government that a prisoner would not have been asked to clean up her own vomit and she has no recollection of Judith McGlinchey being asked to do so.", "18. On 11 December 1998 she was recorded as keeping down a cup of tea and a glass of juice but was vomiting again during the afternoon and evening. At 6.10 a.m. she was found smoking in bed and when asked what the matter was, she replied “nothing”. The next day, she was found to be “opiate positive”.", "19. The doctor examined her on 11 December 1998. She was given a further injection of medication to help with her symptoms. He found her general condition to be stable. In his statement of 4 January 1999 he noted that, following the injection, she was able to keep down oral fluids during the day, although she vomited again in the evening. The Government stated that the doctor checked her for signs of dehydration but did not find any. This was confirmed by Dr K.’s evidence to the coroner. The notes stated that her tongue was moist and clean. In the case of a person who was severely dehydrated, he would have expected the person to be physically very weak and possibly bedridden, to have a fast pulse rate and low blood pressure and, on examination, the eyes would appear sunken, the tongue dry and cracked, the lips drawn and the skin drawn and thin.", "20. On 12 December 1998 she continued to vomit and suffered from diarrhoea and abdominal discomfort. Her weight was recorded as 40 kg. She ate nothing. The nursing notes recorded that she had had a better night. There was a reference: “Continues to vomit on occasions? hand down throat.” The medical record stated that she had been observed with fingers down throat and vomit on her hand.", "21. On 13 December 1998 according to the nursing entries, there was no vomiting complained of or witnessed apart from twice at the beginning of the night. It was also recorded that she ate a small dinner and slept for long periods that night. There were no entries in the medical record on this day. The doctor stated in his statement of 4 January 1999 that on 12 and 13 December 1998 her temperature, pulse and blood pressure all remained within normal limits. Oral doses of anti-emetic drugs (metoclopromide) were prescribed to follow the injections, and administered on four occasions between 10 and 12 December 1998. In her evidence to the coroner, the head of nursing care stated that the drugs were not given on 13 December as Judith McGlinchey had stopped vomiting.", "22. However, at 8.30 a.m. on 14 December 1998, the following was noted in the continuous medical record:", "“... went to see inmate in cell, as she got out of bed she collapsed against me vomiting (coffee ground). Laid on floor in recovery position and summoned help. Patient appeared unresponsive and appeared to be having a fit. Ambulance called (999). Regained consciousness, still vomiting, 2 nurses helped her onto bed. Oxygen in situ. ECG taken. Unable to obtain pulse or BP. Unable to gain IV access due to abscesses on arms and previous drug use. Next of kin rung at 0915 hours at Judith’s request, unavailable, son to pass on message within half an hour. Taken to hospital by ambulance. Ambulance arrived at 0845 hours and left at 0853 hours for Pinderfields General Hospital, Wakefield.”", "23. Lots of “coffee-ground” vomit (altered blood in the stomach) was recorded as being found on her bed. Pinderfields Hospital medical records showed that she was admitted at 9.18 a.m. Her mother was informed around that time that Judith McGlinchey was in hospital and that she was ill but had stabilised. She was recorded as being", "“... drowsy but movable and responsive. Staff nurse informed me that the white cell count was raised, with abnormal kidney and liver function ... possible diagnosis of ... drug abuse”.", "24. Her mother later learned from the nursing staff that on admission Judith McGlinchey’s hair was matted with vomit.", "25. On 15 December 1998 at 8 a.m., the following entry was recorded:", "“Transferred to Ward 7; Ward 7 contacted in the middle of an emergency with her, arrested, but has been resuscitated ( sic ) and now is having a blood transfusion and an airway [made] ...”", "At 10.30 a.m.:", "“... Ward 7 contacted to ask if relatives have been informed of deterioration, they are with her now, they are going to reassess her in half an hour and if no improvement turn off the ventilator.”", "26. The hospital informed the family that Judith McGlinchey was in a critical condition and might have suffered brain damage due to the cardiac arrest. Her liver and kidneys were failing and they could not stabilise her. She was ventilated by hand as there were no beds in the Intensive Care Unit (ICU). The doctors said that they would stop the medication to see if she came round and breathed on her own and, if not, they would leave her. A Roman Catholic priest was called. The family was advised to say goodbye to Judith McGlinchey and did. She then recovered a little and at 7.15 p.m. she was moved to Bradford Royal Infirmary where there was an ICU bed available. She was stable on the ICU ward although she was kept on life support and was heavily sedated.", "27. On 16 December 1998 at 6.45 a.m., Judith McGlinchey’s condition was recorded as stable but critical. At 1 p.m. she was given a very poor prognosis. By 2 p.m. on 18 December 1998, her condition had improved a little. She remained on a ventilator, although sedation had then been stopped. She made jerking movements at times and appeared to be waking up slowly. On the night of 23 December 1998, she opened her eyes and responded to light, although the brain scan did not reveal any activity.", "28. On 27 December 1998 Judith McGlinchey was transferred to Pinderfields General Hospital to the High Dependency Unit and from there to Ward 7. It was recorded on 31 December that although her eyes were open, she remained unresponsive and in a critical condition. On 2 January 1999 her mother visited with the children. Her eyes were open but she appeared dark yellow in colour and making jerky movements associated with brain damage.", "29. On 3 January 1999 the hospital advised the family to go to the hospital immediately. The prison medical record stated that Judith McGlinchey died at 1.30 p.m.", "30. The autopsy report, following the post-mortem examination of 4 January 1999, noted that Judith McGlinchey weighed 41 kg. It stated that although one symptom of heroin withdrawal can be vomiting, the cause of the applicant’s vomiting was never fully established. Episodes of severe vomiting could have caused a tear in the upper gastro-intestinal tract (“a Mallory Weiss tear”) though this would most likely have healed by the time she died. This was the most likely cause of haemorrhaging in the stomach which could result in coffee-ground vomiting. If she had lost a substantial amount of blood, rendering her anaemic, this could have triggered the cardiac arrest. The cardiac arrest precipitated hypoxic brain damage and multi-organ failure with an inevitably fatal outcome.", "31. In a letter dated 18 January 1999, the coroner informed the family that an inquest would be held before a jury. At the inquest, which took place on 6 December, evidence was given by Dr K., the prison doctor, Sister N., the head of nursing care at the prison, the forensic pathologist who carried out the post mortem, three consultants from the Pinderfields and Bradford Hospitals who had been involved in treating Judith McGlinchey and the third applicant, Judith McGlinchey’s mother. The latter was represented during the proceedings by a solicitor who put questions to the witnesses on her behalf.", "32. During the evidence it emerged that the scales used to weigh Judith McGlinchey in prison were inaccurate and incompatible, those used on reception being two to three pounds out compared with those used subsequently in the health-care centre. Due to this discrepancy, Dr K. explained that he placed greater importance on his clinical impressions of Judith McGlinchey regarding any effect of possible weight loss, but was aware of the potential problem and had given instructions for her weight to be monitored. Notwithstanding that antibiotics had been prescribed for her septic arm, it was also indicated that these had not been given to her over a number of days – out of twenty doses that she should have received over five days, she received sixteen. The head of nursing care, Sister N., was unable to explain the omissions although she suggested that the nurse could have forgotten to sign the medicine card.", "33. Both Sister N. and Dr K. gave evidence that Judith McGlinchey did not give a clinical impression of being very ill during this period, stating that she was up and about and associating with others. Dr K. stated that her symptoms had been diminishing and that given her blood pressure, temperature, pulse and her general condition, he had no concern that she was gravely ill or that there was any need to admit her to an outside hospital. It was revealed that Dr K. did not work in the prison on weekends and was not present therefore on 12 and 13 December 1998 before Judith McGlinchey’s collapse. A part-time doctor attended on Saturday mornings and the prison depended on calling a doctor on agency if required. This explained the lack of any record in the notes for 13 December 1998. Sister N. explained that the entry in the nursing notes on 8 December which stated that Judith McGlinchey had been “locked in for education” referred to the routine procedure whereby those prisoners not participating in the education class were detained in their cells during that period.", "34. Evidence was also given by the three consultants who treated Judith McGlinchey in hospital, concerning her state on arrival and her subsequent deterioration. They were unable to say with any certainty what had caused her collapse or the bleeding in her stomach. Dr Tobin considered that she was dehydrated on arrival at hospital but, due to her disturbed state, he was unable to put in a central line which would have allowed an accurate analysis to be made. Under questioning, he stated that the signs consistent with dehydration could also have been caused by fresh bleeding but not by one episode of coffee-ground vomiting.", "35. In his summing-up to the jury, the coroner summarised the evidence as follows:", "“... for the first day Judith was admitted in the Health Care Centre ... she was then seen by the doctor, [Dr K.], on the second day, on 8 December. He examined her and made a note. She was still retained in the Health Care Centre but as the week proceeded, Judith started to become unwell. You have heard evidence of the fact that she was a heroin abuser and it was known that if she was to withdraw from heroin she might develop some unpleasant symptoms ... those symptoms might manifest themselves for example with diarrhoea and vomiting, possible stomach cramps, depleted sleep patterns and the like and in fact the information that Judith gave to her mother when she first rang rather gave you the impression that she knew that possibly she was to have a rough road ahead but she was prepared to put up with that.", "Certainly throughout that week ... it is well-documented that Judith was vomiting profusely. Although she was given medication for that on occasions it only worked for a very short time and it is fair to say that from about midweek onwards she was vomiting at some stage every day. There was also reference to the fact that she had diarrhoea and she was generally unwell.", "Her nutritional state may well have been not all that it should have been and although drinks were available for her there was no means of monitoring how much liquid she was taking in. It was not possible to monitor whether she was actually drinking and vomiting it back or not drinking at all. There was no attempt at measuring fluid during the course of that week and her vomiting actually progressed and on some occasions it was described as a lot of vomiting. It was referred to in the notes “vomiting +++” which means rather a lot and although she was seen by nursing staff every day and by the doctor on other occasions the medical staff at New Hall Prison were under the impression all along that Judith was showing no signs of being dehydrated. In other words, she was not being depleted of fluids and [Dr K.] explained in his evidence his findings and the fact that he could see no real evidence that she was dehydrated at the time and felt that even with hindsight there was no necessity for her to be admitted into hospital.", "Almost a week after her admission to [prison] on a particular morning when she woke up ... she virtually collapsed in the presence of nursing staff and she vomited a large amount of ... coffee ground vomit ...", "There was some discussion during the evidence ... as to whether Judith had actually had a cardiac arrest at that time. In fact all the doctors who subsequently examined her ... felt that that was not likely to have been the case, although there was certainly a collapse and although she may well have lost a fair amount of blood as a consequence of that. There was no evidence at that particular time that she had experienced a cardiac arrest.", "She was taken by ambulance to Pinderfields Hospital ... where she was immediately placed under the care of Dr Tobin ... His working diagnosis at the time was that Judith may well have some degree of liver failure and that there could also be some ... bleeding from the upper gastro-intestinal tract, the oesophagus ... because of the fact that she had vomited the coffee ground vomit.", "The evidence of Dr Naomi Carter, the Pathologist ... found some residual material in Judith’s stomach which could well have resembled blood or changed blood but ... was at pains to explain that she could find no source of any bleeding within Judith’s internal organs ... one possible likely cause of the bleed that had produced itself in the coffee ground vomiting was that the retching which she had sustained... might have caused a small tear either in her oesophagus at the point where it reaches the stomach or alternatively in the lining of the stomach itself ... that is a medical condition known as a Mallory Weiss tear but she could not find evidence of that. Her view was that possibly that small tear might well have healed by the time that she saw Judith’s body which was obviously by then some days later. That is the only explanation as to why there was any bleeding ... The significance of that bleed is appropriate because it is highly likely that as a consequence ... Judith will have lost some volume of blood which will have meant that her heart might have had to work harder in order to overcome that and certainly when she was at Pinderfields Hospital she was extremely unwell.", "Dr Tobin was of the view that he felt that Judith was in fact dehydrated but he could not prove that specifically because you will recall from Dr Tobin’s evidence that it was not possible for him to insert a central line. Had he been able to do that then it might have been that could have been used as a diagnostic tool ... certainly Dr Tobin was of the opinion that there would seem to be some suggestion that Judith was dehydrated, notwithstanding, according to the medical staff at New Hall, they felt that that was not the case as the week had gone on.", "On the morning of 15 December ... unfortunately Judith experienced a cardiac arrest and it was felt that as a consequence of that she had become deprived of oxygen and ... there would have been a deprivation of oxygen to her brain which would have caused her to sustain what was called hypoxic brain damage.", "... The post-mortem evidence ... explained the cause of death and Dr Carter was able to confirm that the cause of death was hypoxic brain damage, deprivation of oxygen to the brain, caused by a cardiac arrest which Dr Carter felt was as a consequence of an upper gastro-intestinal haemorrhage of an undetermined cause ...”", "36. The coroner invited the jury to return a verdict of death through natural causes or an open verdict. The jury unanimously returned an open verdict.", "37. Legal aid was granted to the three applicants to pursue domestic remedies for compensation. Their solicitors sent a notice of issue, under cover of a letter dated 12 February 1999, to the Treasury Solicitor requesting disclosure of medical and prison records in view of a claim for damages with respect to the death of Judith McGlinchey.", "38. In a report dated 13 September 2000, the doctor consulted by the applicants stated, inter alia, as follows:", "“It is my understanding that repeated vomiting can be a symptom of heroin withdrawal and while I have no personal experience in managing people undergoing a detoxification programme, I would, however, be very unhappy about managing anyone who was vomiting repeatedly, without the use of intravenous fluids, the intravenous administration of anti-emetic drugs and the facility to monitor blood chemistry frequently.", "... Judith was severely under weight.", "Her poor overall nutritional state was almost certainly longstanding and probably connected to her heroin addiction but any prolonged bout of vomiting, from whatever cause, was likely to cause a serious imbalance of her blood chemistry very quickly. Apart from electrolyte disturbance and dehydration, she would be very likely to have had difficulty maintaining an adequate blood sugar level, as she would have had no reserves in the form of stored carbohydrate substances within the body, that could have been utilised, when she was unable to absorb adequate nutrients from her gastrointestinal system due to her persistent vomiting.", "In such circumstances a vicious circle can occur. A low blood sugar level itself can cause more nausea and vomiting. Multiple metabolic pathways can be interfered with. The subject can become irritable. The level of consciousness may be severely reduced and coma can even occur.", "Intravenous access is often very difficult in intravenous drug abusers, even for clinicians such as anaesthetists who routinely insert needles. Central lines are likely to be needed. These are special long catheters, often with more than one lumen, that are inserted into major blood vessels close to the heart. I would not expect the average prison medical officer to be proficient in inserting such a line.", "It is preferable for these lines to be inserted in hospital, by personnel with the necessary skills. After insertion, the correct positioning ... needs to be checked by X ‑ ray before it is used to administer drugs and fluids. Once inserted their maintenance requires skilled, aseptic nursing care ...", "I would be inclined to attribute the agitation and apparent lack of cooperation displayed by Judith after her admission ... and before her second collapse to cerebral irritation. Cerebral irritation is often seen following a period of cerebral hypoxia. Certainly, a degree of cerebral hypoxia probably occurred at the time of her collapse [in prison] and continued up to the time that resuscitation was underway at Pinderfields ...", "The bleeding that occurred, following a period of persistent and violent vomiting, could certainly have been caused by a Mallory Weiss tear as suggested ... in the autopsy report.", "If Judith had been admitted to hospital earlier, it might still have proved difficult to control the vomiting and, in view of her poor general and nutritional state, if the cause of her bleeding was a Mallory Weiss tear, this might still have occurred, but she would not have had such a degree of dehydration and/or biochemical disturbance, and the consequences of such an occurrence would probably have been less serious.", "Alternatively, if her vomiting had been brought under control at an earlier stage, the subsequent sad sequence of events might have been prevented.”", "39. In his opinion of 30 October 2000, counsel advised the applicants in the light of this medical report that there was insufficient evidence to establish the necessary causal link between Judith McGlinchey’s death and the allegedly negligent care afforded to her in custody. They did not pursue their claims in negligence." ]

[ "II. RELEVANT DOMESTIC LAW", "40. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. An exacerbation of an existing condition constitutes such injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation, do not entitle a plaintiff to damages. Any personal injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death.", "41. Claims arising from the death of an individual caused by negligence are brought under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The former enables those who were financially dependent upon the deceased to recover damages for the loss of dependency. The scheme of the 1976 Act is compensatory and save for the sum of 7,500 pounds sterling for bereavement to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The latter enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "42. Article 3 of the Convention provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties’ submissions", "43. The applicants complained that the prison authorities inflicted inhuman and degrading treatment on Judith McGlinchey during her detention in prison. They submitted that the prison authorities failed to administer her medication for her asthma and that they did not give her medication for her heroin withdrawal. On one occasion, the prison authorities deliberately omitted giving her an injection as a punishment for her difficult behaviour. The prison authorities also permitted her to dehydrate and vomit unnecessarily and delayed unjustifiably in transferring her to a civilian hospital where she could be expertly treated. She was forced to clean up the vomit in her cell and was left lying in her own vomit. They drew attention to Judith McGlinchey’s vulnerability, the period of time over which she suffered serious symptoms and the fact that she was not a high-security risk prisoner.", "44. The Government submitted that Judith McGlinchey received appropriate medication for her withdrawal symptoms and was transferred to hospital as soon as it became clear that her situation required more intensive medical treatment than the prison could provide. In particular, she was provided with anti-emetic medication, which was, pursuant to the prison doctor’s instructions, injected on a number of occasions. When it was not administered on 8 December 1998, this was on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. There was no evidence that she was left to clean up her own vomit, the practice being for nursing staff to take care of any such necessities. While it was noted that she was soiled with vomit on arrival at the hospital, this was explained by the speed with which she had been rushed to hospital when she collapsed, not by a deliberate refusal to clean her.", "B. The Court’s assessment", "1. General principles", "45. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1517, § 52).", "46. Under this provision the State must ensure that a person is detained in conditions which are compatible with respect for her human dignity, that the manner and method of the execution of the measure do not subject her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, her health and well-being are adequately secured by, among other things, providing her with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq., and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI).", "2. Application in the present case", "47. The Court observes that the applicants have raised a number of complaints that the prison authorities inflicted inhuman and degrading treatment on Judith McGlinchey, while the Government have maintained that she received appropriate medication for her withdrawal symptoms and was transferred to hospital as soon as it became clear that her situation required more intensive medical treatment than the prison could provide.", "48. As regards the allegation that the prison authorities failed to provide Judith McGlinchey with medication for her heroin withdrawal as punishment, the Court notes that it appears from the medical records that the prescribed drug Lofexidine was not administered at 12 noon on 8 December 1998. Although the applicants complained that this was withheld for misbehaviour, the Government submitted that it was in fact omitted on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. This is supported by the medication notes which indicated that blood pressure had to be monitored with this drug and a drop in Judith McGlinchey’s blood pressure had been recorded at this time. The notes also showed that she had been seen by the medical officer that morning and the drug record was signed by the doctor.", "49. While there is a reference in the nursing notes, after the entry about omitting the medication, to Judith McGlinchey throwing a cup of tea across the room and then being “locked in for education”, it was explained at the inquest that it was normal procedure for prisoners who were not going to classes to be detained in their rooms during that period. The Court finds therefore that it is not substantiated that relief for her withdrawal symptoms was denied to Judith McGlinchey as a punishment.", "50. As regards the allegation that Judith McGlinchey was left to lie in her vomit, the Government pointed out that this appears to derive from the comments of the hospital staff that when Judith McGlinchey arrived at the hospital her hair and clothing were matted with vomit. The medical and nursing notes indicated that Judith McGlinchey had not been seen to vomit during the night and that she collapsed, vomiting, in the morning. The Court does not find that in the urgency of her immediate transferral to hospital the failure to ensure that Judith McGlinchey was adequately cleaned discloses any element of treatment that could be characterised as degrading. As regards complaints made to her mother that she was having to clean up her own vomit, there is no substantiation of this in the hospital or prison records although one entry refers to Judith McGlinchey refusing to clean her cell. The Government, relying on a statement by the head of nursing care, submitted that this was a general tidying requirement, not in response to a vomiting incident. The Government asserted that the practice was for nurses to clean any vomit which landed on the floor or elsewhere in the cell. The Court finds that there is insufficient material before it to reach any findings on this matter.", "51. As regards the allegation that asthma medicine was not administered, the Court notes that the nursing notes indicate that inhalers were provided on 7 December 1998 during the night when Judith McGlinchey was seen to be wheezing. In so far as the applicants also mentioned irregularity in administering the antibiotic medicine for Judith McGlinchey’s arm, it appears that out of twenty doses over a five day period, some four were omitted. Sister N. was unable to provide an explanation for this at the inquest, although she suggested the possibility that the nurse in question had forgotten to complete the drugs record. In either case, it indicates a regrettable lapse in procedure. However, the Court does not find any evidence in the material before it to show that this failure had any adverse effect on Judith McGlinchey’s condition or caused her any discomfort.", "52. Finally, the Court considered the complaints that not enough was done, or done quickly enough, by way of treating Judith McGlinchey for her heroin withdrawal symptoms, preventing her suffering or a worsening of her condition.", "53. The Court observes that she was screened by a nurse on entry to the prison on 7 December 1998. On 8 December 1998 she was seen by Dr K., the prison doctor who set up a course of treatment for her various problems. For the heroin withdrawal symptoms, he initially prescribed a withdrawal drug, Lofexidine. One dose of this drug was omitted at midday due to her low blood pressure. On 10 December 1998 she was seen again by Dr K., who prescribed an intra-muscular injection for the continuing withdrawal symptoms. He found no signs that she was dehydrated and placed more importance on his clinical impressions than her apparent drop in weight from 50 kg to 43 kg since there was known to be a discrepancy between the scales used on admission and those in the health-care centre. He was aware however that there was a potential problem and gave instructions for her weight to be monitored. On 11 December 1998 she was examined again by Dr K., who found no signs of dehydration and considered that her condition was generally stable. He ordered a further injection which was observed to have some effect as she was able to keep down fluids during the rest of the day. Oral doses of the anti-emetic drug were prescribed to continue over the weekend. The nursing notes indicate that on occasion during this period the nurses administered mild anti-nausea medication to assist Judith McGlinchey with her symptoms and were encouraging her to take fluids.", "54. While it appears therefore that Judith McGlinchey’s condition from 7 to 12 December 1998 was subject to regular monitoring, with the medical and nursing staff taking steps to respond to Judith McGlinchey’s withdrawal symptoms, the Court notes that during this period she was vomiting repeatedly, taking very little food and losing considerable weight in an undefined amount. Although injections had been given twice, these had had, at most, a short-term effect and by the evening of 11 December 1998 she was vomiting again. The evidence of any improvement in her condition by this point is, in the Court’s view, slim.", "55. In the two following days, the weekend, according to the staffing arrangements at the prison, Dr K. was not present. A locum doctor visited the prison on the Saturday morning, 12 December, but the records do not indicate that he saw Judith McGlinchey. If a doctor was required at any other time over the weekend, the nursing staff were expected to call out a doctor or arrange for transfer to hospital. It appears therefore that Judith McGlinchey was not examined by a doctor for two days. On 12 December 1998 her temperature, blood pressure and pulse were observed to be normal. She was however continuing to vomit and her weight was recorded as dropping to 40 kg, a further 3 kg decrease since 9 December and a possible 10 kg decrease since her admission five days earlier. Notwithstanding this further deterioration, the nursing staff did not find any cause for alarm or the need to obtain a doctor’s opinion on her condition.", "56. The Government have pointed to positive signs over this period – that she slept better during the night and on 13 December took a small meal. However, she vomited on both days and after the meal in question. Dr K. emphasised that, throughout, her vital signs were within the normal range, and that a person suffering serious dehydration would be expected to show lassitude and identifiable physical symptoms which were not present in Judith McGlinchey. However, at the inquest, Dr Tobin considered that, although it had not been established by specific analysis that Judith McGlinchey was dehydrated on entry to hospital due to an inability to insert a central line, there were strong indications to that effect. While the findings could be accounted for by significant blood loss, one episode of coffee-ground vomiting would not provide an adequate explanation.", "57. The evidence indicates to the Court that by the morning of 14 December 1998 Judith McGlinchey, a heroin addict whose nutritional state and general health were not good on admission to prison, had suffered serious weight loss and was dehydrated. This was the result of a week of largely uncontrolled vomiting symptoms and an inability to eat or hold down fluids. This situation, in addition to causing Judith McGlinchey distress and suffering, posed very serious risks to her health, as shown by her subsequent collapse. Having regard to the responsibility owed by prison authorities to provide the requisite medical care for detained persons, the Court finds that in the present case there was a failure to meet the standards imposed by Article 3 of the Convention. It notes in this context the failure of the prison authorities to provide accurate means of establishing Judith McGlinchey’s weight loss, which was a factor that should have alerted the prison to the seriousness of her condition, but was largely discounted due to the discrepancy of the scales. There was a gap in the monitoring of her condition by a doctor over the weekend when there was a further significant drop in weight and a failure of the prison to take more effective steps to treat Judith McGlinchey’s condition, such as her admission to hospital to ensure the intake of medication and fluids intravenously, or to obtain more expert assistance in controlling the vomiting.", "58. The Court concludes that the prison authorities’ treatment of Judith McGlinchey contravened the prohibition against inhuman or degrading treatment contained in Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "59. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties’ submissions", "60. The applicants submitted that there was no adequate remedy for their complaints about the treatment of Judith McGlinchey in prison, or a remedy that would address the defects in management and policy which allowed the neglect and ill-treatment. Any cause of action in negligence was dependent on establishing the necessary causal link between the negligent acts and the death and/or personal injury, which was not present in this case. The treatment in issue was nonetheless inhuman and degrading treatment contrary to Article 3 of the Convention. No other remedies, which could provide compensation and an acknowledgement of the breach, existed.", "61. The Government stated that remedies were available as required by Article 13 of the Convention. Judith McGlinchey could have used the internal prison complaints system to complain about her treatment. Intolerable conditions of detention were also the proper basis for an application for judicial review. The applicants had available to them a range of causes of action, including negligence and misfeasance in public office. This was not a case where national law did not provide a viable cause of action at all. The fact that the applicants could not prove negligence on the facts did not mean that there was no remedy available.", "B. The Court’s assessment", "62. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106).", "63. In the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V).", "64. On the basis of the evidence adduced in the present case, the Court has found that the respondent State is responsible under Article 3 of the Convention for inhuman and degrading treatment suffered by Judith McGlinchey prior to her collapse in custody. The applicants’ complaints in this regard are therefore “arguable” for the purposes of Article 13 in connection with Article 3 of the Convention (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52; Kaya, cited above, pp. 330-31, § 107; and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113).", "65. While the Government referred to internal prison remedies as being available to Judith McGlinchey to complain about any ill-treatment prior to her death, the Court observes that they would not provide any right to compensation for any suffering already experienced. The Court has already found, in its decision on admissibility, that no action in negligence could be pursued in the civil courts where the impugned conduct fell short of causing physical or psychological injury. It is not apparent that, in an action for judicial review, which Judith McGlinchey could have brought alleging that the prison had failed in its duty to take reasonable care of her in custody and which could have provided a means of examining the way in which the prison authorities carried out their responsibilities, damages could have been awarded on a different basis. Although the Government argued that this inability to pursue a claim for damages flowed from the facts of the situation and not from any omission in the law, it remains the case that no compensation is available under English law for the suffering and distress which has been found above to disclose a breach of Article 3 of the Convention.", "66. The question arises whether Article 13 in this context requires that compensation be made available. The Court itself will often award just satisfaction, recognising pain, stress, anxiety and frustration as rendering appropriate compensation for non-pecuniary damage. In the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies.", "67. In this case therefore, the Court concludes that Judith McGlinchey, or the applicants acting on her behalf after her death, should have been able to apply for compensation for the non-pecuniary damage suffered by her. As there was no remedy which provided a mechanism to examine the standard of care given to Judith McGlinchey in prison and the possibility of obtaining damages, there has, accordingly, been a breach of Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "68. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "69. The applicants claimed damages for the treatment of Judith McGlinchey for her estate and in respect of their own shock and distress at the suffering experienced by Judith McGlinchey. They submitted that she had been given insufficient and inadequate medical care and was thereby put through unnecessary suffering, including seven days of continued vomiting, an inability to eat or drink and acute fear and mental distress, including the belief that she was going to die. They also referred to their belief that she had been forced to clean up her own vomit and punished by the withdrawal of medication. They also referred to the distress and anguish which they suffered by the realisation of the conditions in which their daughter/mother spent her last conscious days and hours. They claimed a sum of 20,000 pounds sterling (GBP).", "70. The Government made no comment on these claims.", "71. The Court notes that it has made a finding of a violation of Article 3 in respect of shortcomings in the treatment which Judith McGlinchey received while in prison. It did not find it established however that Judith McGlinchey had been forced to clean up her vomit or that medication had been withheld by way of punishment. Noting that much of Judith McGlinchey’s suffering derived from the heroin withdrawal itself, but that the failure of the prison authorities to take more effective steps to combat her withdrawal symptoms and deteriorating condition must have contributed to her pain and distress, the Court decides, making an assessment on an equitable basis, to award a sum of 11,500 euros (EUR) in respect of Judith McGlinchey’s estate and EUR 3,800 each to the applicants, making a total of EUR 22,900.", "B. Costs and expenses", "72. The applicants claimed GBP 5,480.54 in respect of legal costs incurred in domestic procedures. This included the costs of being represented at the inquest and seeking advice about the cause of Judith McGlinchey’s death and the existence of any domestic remedies. They claimed GBP 844.43, inclusive of value-added tax, in respect of costs and expenses in bringing the case to the Court in Strasbourg. This made a total claim of GBP 6,324.97", "73. The Government made no comment on these claims.", "74. The Court observes that the costs incurred in obtaining legal advice and attending the inquest were connected at least in part in regard to issues as to the cause of Judith McGlinchey’s death and any possible responsibility of the authorities. The complaint under Article 2 of the Convention however was not pursued before the Court. Making an assessment on an equitable basis, the Court awards EUR 7,500 under this head.", "C. Default interest", "75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1955. At the time of lodging his application, he was detained in Kaisheim Prison. He was released subsequently.", "A. The applicant ’ s medical condition and treatment received in detention", "6. The applicant has been continuously addicted to heroin since 1973, when he was aged 17. He has also been suffering from hepatitis C since 1975 and has been HIV - positive since 1988. He has been considered 100% disabled and has been receiving an employment disability pension since 2001. He has tried to overcome his addiction to heroin with various types of treatment (including five courses of in-house drug rehabilitation therapy ), all of which failed. From 1991 to 2008 the applicant ’ s heroin addiction was treated with medically prescribed and supervised drug substitution therapy. Since 2005, the applicant had reduced the dosage of his drug substitution medication ( Polamidon) and consumed heroin in addition to that medication.", "7. In 2008 the applicant was arrested on suspicion of drug trafficking and taken in detention on remand in Kaisheim Prison, where his drug substitution treatment was interrupted against his will. On 3 June 2009 the Augsburg Regional Court convicted the applicant of drug trafficking, sentenced him to three years and six months ’ imprisonment and, having regard to a previous conviction, to another two years and six months ’ imprisonment. It further ordered the applicant ’ s placement in a drug detoxification facility, to be executed after a period of six months ’ detention in prison. The applicant was still not provided with substitution treatment for his heroin addiction. On 10 December 2009 he was transferred to a drug rehabilitation centre in Günzburg, Bavaria, where he underwent abstinence ‑ based treatment for his addiction, without additional substitution treatment.", "8. On 19 April 2010 the Memmingen Regional Court declared the applicant ’ s detention in the detoxification facility terminated and ordered his retransfer to prison. In a decision dated 25 June 2010 the Munich Court of Appeal dismissed the applicant ’ s appeal. Having regard, in particular, to the views expressed by the applicant ’ s treating doctors, the court considered that it could no longer be expected with sufficient probability that the applicant could be cured from his drug addiction or could be prevented for a considerable time from relapsing into drug abuse. He had secretly consumed methadone at the clinic and lacked motivation to lead a drug-free life.", "9. The applicant was transferred back to Kaisheim Prison on 30 April 2010. The prison doctors gave him various painkillers for chronic pain resulting from his polyneuropathy, on a daily basis. During his detention, the pain in his feet, neck and spine became such that, at least during certain periods, he spent most of his time in bed.", "10. The applicant was examined by an external doctor for internal medicine, H., on the prison authorities ’ request in October 2010. H. did not consider any changes in the treatment of the applicant ’ s HIV and hepatitis C infections necessary. Having regard to the applicant ’ s chronic pain linked to his long-term drug consumption and polyneuropathy, he suggested that the prison medical service reconsider the possibility of drug substitution treatment. He subsequently confirmed that the applicant should be examined by a doctor specialised in drug addiction therapy to that end.", "11. The applicant also obtained, on his request, an opinion drawn up by an external doctor specialised in drug addiction treatment (B.) dated 27 July 2011, on the basis of the written findings of doctor H. and the Kaisheim Prison doctor ’ s and authorities ’ findings and statements, but without having been able to examine the applicant in person. B. considered that from a medical point of view, drug substitution treatment had to be provided to the applicant. He explained that in accordance with the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts ( Richtlinien der Bundesärztekammer zur Durchführung der substitutionsgestützten Behandlung Opiatabhängiger ) of 19 February 2010 (see paragraph 30 below), drug substitution therapy was internationally recognised as being the best possible therapy for long-standing opioid addicts. Detoxification caused the person concerned serious physical strain and extreme mental stress and should only be attempted in cases of a very short opioid dependence. Drug substitution therapy prevented a deterioration of the patient ’ s state of health and a high risk to life, which arose particularly after forced abstinence in detention. It further prevented the spreading of infectious diseases such as HIV and hepatitis C. It had to be clarified whether, in the applicant ’ s case, further treatment for the hepatitis C from which he suffered was necessary.", "B. The proceedings at issue", "1. The decision of the prison authorities", "12. By submissions dated 6 June 2011, which he supplemented subsequently, the applicant made a request to the Kaisheim prison authorities for treatment with Diamorphin, Polamidon or another heroin substitute for his heroin addiction. Alternatively, he requested that the question of whether such substitution treatment was necessary be examined by a drug addiction specialist.", "13. The applicant claimed that drug substitution treatment was the only adequate treatment for his medical condition. Under the relevant Guidelines of the Federal Medical Association for the Substitution Treatment of Opiate Addicts, drug substitution treatment, which he had received prior to his detention, was the required standard treatment for his condition and had to be continued during his detention.", "14. The applicant claimed that, as confirmed by doctor H., the serious chronic neurological pain from which he was suffering could be considerably alleviated by drug substitution treatment, as had been the case during his previous substitution treatment. Having been addicted to heroin for almost forty years, he stood hardly any chance of leading a totally drug ‑ free life on release from prison. His rehabilitation could therefore better be furthered by providing him drug substitution treatment. While undergoing such treatment previously, he had been able to lead a relatively normal life and to complete training as a software engineer.", "15. Furthermore, referring to doctor B. ’ s opinion, the applicant claimed that he was in need of Interferon therapy in order to treat his hepatitis C infection. In view of his poor physical and mental health, it was impossible to carry out such treatment without simultaneous drug substitution therapy. Substitution also helped to protect other prisoners from infection when using the same needles as he did for the consumption of drugs and diminished the trafficking and uncontrolled consumption of illegal drugs in prison. He also considered that the prison doctors did not have specialist knowledge in drug addiction treatment and asked to be examined by an external specialist.", "16. After the prison authorities ’ first decision dismissing the applicant ’ s application was quashed by the Augsburg Regional Court on 4 October 2011 for lack of sufficient reasoning, the prison authorities, on 16 January 2012, again dismissed the applicant ’ s request.", "17. The prison authorities argued that substitution treatment was neither necessary from a medical point of view nor a suitable measure for the applicant ’ s rehabilitation. With regard to the medical necessity of drug substitution therapy, the prison authorities, relying on prison doctor S. ’ s statement, considered that drug substitution therapy was not a necessary treatment for the purposes of section 60 of the Bavarian Execution of Sentences Act (see paragraph 27 below). They found that the applicant, who was severely addicted to drugs, had not received drug substitution treatment prior to his current detention in Kaisheim Prison. He had been placed in a drug rehabilitation centre for five months before his transfer to Kaisheim Prison, where he had been treated by medical experts with considerable knowledge of drug addiction treatment. The applicant had neither been given substitution treatment in the clinic, nor had the doctors recommended substitution treatment in prison. After three years in detention, he no longer suffered from physical withdrawal symptoms. Moreover, his condition with regard to his HIV and hepatitis C infections was stable and did not require any therapy for which substitution treatment was a necessary precondition. As suggested by the prison doctor, the applicant should use the opportunity to wean himself off opioids, such as heroin and its substitutes, while in prison, as it was very difficult to obtain drugs there.", "18. With regard to the applicant ’ s social rehabilitation and treatment (sections 2 and 3 of the Bavarian Execution of Sentences Act, see paragraph 27 below), the prison authorities added that the main reason for which addicts underwent drug substitution therapy was to prevent them from becoming impoverished and from becoming involved in drug-related criminality. In prison, these risks were not present. Furthermore, the applicant had already shown that substitution therapy while he was at liberty had not prevented him from consuming other drugs or committing crimes, which had been caused by his antisocial nature. Moreover, the applicant had also consumed drugs while in detention. Therefore, providing him substitution treatment could lead to a risk to life and limb.", "2. The proceedings before the Augsburg Regional Court", "19. On 26 January 2012 the applicant, relying on the reasons he had submitted to the prison authorities, appealed against the decision of the prison authorities to the Augsburg Regional Court. He further submitted that the authorities of Kaisheim Prison, where no substitution treatment had ever been provided, had omitted to examine the medical necessity of drug substitution therapy under the relevant criteria laid down, in particular, in the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts, which were clearly met in his case. He further argued that under the applicable administrative rules for substitution treatment in prison in the Land of Baden-Württemberg, he would be provided with drug substitution therapy, which is carried out in the prisons of the majority of the German Länder.", "20. On 28 March 2012 the Augsburg Regional Court, endorsing the reasons given by the prison authorities, dismissed the applicant ’ s appeal. It added that it was not necessary to obtain the opinion of a drug addiction expert. The prison doctors of Kaisheim Prison had sufficient training to decide on the medical necessity of drug substitution therapy, irrespective of the fact that drug substitution therapies might never have been used in that prison. The administrative rules for substitution treatment in prison applicable in the Land of Baden-Württemberg were irrelevant, given that Kaisheim Prison was situated in the Land of Bavaria.", "3. The proceedings before the Munich Court of Appeal", "21. On 4 May 2012 the applicant lodged an appeal on points of law with the Munich Court of Appeal. He submitted that the Regional Court ’ s failure to investigate sufficiently whether drug substitution treatment was necessary, under the applicable Federal Medical Association ’ s Guidelines and with the help of an independent doctor specialised in drug addiction treatment, had breached section 60 of the Bavarian Execution of Sentences Act and Article 3 of the Convention. Refusing him the alleviation of his intense neurological pain with an existing and medically necessary treatment constituted inhuman treatment.", "22. On 9 August 2012 the Court of Appeal dismissed the appeal as ill ‑ founded. In the court ’ s view, the applicant had failed to show why drug substitution therapy was the one specific medical treatment he needed. He had further failed to prove that the prison doctors of Kaisheim Prison were not qualified to decide about the medical necessity of heroin substitution. The applicant ’ s objection against the Court of Appeal ’ s decision was rejected.", "4. The proceedings before the Federal Constitutional Court", "23. On 10 September 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that his right to respect for his physical integrity under the Basic Law had been breached because he was denied drug substitution therapy, the only suitable therapy to treat his chronic pain, which would make Interferon therapy possible and allow him to reduce his craving for heroin and lead a “normal” everyday prison life without isolation. He further complained that his right to be heard under the Basic Law had been violated as the domestic courts had not taken into consideration the medical opinions he had submitted to show that a substitution treatment was necessary and had failed to consult an independent specialised expert.", "24. On 10 April 2013 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint without giving reasons ( file no. 2 BvR 2263/12).", "C. Subsequent developments", "25. On 17 November 201 4 the Kaisheim prison authorities rejected the applicant ’ s fresh request to be provided with substitution treatment in preparation for his release. The applicant ’ s counsel was advised to ensure that the applicant was taken to a drug rehabilitation clinic immediately on his release in order to prevent him from taking an overdose of heroine as soon as he was at liberty.", "26. On 3 December 2014 the applicant was released. When examined by a doctor on 5 December 2014 he tested positive for methadone and cocaine. The doctor confirmed that the applicant would receive drug substitution treatment from 8 December 2014 onwards." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Provisions of the Bavarian Execution of Sentences Act", "27. The relevant provisions of the Bavarian Execution of Sentences Act ( Bayerisches Strafvollzugsgesetz ) concerning the examination of applications for drug substitution therapy read as follows:", "Section 2: Objectives of the execution of sentences", "“ The execution of a prison sentence serves to protect the public from further crime. It shall enable prisoners to lead a socially responsible and law-abiding life in the future (obligation of treatment). ”", "Section 3: Treatment during the execution of a sentence", "“ Treatment shall include all measures which may promote a crime-free life in the future. Its purpose is to prevent the commission of further crime and to protect victims. ... ”", "Part 8: Health careSection 58: General Rules", "“ (1) The physical and mental health of the prisoner must be ensured. ... ”", "Section 60: Medical Treatment", "“ Prisoners are entitled to medical treatment if such treatment is necessary in order to detect or cure an illness, to prevent the aggravation of an illness or to alleviate its symptoms. Medical treatment includes:", "1. treatment by a doctor,", "...", "4. the provision of medicine, dressings, and other health aids,", "... ”", "B. Legal provisions and guidelines concerning drug substitution treatment", "28. Under section 13 §§ 1 and 3 of the Narcotic Substances Act ( Betäubungsmittelgesetz ), doctors may only provide a person with drugs covered by the Act (notably methadone) if their use can be justified. The Federal Government is authorised to issue a Regulation covering the prescription and provision of such drugs, including the prescription of substitution drugs for drug addicts.", "29. Section 5 of the Prescription of Narcotic Substances Regulation ( Betäubungsmittel-Verschreibungsverordnung ), issued in accordance with section 13 of the Narcotic Substances Act, lays down rules on the prescription of narcotic substances for substitution treatment. Under section 5 § 1, the treatment of drug addicts with substitution drugs serves to treat a patient ’ s drug addiction with the aim of gradually restoring his abstinence from narcotic substances, including the improvement and stabilisation of the patient ’ s state of health. It may also serve to support the treatment of a serious illness the patient is suffering from alongside his or her drug addiction. Section 5 § 2 provides that a doctor may prescribe a substitution drug under the conditions laid down in section 13 of the Narcotic Substances Act unless, in particular, there are indications that the patient is consuming substances of a type or quantity endangering the objective of the substitution treatment. In accordance with section 5 § 11, the Federal Medical Association may issue guidelines codifying the recognised state of the medical art with regard to various aspects of drug substitution treatment. Compliance with the state of the medical art shall be assumed if and insofar as the guidelines in this respect were observed.", "30. Relying on section 5 § 11 of the Prescription of Narcotic Substances Regulation, the Federal Medical Association issued its Guidelines for the Substitution Treatment of Opiate Addicts of 19 February 2010. In the Guidelines ’ preamble, it is clarified that opiate addiction is a serious chronic disease requiring medical treatment and that substitution treatment was a scientifically tested form of therapy for manifest opiate addiction. The aims of drug substitution therapy included securing the survival of the patient, the reduction of the use of other drugs, the stabilisation of the patient ’ s health and the treatment of further diseases, the participation in social and work life and a drug-free life. Paragraph 2 of the Guidelines provides that drug substitution treatment is indicated in cases of manifest opiate addiction as defined by the International Classification of Diseases if, in the circumstances of the case, it has more prospects of success than abstinence ‑ based therapies. In individual reasoned cases, drug substitution treatment may also be started in case of drug addicts who are currently abstinent but placed in a protective environment such as a prison. Paragraph 8 of the Guidelines provides that in case of imprisonment, the continuity of the substitution treatment by the institution in which the patient is placed is to be secured. Under paragraph 12 of the Guidelines, substitution treatment shall be discontinued if it is accompanied by a continuous, problematic consumption of other dangerous substances.", "C. Research on drug substitution treatment", "31. A study commissioned by the Federal Ministry of Health and carried out by the University of Dresden, published in 2011, on Predictors, Moderators and Outcome on Substitution Treatments (the PREMOS study) confirmed that opioid addiction was a serious chronic disease. Drug substitution treatment had been tested for the first time in the United States of America in 1949 and has been considered subsequently as both an established and the best possible therapy for opioid addiction. One of the commonly used medications for drug substitution therapy is methadone, a synthetic opioid with strong pain-killing effects. Long-term substitution treatment had proved effective in that the primary aims of that treatment ( that is, continuity of treatment, securing survival, reduction of drug consumption, stabilisation of comorbidity and social participation) were attained. Stable abstinence from opioids was a rare phenomenon in the long run ( attained by less than 4 % of the opioid addicts examined ) and was associated with considerable risks (notably death). The termination of substitution treatment should therefore be envisaged only if, in particular, there was a stable motivation and a good psycho-social environment and treatment of the patient (see pp. 4 -15 and 125-133 of the study report).", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS", "32. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of the Council of Europe issues the CPT standards, in which the “substantive” sections of the CPT ’ s yearly General Reports are summarised. In its CPT standards as established at the time of the applicant ’ s detention ( CPT/Inf/E (2002) 1 ‑ Rev. 20 10 ), which have not been amended since then in respect of the issues relevant here (see CPT/Inf/E (2002) 1 ‑ Rev. 2015), the CPT made the following relevant findings and recommendations:", "“Health care services in prisons", "Extract from the 3 rd General Report [CPT/Inf (93) 12], published in 1993", "31. ... the CPT wishes to make clear the importance which it attaches to the general principle - already recognised in most, if not all, of the countries visited by the Committee to date - that prisoners are entitled to the same level of medical care as persons living in the community at large. This principle is inherent in the fundamental rights of the individual. ...", "Equivalence of care", "i) general medicine", "38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. ”", "33. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, adopted on 11 January 2006 at the 952 nd meeting of the Ministers ’ Deputies (“the European Prison Rules”), provides a framework of guiding principles for the treatment of persons deprived of their liberty. The relevant extracts in Part III of the appendix to the Recommendation, on “Health”, provide:", "“Organisation of prison health care", "... 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.", "40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.", "40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.”", "34. Recommendation no. R (98) 7 of the Committee of Ministers to member States concerning the ethical and organisational aspects of health care in prison, adopted on 8 April 1998 at the 627 th meeting of the Ministers ’ Deputies, provides, in its Appendix, in so far as relevant :", "“7. The prison administration should make arrangements for ensuring contacts and co-operation with local public and private health institutions. Since it is not easy to provide appropriate treatment in prison for certain inmates addicted to drugs, alcohol or medication, external consultants belonging to the system providing specialist assistance to addicts in the general community should be called on for counselling and even care purposes. ...", "Equivalence of care", "10. Health policy in custody should be integrated into, and compatible with, national health policy. A prison health care service should be able to provide medical, psychiatric and dental treatment and to implement programmes of hygiene and preventive medicine in conditions comparable to those enjoyed by the general public. Prison doctors should be able to call upon specialists. If a second opinion is required, it is the duty of the service to arrange it. ...", "45. The treatment of the withdrawal symptoms of abuse of drugs, alcohol or medication in prison should be conducted along the same lines as in the community.”", "35. According to the Policy paper on preventing risks and reducing harm linked to the use of psychoactive substances adopted in November 2013 by the Permanent Correspondents of the Co-operation Group to Combat Drug Abuse and Illicit trafficking in Drugs (Pompidou Group) of the Council of Europe (P-PG (2013) 20), there is a growing recognition that drug dependence must be understood and treated as a chronic, preventable, treatable and recoverable disease. At the same time national differences in political acceptance, interpretation and variance in the type of feasible measures, as well as access to them and their availability, persist. Despite these differences, there is a general prevailing consensus that abstinence and recovery-oriented policies need to be supplemented by measures that can demonstrably reduce the harms and risks of psychoactive substance use (ibid., § 10).", "IV. RELEVANT STATISTICAL DATA", "36. According to the data collected by Harm Reduction International (HRI), a non-governmental organisation, in 2012 opioid substitution therapy programmes were operational in the community in 41 of the Council of Europe Member States. No such programmes existed in Andorra, Monaco, the Russian Federation and Turkey (in the latter country, they were introduced by 2015); no statistical data was available in respect of Liechtenstein and San Marino. In 2012, opioid substitution programmes were available also in prison in 30 of the Council of Europe Member States whereas no such treatment was available in prison in 15 of the Council of Europe Member States (Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Greece, Iceland, Lithuania, Monaco, the Russian Federation, the Slovak Republic, Turkey and Ukraine); no statistical data was available in respect of Liechtenstein and San Marino. By 2015, opioid substitution programmes had been made available also in prison in Bulgaria, Estonia, Turkey and Ukraine.", "37. The HRI data for 2012 correspond to those published by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), a European Union decentralized agency, in their 2012 study entitled “Prisons and drug abuse in Europe: the problem and responses ”, which contains data in respect of all (then) European Union Member States, Croatia, Turkey and Norway.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "38. The applicant complained that the refusal to grant him drug substitution therapy in prison, which had made him suffer considerable pain and had caused damage to his health, and the refusal to have the necessity of drug substitution therapy examined by an external medical expert amounted to inhuman treatment. He relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "39. The Government contested that argument.", "A. Admissibility", "40. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "41. According to the applicant ’ s submission, the authorities ’ refusal to offer him drug substitution therapy in detention, without having consulted an external medical expert, had constituted inhuman treatment in breach of Article 3 of the Convention.", "42. The applicant argued that in the circumstances of his case, drug substitution therapy had been the only suitable treatment for his condition. By refusing him that treatment, the authorities had exceeded the margin of appreciation they had in respect of the provision of medical treatment to prisoners and had therefore disregarded their positive obligations under Article 3.", "43. In order to support this view, the applicant submitted that he has been addicted to heroin for some forty years. The Munich Court of Appeal itself, in its decision of 25 June 2010 (see paragraph 8 above ), had considered that he stood no chance of leading a drug-free life for a considerable time. Prior to his imprisonment, he had received drug substitution therapy without interruption from 1991 to 2008.", "44. In the applicant ’ s view, drug substitution therapy had been necessary to alleviate his severe neurological pain and had previously proved successful in attaining that aim. In contrast, the mere treatment of his pain with painkillers had been ineffective and thus insufficient. Drug substitution therapy had also been the adequate treatment for reducing his craving for heroin and allowing for the proper treatment of his other serious disease, namely the treatment with Interferon of the hepatitis C from which he suffered. It would have enabled him, as it had during the time when he had received substitution treatment, to lead a “normal” everyday life. By illegally refusing him that treatment, the authorities had caused him to suffer intense physical and mental pain.", "45. Furthermore, the applicant submitted that the authorities had not sufficiently examined the necessity of providing him with drug substitution therapy. The necessity to offer him such treatment should have been examined by an independent medical expert, as requested by him throughout the proceedings before the domestic authorities. In the applicant ’ s view, the prison doctors of Kaisheim Prison, where no drug substitution treatment had ever been carried out, did not have the professional training and experience to assess the necessity of substitution therapy.", "46. The applicant further stressed that neither the prison doctor nor the courts had had regard to, or at least mentioned, the applicable provisions ( section 13 of the Narcotic Substances Act, read in conjunction with section 5 of the Prescription of Narcotic Substances Regulation and the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts) which regulated the provision of drug substitution therapy. The requirements for drug substitution therapy had been met in his case. In accordance with section 5 § 1 of the Prescription of Narcotic Substances Regulation, it would have served to support the necessary treatment of the serious illnesses, namely hepatitis C, HIV and polyneuropathy, from which he was suffering alongside his drug addiction. Moreover, as required by section 5 § 2 of the said Regulation, there were no indications that the applicant would consume, in prison, substances of a type or quantity endangering the objective of the substitution treatment. His drug substitution treatment had been interrupted in breach of paragraph 8 of the Federal Medical Association ’ s Guidelines when he started serving his sentence.", "47. The applicant also claimed that he had been discriminated against by the refusal of drug substitution treatment in comparison to other heroin addicts who were not imprisoned and those who were imprisoned in the Land of Baden-Württemberg, who had the opportunity to obtain substitution treatment in accordance with the relevant medical guidelines. Substitution had been denied to him as a matter of principle and for outdated ideological, rather than medical, reasons.", "(b) The Government", "48. The Government took the view that the refusal to grant the applicant drug substitution therapy in prison, without an external medical expert having been consulted, had not violated Article 3 of the Convention.", "49. According to the Government ’ s submission, the applicant had received the required adequate medical treatment in detention. They contested that drug substitution therapy had been necessary treatment for the applicant ’ s condition, and still less the only treatment suitable to sustain the applicant ’ s health. As found by the prison doctor, substitution treatment had not been necessary on medical grounds. Such treatment had equally been unnecessary to attain the aims pursued by the execution of a term of imprisonment. It would have run counter to the aim of rehabilitating of the applicant in prison and enabling him to lead a drug-free life. Therefore, the refusal of drug substitution treatment had fallen within the State ’ s margin of appreciation in respect of the choice between different types of medical treatment of a detainee. This applied all the more as the applicant ’ s diseases had not been caused by State action.", "50. The Government explained that the applicant, having been properly examined by the prison doctor, had received comprehensive medical care in accordance with sections 58 and 60 of the Bavarian Execution of Sentences Act (see paragraph 27 above). He received suitable treatment for his diseases, including painkillers as well as psychiatric care, to alleviate the chronic pain from which he was suffering and to treat his drug addiction. He had also been examined by specialised doctors regarding his HIV and hepatitis C infections and was given medication accordingly. His state of health had been stable while in detention and, at the relevant time, he no longer suffered from physical withdrawal symptoms.", "51. Furthermore, the Government expressed doubts as to whether the relevant requirements for offering drug substitution treatment laid down in section 13 of the Narcotic Substances Act, read in conjunction with section 5 of the Prescription of Narcotic Substances Regulation and the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts (see paragraphs 28-30 above) were met in the applicant ’ s case. Contrary to the requirements laid down in section 5 § 1 of the Prescription of Narcotic Substances Regulation, the applicant did not pursue the aim of gradually restoring his abstinence from narcotic substances. Moreover, it was doubtful whether the requirements of section 5 § 2 of the said Regulation were met as it was to be expected that the applicant, just as in the past, would consume substances of a type or quantity endangering the objective of the substitution treatment, namely heroin, in addition to his substitution treatment, which would be life-threatening. Furthermore, in accordance with the Federal Medical Association ’ s Guidelines, drug substitution treatment was to be provided in prison only in individual reasoned cases. The prison doctors had not considered this requirement to be met.", "52. The Government conceded that a recent expert study commissioned by the Federal Ministry of Health (see paragraph 31 above) had revealed that stable abstinence from narcotic substances was a rare phenomenon in practice and appeared to be an unrealistic treatment objective in the long run. However, according to the experts ’ findings, abstinence could nevertheless be a legitimate aim of substitution treatment fixed between doctor and patient.", "53. The Government further argued that the authorities had sufficiently examined the necessity to provide the applicant with drug substitution treatment. They stressed that the applicant, prior to his detention in Kaisheim Prison, had been detained in the Günzburg drug rehabilitation centre, where the doctors specialised in treatment for drug addiction had not considered it necessary to provide him with drug substitution treatment. Moreover, they submitted that one of the applicant ’ s treating doctors in prison had carried out drug substitution therapy many times while employed in the Land of Lower Saxony. He had therefore equally had the necessary professional qualifications and experience to assess the necessity of providing the applicant with drug substitution treatment. This had been verified by the domestic courts. The applicant did not have a right to choose freely his medical treatment and his treating doctor while in detention and therefore could not ask to be examined and treated by an external doctor.", "2. The Court ’ s assessment", "(a) Recapitulation of the relevant principles", "54. The Court reiterates that to come within the scope of the interdiction contained in Article 3 of the Convention the treatment inflicted on or endured by the victim must reach a minimum level of severity. The assessment of this minimum level of severity is a relative one, depending on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, inter alia, Blokhin v. Russia [GC], no. 47152/06, § 135, ECHR 2016, with further references ).", "55. The Court further reiterates that Article 3 of the Convention imposes on the State a positive obligation to ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, the person ’ s health and well-being are adequately secured by, among other things, the provision of the requisite medical assistance and treatment (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI; McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003 ‑ V; and Farbtuhs v. Latvia, no. 4672/02, § 51, 2 December 2004 ). In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. Medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see, inter alia, Blokhin, cited above, § 137 ).", "56. The Court has clarified in this context that it was essential for a prisoner suffering from a serious illness to undergo an adequate assessment of his or her current state of health, by a specialist in the disease in question, in order to be provided with appropriate treatment (compare Keenan v. the United Kingdom, no. 27229/95, §§ 115-116, ECHR 2001 ‑ III, concerning a mentally ill prisoner; Khudobin v. Russia, no. 59696/00, §§ 95 ‑ 96, ECHR 2006 ‑ XII (extracts), concerning a prisoner suffering from several chronic diseases including hepatitis C and HIV; and Testa v. Croatia, no. 20877/04, §§ 51-52, 12 July 2007, concerning a prisoner suffering from chronic hepatitis C ).", "57. The prison authorities must offer the prisoner the treatment corresponding to the disease(s) the prisoner was diagnosed with (see Poghosyan v. Georgia, no. 9870/07, § 59, 24 February 2009 ), as prescribed by the competent doctors ( see Xiros v. Greece, no. 1033/07, § 75, 9 September 2010). In the event of diverging medical opinions on the treatment necessary to ensure adequately a prisoner ’ s health, it may be necessary for the prison authorities and the domestic courts, in order to comply with their positive obligation under Article 3, to obtain additional advice from a specialised medical expert (compare Xiros, cited above, §§ 87 and 89 -90; and Budanov v. Russia, no. 66583/11, § 73, 9 January 2014 ). The authorities ’ refusal to allow independent specialised medical assistance to be given to a prisoner suffering from a serious medical condition on his request is an element the Court has taken into account in its assessment of the State ’ s compliance with Article 3 (compare, for instance, Sarban v. Moldova, no. 3456/05, § 90, 4 October 2005).", "58. The Court further reiterates, being sensitive to the subsidiary nature of its role, that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether an applicant in fact required a particular treatment or whether the choice of treatment methods appropriately reflected the applicant ’ s needs (see Ukhan v. Ukraine, no. 30628/02, § 76, 18 December 2008; and Sergey Antonov, no. 40512/13, § 86, 22 October 2015 ). However, having regard to the vulnerability of applicants in detention, it is for the Government to provide credible and convincing evidence showing that the applicant concerned had received comprehensive and adequate medical care in detention (see Sergey Antonov, ibid. ).", "(b) Application of these principles to the present case", "59. The Court is called upon to determine whether, in the light of the foregoing principles, the respondent State complied with its positive obligation under Article 3 of the Convention to ensure that the applicant ’ s health was adequately secured during his detention by providing him with the requisite medical treatment, at a level comparable to that which the State authorities have committed themselves to provide to persons in freedom.", "60. The Court observes that it is contested between the parties whether, in the circumstances of the case, drug substitution therapy was to be regarded as the necessary medical treatment which had to be provided to the applicant in order for the State to comply with its said obligation.", "61. The Court accepts that the States have a margin of appreciation in respect of the choice between different suitable types of medical treatment for a prisoner ’ s diseases. This holds true, in particular, where medical research does not lead to a clear result as to which of two or more possible therapies is more suitable for the patient concerned. The Court, having regard to the material before it, is aware of the fact that drug substitution therapy with methadone entails the replacement of an illicit drug with a synthetic opioid. While drug substitution treatment has become increasingly widespread in the Council of Europe Member States during the past years, the measures to be taken to treat drug addiction are still the subject of controversy. The States ’ margin of appreciation in respect of the choice of medical treatment for a prisoner ’ s diseases applies, in principle, also to the choice between abstinence-oriented drug therapy and drug substitution therapy and to the setting-up of a general policy in this field, as long as the State ensures that the standards set by the Convention in the field of medical care in prison are complied with.", "62. The Court considers that in the present case, it does not need to decide whether the applicant in fact needed drug substitution therapy. It rather has to determine whether the respondent State has provided credible and convincing evidence proving that the applicant ’ s state of health and the appropriate treatment were adequately assessed and that the applicant subsequently received comprehensive and adequate medical care in detention.", "63. In this context, the Court notes that there are a number of strong elements indicating that drug substitution treatment could be regarded as the requisite medical treatment for the applicant in view of the following. First, it is uncontested between the parties that the applicant is a manifest and long-term opioid addict. At the relevant time of the domestic authorities ’ decisions, he had been addicted to heroin for some forty years. All his attempts to overcome his addiction, including five in-house drug rehabilitation therapies, had failed. In the light of these circumstances, a domestic court itself had confirmed, in proceedings related to those here at issue, that it could no longer be expected with sufficient probability that the applicant could be cured of his drug addiction or prevented for a considerable time from relapsing into drug abuse (see paragraph 8 above). It is further uncontested that the applicant suffered from chronic pain linked to his long-term drug consumption and polyneuropathy.", "64. In view of his state of health, prior to his detention here at issue, the applicant ’ s heroin addiction had been treated with medically prescribed and supervised drug substitution therapy for seventeen years, from 1991 until 2008. The Court notes in this context that according to the relevant domestic guidelines, that is, the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts of 19 February 2010, adopted in accordance with section 5 § 11 of the Prescription of Narcotic Substances Regulation, opiate addiction was a serious chronic disease requiring medical treatment. It is further clarified that substitution treatment was a scientifically tested therapy for manifest opiate addiction (see paragraph 30 above). According to a study commissioned by the Federal Ministry of Health, drug substitution treatment was to be considered as an established therapy and the best possible therapy in that case (see paragraph 31 above). The statistical data before the Court show, accordingly, that opioid substitution therapy programmes were operational already at the relevant time of the proceedings at issue in 41 out of 47 of the Council of Europe Member States in the community and 30 out of 47 of those State also provided such therapy to prisoners (see paragraphs 3 6 - 3 7 above).", "65. The Court further observes that it is uncontested by the Government that drug substitution therapy is, in principle, available in prisons in Germany, as it is outside prison, and is actually provided in practice in prisons in several Länder other than Bavaria. The applicable provisions of domestic law (section 13 of the Narcotic Substances Act, read in conjunction with section 5 of the Prescription of Narcotic Substances Regulation and paragraph 8 of the Federal Medical Association ’ s Guidelines for the Substitution Treatment of Opiate Addicts ) specify, in particular, that in case of imprisonment, the continuity of the substitution treatment started outside prison by the institution in which the patient is placed, is to be secured ( see paragraph 30 above ).", "66. The Court would note in that context that this approach is in line with the standards fixed by the Council of Europe in respect of health care services in prison. Both the CPT standards and the Committee of Ministers ’ Recommendation Rec(2006)2 on the European Prison Rules (which do not specifically focus on drug therapy), as well as the Committee of Ministers ’ Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison, lay down the principle of equivalence of care. Under that principle, prisoners are entitled to medical treatment in conditions comparable to those enjoyed by patients in the outside community and should have access to the health services available in the country without discrimination on grounds of their legal situation (see paragraphs 32-34 above and for the Court ’ s own definition paragraph 5 5 above ).", "67. The Court further observes that not only the doctors having prescribed the applicant drug substitution therapy prior to his detention considered that treatment to be necessary in the applicant ’ s case. An external doctor for internal medicine commissioned by the prison authorities, H., who had examined the applicant in person, had suggested that the prison medical service, who had not considered it necessary to provide the applicant with such treatment, reconsider granting the applicant drug substitution treatment (see paragraph 10 above). Moreover, a doctor specialised in drug addiction treatment (B.) had equally confirmed, albeit only on the basis of the written findings of doctor H., that from a medical point of view, drug substitution treatment had to be provided to the applicant (see paragraph 11 above).", "68. The Court would add that the strong indication that drug substitution treatment could be regarded as the requisite medical treatment for the applicant was subsequently further supported by the fact that the applicant was again prescribed and provided with drug substitution treatment immediately after his release from detention.", "69. The Court would refer in this context to its case-law under which it is for the Government to provide convincing evidence showing that the applicant concerned received comprehensive and adequate medical care in detention (see paragraph 5 8 above ). It notes that abstinence-oriented therapy constituted a radical change in the medical treatment the applicant had received for seventeen years prior to his detention and that the domestic courts, based on the opinion of the treating doctors in the drug detoxification centre, considered that this therapy had failed. The Court finds that, in these circumstances, the domestic authorities were under an obligation to examine with particular scrutiny if maintaining the abstinence ‑ oriented therapy was to be considered as appropriate.", "70. The Court considers, in this context, the authorities ’ argument that, at the time when the applicant was transferred from the drug rehabilitation centre to Kaisheim Prison, where he applied for drug substitution treatment, he had not been provided with drug substitution therapy for several months and no longer suffered from physical withdrawal symptoms. However, in the Court ’ s view, this element does not militate against the potential necessity of drug substitution treatment. The applicant ’ s health in detention was characterised, in particular, by chronic pain which he suffered independently of previous physical withdrawal symptoms. Moreover, it emerges from the material before the Court that the treatment with Polamidon was interrupted against the applicant ’ s will, and apparently contrary to what is provided by the above ‑ mentioned Federal Medical Association Guidelines (see paragraph 30 above), at the outset of his detention and during his stay in the drug rehabilitation centre, where abstinence- based treatment for his addiction was carried out without additional substitution treatment. The authorities cannot, therefore, rely on a situation which they themselves brought about. Furthermore, given that the abstinence-oriented therapy had failed both in the view of the treating doctors in the drug detoxification centre and in the view of the domestic courts (see paragraph 8 above), the authorities were called upon to assess anew which therapy was suitable for the applicant.", "71. The Court further considers that its above findings are not called into question by the Government ’ s argument that drug substitution therapy would run counter to the aim of rehabilitating the applicant by making him overcome his drug addiction in prison and thus enabling him to lead a life free of illegal drugs outside prison. The Court considers that this objective is, in principle, a legitimate aim which may be taken into account in the assessment of the necessity of the medical treatment of a drug addict. However, the Court notes that in the applicant ’ s case, the authorities themselves had considered, prior to refusing the applicant drug substitution treatment in the proceedings at issue, that having regard to his history of drug addiction, this aim could not reasonably be expected to be attained. In particular, the Court of Appeal, when confirming the termination of the applicant ’ s treatment in a detoxification facility after consultation of the applicant ’ s treating doctors, considered that it could no longer be expected with sufficient probability that the applicant could be cured of his drug addiction (see paragraph 8 above).", "72. The authorities ’ assessment in this respect is equally confirmed by medical research showing that stable abstinence from opioids was a rare phenomenon and should, in the case of manifest opioid addicts, only be attempted if the patient was motivated to attain that aim (see paragraph 31 above), which was clearly not the applicant ’ s case at the relevant time. Therefore, the refusal of drug substitution treatment could not be based on that unattainable objective.", "73. Furthermore, the Court takes note of the Government ’ s argument that providing the applicant with substitution treatment would have put his life and limb in jeopardy as he might have consumed additional illegal drugs in prison. In the Government ’ s submission, he therefore also had not met the requirements for drug substitution treatment under section 5 § 2 of the Prescription of Narcotic Substances Regulation. The Court considers that this argument is somewhat at odds with another argument the authorities forwarded in the context of their refusal to provide substitution treatment, namely that it was very difficult to obtain opioids in prison. In any event, the Court observes that this risk appeared to have been manageable even in the community over the previous seventeen years during which the applicant had received drug substitution treatment. In contrast, the risk caused to the life and limb of a drug addict who was released from prison without substitution treatment was acknowledged also by the prison authorities (see paragraph 25 above). The Court therefore finds that this element equally did not exempt the domestic authorities from analysing in detail the suitable treatment options for the applicant.", "74. The Court would add that it is aware that medical treatment in the prison context may entail additional difficulties and challenges for the domestic authorities, notably those related to security concerns. However, the Government have not forwarded any reasons for finding that providing the applicant with drug substitution treatment was incompatible with the practical demands of imprisonment. In contrast, as expert B. had stressed, such treatment would help prevent the spread of infectious diseases such as HIV and hepatitis C from which the applicant suffered, in the interests of his fellow prisoners and the community as a whole. The Court further accepts that the provision of such treatment may serve to diminish the trafficking and uncontrolled consumption of illegal drugs in prison.", "75. Furthermore, the Court would stress that, in order for a State to comply with its positive obligation to ensure that a prisoner ’ s health was adequately ensured, it is not only necessary to assess adequately a prisoner ’ s state of health which, in case of serious illnesses, requires consultation of a specialist doctor (see paragraph 5 6 above). The necessary medical treatment adequately addressing the prisoner ’ s state of health must also be determined with the help of the medical expert and provided to the detainee. The Court notes in this context that the importance of drawing on external medical experts providing specialised assistance to addicts in order to provide prisoners with appropriate treatment is equally stressed in the Committee of Ministers ’ Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison (see paragraph 34 above).", "76. In the present case, the Court cannot but note that the domestic authorities had strong elements before them indicating that drug substitution therapy could be the adequate medical treatment for the applicant ’ s state of health. Moreover, as shown above (see paragraph 6 7 ), following the termination of the abstinence-oriented therapy for lack of success, they were faced with several opinions of medical doctors, including specialists in drug addiction treatment, diverging from that of the specialised internal doctors treating the applicant in prison and, before the abstinence-oriented therapy failed, in the detoxification facility, on the question of the necessary medical treatment to be provided to the applicant. The Court further cannot but note in that context that it is uncontested that no drug substitution treatment had ever been provided in practice to prisoners in Kaisheim Prison.", "77. In these circumstances, the Court considers that in order to ensure that the applicant received the necessary medical treatment in prison the domestic authorities, and in particular the courts, were required to verify, in a timely manner and with the help of an independent doctor skilled in drug addiction treatment, whether the applicant ’ s condition was still adequately treated without such therapy. However, there is no indication that the domestic authorities, with the help of medical expert advice, examined the necessity of drug substitution treatment with regard to the criteria set by the relevant domestic legislation and medical guidelines. Despite the applicant ’ s previous medical treatment with drug substitution therapy for seventeen years, no follow-up was given to the opinions expressed by external doctors H. and B. on the necessity to consider providing the applicant again with drug substitution treatment.", "78. As regards the effects of the refusal of drug substitution treatment in prison on the applicant, the Court, having regard to the material before it, considers that drug withdrawal as such causes serious physical strain and extreme mental stress to a manifest and long-term opioid addict which may attain the threshold of Article 3. It notes that, while the applicant was found no longer to suffer from the physical withdrawal symptoms which occur at the beginning of forced abstinence, the – albeit limited – material before the Court, in particular external doctor H. ’ s assessment, suggests that the chronic pain from which the applicant was suffering throughout the relevant period could have been alleviated more effectively with drug substitution treatment than with the painkillers he received. It was also not contested that this pain in his feet, neck and spine was such that, at least during certain periods of time during the applicant ’ s detention at issue, some three and a half years, the applicant spent most of his time in bed. The Court further accepts that his suffering was exacerbated by the fact that he was aware of the existence of a treatment which had previously alleviated his pain effectively, but which he was refused.", "79. The Court further considers it established that the refusal to provide the applicant continuously with drug substitution treatment despite his manifest opioid addiction caused him considerable and continuous mental suffering for a long time. The applicant also made it plausible that the deterioration of his already poor state of health, and in particular his chronic pain, combined with his craving for heroin, reduced his ability to participate in social life. In the light of these elements, the Court is satisfied that the physical and mental strain the applicant suffered as a result of his health condition as such could, in principle, exceed the unavoidable level of suffering inherent in detention and attain the threshold of Article 3. The domestic authorities therefore had to properly evaluate which was the adequate treatment for his disease in order to secure that he received adequate medical care but, as shown above, failed to prove that the applicant ’ s treatment with painkillers alone was sufficient in the circumstances.", "80. In the light of the foregoing, the Court concludes that the respondent State failed to provide credible and convincing evidence showing that the applicant had received comprehensive and adequate medical care in detention, at a level comparable to that which the State authorities have committed themselves to provide to persons in freedom, where drug substitution treatment was available. In coming to this conclusion, the Court bears in mind the particular circumstances of the applicant ’ s case as a long ‑ term drug addict without any realistic chance of overcoming addiction and having received substitution treatment for many years. In this context, the authorities failed to examine with particular scrutiny and with the help of independent and specialist medical expert advice, against the background of a change in the medical treatment, which therapy was to be considered as appropriate. The respondent State therefore failed to comply with its positive obligation under Article 3.", "81. There has accordingly been a violation of Article 3 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "82. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "83. The applicant claimed 11,911.20 euros (EUR) in respect of pecuniary damage. He argued that as a result of the refusal of drug substitution treatment he had been unable to work in prison, where he would have earned EUR 14.18 per day on twenty working days per month during his three years and six months ’ imprisonment. He further claimed EUR 10,000 in non-pecuniary damages. He claimed, in particular, that as a result of the refusal of drug substitution treatment, he had suffered from serious neurological pain throughout his detention, craving for drugs and social isolation resulting from his poor health.", "84. The Government contested that the applicant had suffered pecuniary damage by the alleged breach of Article 3. They submitted that the applicant, who had worked for the last time in the 1980s, would not have worked in prison. As for the non-pecuniary damages claimed, the Government considered that the applicant ’ s claim was excessive. They stressed that the applicant could only claim compensation for damage caused by the refusal of drug substitution treatment since June 2011.", "85. As for the applicant ’ s claim in respect of pecuniary damage, the Court observes that it emerges from the documents before it that the applicant has been receiving an employment disability pension since 2001 (see paragraph 6 above). It therefore does not consider it proved that it was as a result of the refusal of drug substitution treatment that the applicant had been unable to work and draw wages in prison. It therefore rejects the applicant ’ s claim in this respect for lack of a causal link between the violation found and the pecuniary damage alleged.", "86. As for the applicant ’ s claim in respect of non-pecuniary damage, the Court refers to its above finding that the domestic authorities breached Article 3 in that they did not sufficiently examine whether the applicant, for whose diseases as such the respondent State is not responsible, received adequate medical care in detention. The Court does not wish to speculate on the outcome of a proper examination of the question which was the adequate treatment for the applicant and on the effects of the potentially adequate drug substitution treatment compared to the treatment with painkillers the applicant received. The Court therefore considers that in the particular circumstances of the case, the finding of a violation of Article 3 constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered.", "B. Costs and expenses", "87. Submitting documentary evidence, the applicant also claimed EUR 1801.05 (including value-added tax (VAT)) for the lawyers ’ costs and expenses incurred before the domestic courts and EUR 833 (including VAT) for those incurred before the Court. He explained that the lawyers ’ costs had been advanced on loan by third persons and that he was obliged to reimburse the costs to them as soon as possible following his release from detention.", "88. The Government did not comment on this point.", "89. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant the sum of EUR 1, 801.05 (including VAT) claimed for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant. As for the costs and expenses for the proceedings before this Court, the Court, having regard to the sum claimed and the fact that the applicant was granted legal aid for these proceedings, does not make an award under this head.", "C. Default interest", "90. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1955 and is currently in prison in Staffordshire.", "A. The applicant ’ s brain haemorrhage and initial confidentiality of his medical correspondence", "6. On 30 November 2001 the applicant was sentenced by a Crown Court to a total of fourteen years ’ imprisonment for conspiracy to supply Class A drugs and two offences of possession of a Class A drug with intent to supply.", "7. On 6 April 2001, while on bail pending trial, the applicant suffered a brain haemorrhage for which he underwent surgery. On 5 July 2002 he underwent further surgery. Following his discharge to prison, he required monitoring and was required to go to hospital every six months for a specialist check-up by a neuro -radiologist.", "8. In 2002 the applicant was held in a high - security prison which held Category A (high - risk) prisoners as well as Category B prisoners such as himself. As a result, he fell within the provisions of a general order, Prison Service Order (PSO) 1000, which applied to all prisoners of whatever security category who were being held in a unit which held Category A prisoners (see paragraph 28 below).", "9. The applicant wished to correspond confidentially with his external medical specialist to ensure that he would receive the necessary medical treatment and supervision in prison. He expressed his concerns about his medical correspondence with his external medical specialist being read and applied to the prison governor for a direction that such correspondence should be accorded confidentiality.", "10. On 18 September 2002 the governor of the prison in which the applicant was being detained agreed to the applicant ’ s request. It was decided that the applicant ’ s medical correspondence would not be read provided that certain conditions were met. All outgoing and incoming mail was to be marked “medical in confidence”. Outgoing correspondence would be checked to ensure that it was being sent to a nominated address and incoming mail was to be marked with a distinctive stamp of the relevant health authority.", "B. Subsequent monitoring of the applicant ’ s correspondence", "11. The prison governor subsequently reconsidered his decision after seeking advice from HM Prison Service Headquarters. On 28 November 2002 the prison governor informed the applicant that he had been advised that it was necessary to examine his medical correspondence for illicit enclosures. All correspondence between the applicant and his external medical specialist would be directed, unopened, to the prison medical officer. The latter would examine the content of the envelope in order to ascertain its medical status and then reseal it. Incoming and outgoing correspondence would then be sent to the applicant and his external medical specialist respectively.", "12. The applicant contested the decision to monitor his medical correspondence. He was concerned that his attempts to confirm that he was receiving adequate treatment in hospital might be regarded by the prison medical officer as criticism and that this might inhibit his relationship with his external medical specialist.", "C. Judicial review proceedings", "13. On 4 August 2003 the applicant applied for leave to apply for judicial review of the prison governor ’ s decision of 28 November 2002. On 20 February 2004 the presiding High Court judge, Mr Justice Collins, allowed the applicant ’ s claim for judicial review.", "14. The Prison Service had submitted, inter alia, that it would be difficult to make the necessary arrangements to permit medical correspondence to remain confidential. They argued that there were a large number of health bodies with which a prisoner might wish to correspond and that some health bodies might lack franking machines that would enable prisons to identify the authenticity of the sender.", "15. Mr Justice Collins concluded that there were exceptional circumstances in the applicant ’ s case. The exceptional circumstances were said to be the life-threatening nature of the applicant ’ s condition and his desire to ensure that his treatment in prison did not affect him adversely. The applicant, understandably, wanted to obtain reassurance from the medical specialist who was involved in treating him and from whom he required continual medical care, in the form of biannual specialist observations. Mr Justice Collins also found that the initial decision of the prison governor to enable the applicant to correspond on a confidential basis with his external medical specialist indicated that it was reasonable to permit such confidential correspondence. The evidence of the Prison Service as to the practical problems involved in making arrangements to enable confidential medical correspondence were not directly material in an exceptional case such as the present one.", "16. In the circumstances, and emphasising that this was a case which turned on its own exceptional facts, Mr Justice Collins considered it appropriate to quash the prison governor ’ s decision of 28 November 2002. He granted the applicant a declaration that “the governor of whatever prison the [applicant] resides [in] should make a decision in accordance with the principles made in light of this judgment”.", "D. The proceedings before the Court of Appeal", "17. On 29 October 2004 the Court of Appeal allowed the appeal by the Secretary of State and the prison governor. Lord Justice Sedley gave the judgment of the court. It was noted that there was no dispute that the reading of prisoners ’ correspondence was governed by law, and that it was directed to the prevention of crime and the protection of the rights and freedoms of others. The issue to be decided was whether, in the language of Article 8 § 2 of the Convention, the reading of the applicant ’ s correspondence was proportionate. While the prison governor ’ s initial decision to allow confidentiality to the applicant ’ s medical correspondence with his external medical specialist strongly suggested that its exemption from Chapter 36.21 of PSO 1000 would be a perfectly reasonable course, the onus still remained on the applicant to establish that anything more invasive would constitute a disproportionate interference with his Article 8 rights.", "18. The Court of Appeal concluded that although the procedure set out in the prison governor ’ s letter of 28 November 2002 amounted to an interference with the applicant ’ s right to respect for his correspondence, the interference was justified and proportionate under Article 8 § 2 of the Convention. It considered that although it was of course possible to verify the existence, address and qualifications of the applicant ’ s external medical specialist (whose bona fides was not in question), there was no way of ensuring that the latter would not be intimidated or tricked into transmitting illicit messages. While the same was true of, for example, the secretarial staff of members of parliament (MPs ), the importance of unimpeded correspondence with MPs outweighed the risk. By contrast, as regards correspondence with doctors, the prisoner ’ s health was the concern and the immediate responsibility of the Prison Medical Service. Though it may well be the case that allowing the prison medical officer to read the prisoner ’ s correspondence with an outside medical practitioner might lead the former to “encounter criticism of his own performance”, it was inherently unlikely that this would carry the same degree of risk that might attend the reading by a discipline officer of a letter of complaint to the Prisons Ombudsman. Moreover, if it related to the prisoner ’ s well - being it was probable that the prison medical officer ought in any event to know about it.", "19. The Court of Appeal concluded that the monitoring of the applicant ’ s medical correspondence was a proportionate interference with his Article 8 rights, although it did not exclude the possibility that in another case it might be disproportionate to refuse confidentiality to medical correspondence in the prison context. The Court of Appeal based its conclusion on the following factors. Firstly, the monitoring of the applicant ’ s medical correspondence answered legitimate and pressing policy objectives which were clearly stated in Chapter 36. 1 of PSO 1000 (see paragraph 28 below). Secondly, short of withdrawing all scrutiny, it considered that there was no less invasive measure available to the prison service. Thirdly, the reading of the applicant ’ s medical correspondence which was limited to the prison medical officer was not in its view excessive. Fourthly, the process by which the measure had been decided upon was not found to be arbitrary. In particular, it had not been the result of the rigid application of a policy. The withdrawal of monitoring had not only been considered but had been implemented until, upon reconsideration, monitoring had been resumed. The interference in question had not denied the essence of the applicant ’ s Article 8 rights as it related to one correspondent only (the external medical specialist) and it confined the interference to a medically qualified reader (the prison medical officer). It was recognised that there was an inescapable risk of abuse, for example, if the applicant ’ s prison life or treatment was made more difficult because of what he was observed to be writing. However, the risk, having been minimised by virtue of confining surveillance to the prison medical officer, was outweighed by the above- mentioned factors.", "E. Petition to the House of Lords", "20. On 18 April 2005 the applicant ’ s petition for leave to appeal was refused by the House of Lords on the ground that the petition did not raise an arguable point of law of general public importance.", "F. The applicant ’ s current conditions of imprisonment", "21. Since 22 May 2007 the applicant has been located in a Category B prison in Staffordshire." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "22. The Secretary of State is responsible for the management of the prison system in England and Wales (Prison Act 1952, sections 1 and 4).", "23. Until November 2007 each prison was required to appoint a medical officer (Prison Act 1952, section 7(1)). The medical officer was a prison officer who had to be a registered medical practitioner (Prison Act 1952, section 4). This requirement was removed by section 25(1) of the Offender Management Act 2007 which came into force on 1 November 2007. Prison health care is now generally integrated with, and commissioned by, the National Health Service (NHS).", "24. Section 47(1) of the Prison Act 1952 authorises the Secretary of State to make rules for the regulation and management of prisons and for the classification, treatment, employment, discipline and control of persons required to be detained therein. Such rules are made by statutory instrument, laid before Parliament, and are subject to annulment in pursuance of a resolution of either House of Parliament (Prison Act 1952, section 52(1) and the Criminal Justice Act 1967, section 66(4)).", "25. Prisoners are classified in accordance with directions of the Secretary of State (Prison Rules SI 1999/728 rule 7(1)). Prisoners are classified in accordance with PSO 0900. Paragraph 1.1.1 of PSO 0900 contains the definitions of the four categories of prisoner (A, B, C and D). Category A is applied to prisoners whose escape would be highly dangerous to the public or the police or the security of the State, no matter how unlikely that escape might be, and for whom the aim must be to make escape impossible. Category B is applied to prisoners for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult.", "26. Rule 34 of the Prison Rules is headed “Communications Generally” It provides as relevant:", "“(1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.", "(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed –", "(a) does not interfere with the Convention rights of any person; or", "(b) ( i ) is necessary on grounds specified in paragraph (3) below;", "(ii) reliance on the grounds is compatible with the Convention right to be interfered with; and", "(iii) the restriction or condition is proportionate to what is sought to be achieved.", "(3) The grounds referred to in paragraph (2) above are –", "(a) the interests of national security;", "(b) the prevention, detection, investigation or prosecution of crime;", "(c) the interests of public safety;", "(d) securing or maintaining prison security or good order and discipline in prison;", "(e) the protection of health or morals;", "(f) the protection of the reputation of others;", "(g) maintaining the authority and impartiality of the judiciary; or", "(h) the protection of the rights and freedoms of any person.", "...", "(8) In this rule –", "...", "(c) references to Convention rights are to the Convention rights within the meaning of the Human Rights Act 1998.”", "27. Rule 39 of the Prison Rules deals with correspondence with legal advisers and courts and provides that such correspondence may only be opened, read or stopped by the prison governor in accordance with the provision of that rule, namely when the governor has cause to believe either that the correspondence contains an illicit enclosure or that its contents endanger prison security or the safety of others or are otherwise of a criminal nature.", "28. Chapter 36.1 of PSO 1000, which was applicable at the relevant time and which dealt with prisoner communications in connection with those who were in Category A prisons, or who were in prisons which held Category A prisoners, provided as follows:", "“Prison management must provide facilities for prisoners to maintain contact with family and friends. Prisoners ’ rights to respect for their private and family life and correspondence are also protected by Article 8 of the European Convention on Human Rights. The Prison Service ’ s duty to protect the public allows us to interfere in this privacy in order to minimise the possibility that, in communicating with the outside world, prisoners:", "( i ) plan escapes or disturbances;", "(ii) jeopardise the security and good order of the prison;", "(iii) engage in offences against criminal law or prison discipline;", "(iv) jeopardise national security;", "(v) infringe the rights and freedoms of others.”", "29. Chapter 36.21 of PSO 1000 read:", "“All correspondence, other than correspondence protected by PR39 [that is correspondence with legal advisors] or that with the Samaritans, must be read as a matter of routine in the following cases:", "( i ) all prisoners of whatever security category, held in a unit which itself holds Category A prisoners.”", "30. Chapter 36.22 continued as follows:", "“Routine reading is necessary in these cases in order to prevent escape and, in the case of Category A prisoners, in the interests of public safety. It is also necessary in preventing crime and disorder, for the protection of the rights and freedoms of others, and, in some cases, necessary in the interests of national security or the economic well being of the country.”", "31. PSO 4411 is entitled “Prisoner Communications: Correspondence”. It came into operation on 5 September 2007. So far as is material to the present case it reflects the practice and procedure in operation from 2002 to 2004.", "32. Special treatment was at the relevant time and still is given to various forms of correspondence apart from that with legal advisers, specifically covered by rule 39 of the Prison Rules and that with the Samaritans, specifically mentioned in Chapter 36.21 of PSO 1000. Correspondence with, inter alia, the courts, the Bar Council, the Law Society, the Criminal Cases Review Commission, the Office for the Supervision of Solicitors, the Office of the Parliamentary Commissioner, the Office of the Legal Services Ombudsman, the Probation Ombudsman, the Commission for Racial Equality and MPs are generally treated as confidential.", "33. PSO 4411 introduced a new category of correspondence subject to confidential handling arrangements. Chapter 5.1 includes the Healthcare Commission as one of the bodies with which a prisoner is entitled to correspond confidentially. The Healthcare Commission is the independent watchdog for health care in England. It assesses and reports on the quality of services provided by the NHS and the independent health - care sector.", "III. RELEVANT INTERNATIONAL MATERIALS", "34. Chapter III, paragraph 34 of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) standards published in October 2006 states the following:", "“ While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime ... The health - care service should be so organised as to enable requests to consult a doctor to be met without undue delay.", "Prisoners should be able to approach the health - care service on a confidential basis, for example, by means of a message in a sealed envelope. Further, prison officers should not seek to screen requests to consult a doctor. ”", "35. Paragraph 50 of the CPT standards provides:", "“ Medical secrecy should be observed in prisons in the same way as in the community. ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "36. The applicant complained that the prison authorities had intercepted and monitored his medical correspondence in breach of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "37. The Government contested that argument.", "A. Admissibility", "38. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "39. The Government accepted that the checking of the applicant ’ s correspondence with his external medical specialist amounted to an interference with his right to respect for his correspondence under Article 8 § 1 of the Convention.", "40. Relying on the judgment of the Court of Appeal (particularly its findings set out in paragraph 19 above), the Government submitted that the interference was justified and proportionate under Article 8 § 2 of the Convention. They argued that the applicable legal framework provided clear and structured guidance on the matter, which paid full regard to the requirements of the Convention. They asserted that the procedure devised was tailored to the circumstances of the applicant ’ s case. Moreover, the disclosure of the applicant ’ s medical correspondence was limited to the prison medical officer who was himself bound by duties of medical confidentiality. They distinguished the present case, which involved a circumscribed reading of a single category of a prisoner ’ s correspondence by the prison medical officer, from cases which involved a blanket reading of prisoners ’ correspondence (such as Petra v. Romania, 23 September 1998, § 37, Reports of Judgments and Decisions 1998 ‑ VII, and Jankauskas v. Lithuania, no. 59304/00, §§ 21-22, 24 February 2005) which had been held to be in breach of Article 8 of the Convention.", "41. The applicant argued that the monitoring of his correspondence was disproportionate. There was no suggestion in the Government ’ s observations of any specific ground to suggest that he was likely to abuse correspondence with his medical specialist. PSO 4411, to which the Government referred as being the policy governing correspondence, recognised that prisoners could correspond on a confidential basis with a number of bodies including the Healthcare Commission (which considered complaints concerning medical treatment) and the Samaritans (who provided counselling for the suicidal). According to PSO 4411, such correspondence could only be opened where there were reasonable grounds to believe that it contained an illicit enclosure.", "42. The applicant further contended that there was an obvious risk that monitoring of medical correspondence would inhibit what a prisoner conveyed, thereby harming the quality of advice received. It was such concerns that had led to legal correspondence being accorded confidentiality. PSO 4411 demonstrated that prison security was not undermined by enabling prisoners to write on a confidential basis to lawyers and other professionals such as the Healthcare Commission. It was difficult to see why the risk of abuse of correspondence with doctors should be any higher than the risk of abuse involved in correspondence with lawyers.", "2. The Court ’ s assessment", "43. The Court notes that it is clear, and indeed not contested, that there was an “interference by a public authority” with the exercise of the applicant ’ s right to respect for his correspondence guaranteed by Article 8 § 1. Such an interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve them (see, among other authorities, Silver and Others v. the United Kingdom, 25 March 1983, § 84, Series A no. 61; Campbell v. the United Kingdom, 25 March 1992, § 34, Series A no. 233; Petrov v. Bulgaria, no. 15197/02, § 40, 22 May 2008; and Savenkovas v. Lithuania, no. 871/02, § 95, 18 November 2008 ).", "44. It further observes that it is accepted by the parties that the reading of the applicant ’ s correspondence was governed by law and that it was directed to the prevention of crime and the protection of the rights and freedoms of others (see paragraph 17 above). The issue that falls to be examined is whether the interference with the applicant ’ s correspondence was “necessary in a democratic society”.", "45. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. In determining whether an interference is “necessary in a democratic society” regard may be had to the State ’ s margin of appreciation (see, among other authorities, Campbell, cited above, § 44; Petrov, cited above, § 44; and Dickson v. the United Kingdom [GC], no. 44362/04, § 77, ECHR 2007 ‑ V ). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention.", "46. In assessing whether an interference with the exercise of the right of a convicted prisoner to respect for his correspondence was “necessary” for one of the aims set out in Article 8 § 2, regard has to be paid to the ordinary and reasonable requirements of imprisonment. Some measure of control over prisoners ’ correspondence is called for and is not of itself incompatible with the Convention (see, among other authorities, Silver and Others, cited above, § 98; Kwiek v. Poland, no. 51895/99, § 39, 30 May 2006; and Ostrovar v. Moldova, no. 35207/03, § 105, 13 September 2005 ). However, the Court has developed quite stringent standards as regards the confidentiality of prisoners ’ legal correspondence. In paragraph 43 of its judgment in Petrov (cited above), the Court enunciated its principles as regards legal correspondence in the prison context as follows:", "“ ... correspondence with lawyers ... is in principle privileged under Article 8 of the Convention and its routine scrutiny is not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client (see Campbell ... §§ 47 and 48). The prison authorities may open a letter from a lawyer to a prisoner solely when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, such as opening the letter in the presence of the prisoner. The reading of a prisoner ’ s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as ‘ reasonable cause ’ will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication is being abused (see Campbell ... § 48). ”", "47. In the present case, the interference took the form of the monitoring of the applicant ’ s correspondence with his external medical specialist, which concerned his life-threatening medical condition. The Court reiterates the Z v. Finland case ( 25 February 1997, Reports 1997 - I ), in which it emphasised that:", "“ ... the protection of personal data, not least medical data, is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.", "Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health ... ”", "48. Moreover, as the Court has recognised in its case-law under Article 3 of the Convention, notwithstanding the practical demands of imprisonment, detainees ’ health and well-being must be adequately served by, among other things, providing them with the requisite medical assistance (see, in this regard, Hurtado v. Switzerland, 28 January 1994, opinion of the Commission, § 79, Series A no. 280-A, and Mouisel v. France, no. 67263/01, § 40, ECHR 2002 ‑ IX ). In this context, the Court refers also to the CPT standards as regards the importance of medical confidentiality in the prison context (see paragraphs 34 and 35 above).", "49. Turning to the facts of the case, the Court considers it significant that the applicant is suffering from a life-threatening condition for which he has required continuous specialist medical supervision by a neuro ‑ radiologist since 2002. In this connection, it takes note of the Court of Appeal ’ s recognition that the monitoring of the applicant ’ s medical correspondence with his external medical specialist, albeit limited to the prison medical officer, involved an “inescapable risk of abuse”. It further notes that the Court of Appeal was careful not to exclude the possibility that in another case it might be disproportionate to refuse confidentiality to a prisoner ’ s medical correspondence (see paragraph 19 above) and its acceptance that allowing the prison medical officer to read such correspondence might lead him to encounter criticism of his own performance, which in turn could create difficulties in respect of the applicant ’ s prison life and treatment. It should not be overlooked that although he was a registered medical practitioner, the prison medical officer was, until the coming into force of section 25(1) of the Offender Management Act 2007, a prison officer. This has now changed as all prison health care is now provided by an external NHS general practitioner (see paragraph 23 above).", "50. This being so, the Court notes the applicant ’ s submission before the domestic courts and before this Court that the monitoring by the prison medical officer of his correspondence with his external medical specialist inhibited their communication and prejudiced reassurance that he was receiving adequate medical treatment while in prison. Given the severity of the applicant ’ s medical condition, the Court, like Mr Justice Collins upon hearing the applicant ’ s claim for judicial review, finds the applicant ’ s concerns and wish to check the quality of the treatment he was receiving in prison to be understandable.", "51. On that account, the Court notes the observations of both Mr Justice Collins and the Court of Appeal that the prison governor ’ s initial decision to grant the applicant ’ s medical correspondence confidentiality indicated, or in the exact words of the Court of Appeal, “strongly suggested” that it “would be a perfectly reasonable course” (see paragraphs 15 and 17 above). It further takes into consideration the procedure that had been first established by the prison governor on 18 September 2002, whereby the applicant ’ s medical correspondence would not be read provided that certain conditions were met (see paragraph 10 above). It is accepted that there were never any grounds to suggest that the applicant had ever abused the confidentiality afforded to his medical correspondence in the past or that he had any intention of doing so in the future. Furthermore, the Court considers it relevant that, although the applicant was detained in a high - security prison which also held Category A (high - risk ) prisoners, he was himself always defined as a Category B prisoner (for whom the highest security conditions are not considered necessary – see paragraph 25 above).", "52. Furthermore, the Court does not consider the Prison Service ’ s arguments as to the general difficulties involved in facilitating confidential medical correspondence for prisoners (see paragraph 14 above) to be of particular relevance to this case. In the present case, the applicant only wished to correspond confidentially with one named medical specialist and the Court of Appeal accepted that her address and qualifications were easily verifiable. Moreover, the medical specialist in question appeared to have been willing and able to mark all correspondence with the applicant with a distinctive stamp, and had demonstrably done so prior to the prison governor ’ s revision of his decision on 28 November 2002. The Court does not share the Court of Appeal ’ s view that the risk that the applicant ’ s medical specialist, whose bona fides was never challenged, might be “intimidated or tricked” into transmitting illicit messages was sufficient to justify the interference with the applicant ’ s Article 8 rights in the exceptional circumstances of the present case. This is particularly so since the Court of Appeal further acknowledged that although the same risk was inherent in the case of secretarial staff of MPs (see paragraph 18 above), the importance of unimpeded correspondence with MPs outweighed that risk.", "53. In light of the severity of the applicant ’ s medical condition, the Court considers that uninhibited correspondence with a medical specialist in the context of a prisoner suffering from a life-threatening condition should be afforded no less protection than the correspondence between a prisoner and an MP. In so finding, the Court refers to the Court of Appeal ’ s concession that it might, in some cases, be disproportionate to refuse confidentiality to a prisoner ’ s medical correspondence and the changes that have since been enacted to the relevant domestic law. The Court also has regard to the submissions of the applicant on this point, namely that the Government have failed to provide sufficient reasons why the risk of abuse involved in correspondence with named doctors whose exact address, qualifications and bona fides are not in question should be perceived as greater than the risk involved in correspondence with lawyers.", "54. In view of the above, the Court finds that the monitoring of the applicant ’ s medical correspondence, limited as it was to the prison medical officer, did not strike a fair balance with his right to respect for his correspondence in the circumstances.", "55. There has accordingly been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "56. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "57. The applicant claimed 10,000 pounds sterling (GBP) (approximately 11,450 euros (EUR) ) in respect of non-pecuniary damage.", "58. The Government submitted that the amount claimed was excessive. They noted that in previous Article 8 cases, which involved interference with a prisoner ’ s correspondence, the finding of a violation was considered sufficient to constitute just satisfaction for the applicant and no damages were awarded.", "59. The Court considers that in the particular circumstances of the case, the finding of a violation would not constitute just satisfaction for non ‑ pecuniary damage sustained by the applicant. Having regard to the violation found and ruling on an equitable basis, the Court awards the applicant EUR 1 ,000 in respect of non-pecuniary damage (see Čiapas v. Lithuania, no. 4902/02, § 30, 16 November 2006, and Zborowski v. Poland (no. 2), no. 45133/06, § 48, 15 January 2008).", "B. Costs and expenses", "60. The applicant also claimed GBP 6,253.25 (approximately EUR 7,162) for the costs and expenses incurred before the Court.", "61. The Government contended that the applicant ’ s claims for legal costs incurred seemed excessive for this type of case, particularly since his solicitors were not based in London. They suggested that the sum of GBP 4,500 (approximately 5,062 EUR) for legal costs would be a more reasonable figure.", "62. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 6,000 for the proceedings before this Court.", "C. Default interest", "63. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. Particular circumstances of the case", "7. Mr Michel Cantoni, a French national who was born in 1947, is the manager of a supermarket owned by the Euromarché chain at Sens ( Yonne ).", "A. The proceedings in the Sens Criminal Court", "8. In 1988 criminal proceedings were brought, at the instigation of the Yonne Pharmacists ’ Association and several individual pharmacists, against the applicant and other managers of supermarkets in the region for unlawfully selling pharmaceutical products. He had sold in his shop aqueous eosin at 1% strength, 70% strength modified alcohol, 10-volume hydrogen peroxide, vitamin C (tablets of 500mg and sachets of powder of 1000mg), inhalations made out of plant essences, pocket inhalers, antiseptic sprays and mineral supplements.", "In their defence the applicant and his fellow accused maintained that the products in question were not medicinal products within the meaning of Article L. 511 of the Public Health Code (see paragraph 18 below) and were accordingly not covered by the pharmacists ’ monopoly.", "9. On 30 September 1988 the Sens Criminal Court found the applicant guilty as charged, fined him 10,000 francs and ordered him to pay damages of 1 franc to each of the civil parties. After considering the products in question individually, it took the view that they were medicinal products, in some cases on account of their function and in others on account of their presentation (see paragraph 19 below).", "B. Proceedings in the Paris Court of Appeal", "10. On 18 May 1989 the Paris Court of Appeal upheld the first-instance judgment, on the following grounds:", "\"It is necessary to examine each of the products marketed listed above in order to determine whether or not they are medicinal products ...:", "(1) BIO-OLIGO with trace elements", "At the bottom of the cardboard packaging for the 36-capsule bottles is to be found the indication ‘ Yeast enriched with minerals ’, ‘ dietary supplement ’. The back of the cardboard packaging carries the following text:", "‘ Introduction: Recent research shows that the earth is losing minerals, while our bodies ’ need for these ‘ new vitamins ’ of the twentieth century is greater than before. [C.] Laboratories produce a range of products specially enriched with minerals to make up for these deficiencies in our diet. ’", "The analysis in grammes for every 100g states:", "Protein 50", "Fat 6", "Carbohydrate 36", "Vitamin B1 30", "Vitamin B6 4", "Energy value 398Kcal/1667KJ", "The analysis also indicates, as applicable, the levels of copper, zinc or calcium to be the following:", "On the bottle of zinc capsules, ‘ Zinc 3000 ’.", "On the bottle of copper capsules, ‘ Copper 4 ’.", "On the bottle of calcium capsules, ‘ Calcium 50 ’.", "Furthermore, there is a precise indication of how each of these elements is supposed to help the human body:", "(a) zinc aids reproduction and sexual development; ‘ it helps the body to fight infection more effectively ’;", "(b) copper ‘ activates our systems of defence against infection - helps combat inflammation ’; and", "(c) calcium is ‘ essential for strong bones - it also improves the circulatory nervous system ’.", "The dosage, which depends on whether the capsules contain zinc, copper or calcium is then given, under the heading:", "‘ Directions for use ’.", "The back of the cardboard packaging carries the mention, at the bottom, ‘ [C.] Laboratories PARIS ’, after specifying that this laboratory has ‘ been advised by Dr P. W. ’, an oligotherapist (sic).", "Therefore, these products, which contain an amalgam of various different substances, are presented as capable of contributing to the prevention or cure of human diseases.", "They are medicinal products within the meaning of the above-mentioned legislation.", "(2) 70% STRENGTH MODIFIED ALCOHOL 120 ML is sold in 120ml bottles. The label bears the above words and, in the bottom left-hand corner, on a blue and green background, four small white squares in the shape of a cross, irresistibly evoking the image of a pharmacist ’ s sign. To the right of this, in large white letters on the same blue and green background, the name ‘ [V.] Laboratories, PARIS ’ appears with, in smaller letters, its address.", "The product in question smells strongly of camphor.", "Thus the way in which this product is presented - the bottle, and the cross alongside the name ‘ [V.] Laboratories ’ - suggests that it is in fact the pharmaceutical product well known by that name and which is used as an antiseptic, particularly in surgery. Therefore, by virtue of its presentation, this is also a medicinal product and not simply a hygiene or beauty product.", "(3) 120ml BOTTLE OF 10-VOLUME HYDROGEN PEROXIDE. This bears the words ‘ do not swallow ’ and ‘ in the event of contact with the eyes, rinse immediately ’. It has the same white cross and words ‘ [V.] Laboratories PARIS ’ as the modified alcohol mentioned above, on a pale blue and darker blue background. For the same reasons, it evokes the medicinal product known by that name. This is another medicinal product by virtue of its presentation, which distinguishes it from a mere hygiene or beauty product.", "(4) ‘ VITAMIN (500) ’ is sold in cardboard packets of 24 chewable tablets, on which is printed: (a) the white cross described above and the name ‘ [V.] Laboratories PARIS ’, on a yellow and orange background; (b) the recommended dosage, specifying that vitamin C should not be taken at the end of the day; and (c) the composition of each tablet, namely: coated ascorbic acid and sodium ascorbate (with an indication of the quantities); and the excipient, a compound of several substances.", "This is also a medicinal product, at least by virtue of its presentation, since there is nothing to distinguish it from a genuine pharmaceutical product which has had to meet the required standards in terms of dosage, quality control and production. It is of little importance whether the medicinal product really has the effect claimed or not; on the other hand, there are known contra-indications to the excessive use of vitamin C.\"", "C. Proceedings in the Court of Cassation", "11. Mr Cantoni appealed to the Court of Cassation on points of law. He complained in particular that there had been a violation of Article 7 para. 1 of the Convention (art. 7-1) and of Articles L. 511, L. 512 and L. 517 of the Public Health Code (see paragraph 18 below). He contended that, especially when applied to parapharmaceutical products, the notion of medicinal product, as defined in the provisions on which his conviction had been based, was not sufficiently clear to enable him to determine with accuracy what acts would incur criminal liability.", "On 29 May 1990 the Criminal Division of the Court of Cassation dismissed the appeal in the following terms:", "\"... the appellate court held, referring to the wording on the cardboard packaging and bottles containing the above-mentioned products, that these products were presented as being capable of contributing to the prevention and cure of human diseases and that, therefore, they constitute medicinal products within the meaning of Article L. 511 of the Public Health Code.", "The Court of Appeal thus gave a proper legal basis for its decision without laying itself open to the complaints put forward ... The provisions of Article L. 511 of the Public Health Code ... are not contrary to the principle that only the law can define a criminal offence and prescribe a penalty; nor are they incompatible with the instruments referred to in the grounds of appeal ...\"" ]

[ "II. Relevant community and domestic law", "A. Community law", "1. Directive 65/65 of 26 January 1965", "12. According to Article 1 of the Community Directive of 26 January 1965 (Directive EEC 65/65, OJ no. L. 369 of 9 February 1965), as amended on several occasions:", "\"... the following shall have the meanings hereby assigned to them ...", "2. Medicinal product:", "Any substance or combination of substances presented for treating or preventing disease in human beings or animals.", "Any substance or combination of substances which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring, correcting or modifying physiological functions in human beings or in animals is likewise considered a medicinal product.\"", "2. Case-law of the Court of Justice of the European Communities", "13. The Court of Justice of the European Communities has received several references for preliminary rulings concerning the interpretation of that definition. In its Van Bennekom judgment of 30 November 1983 (case 227/82 [1983] ECR 4 3883), it held as follows in respect of vitamin preparations:", "\"It is ... necessary to take the view that a product is ‘ presented for treating or preventing disease ’ within the meaning of Directive 65/65 not only when it is expressly ‘ indicated ’ or ‘ recommended ’ as such, possibly by means of labels, leaflets or oral representation, but also whenever any averagely well-informed consumer gains the impression, which, provided it is definite, may even result from implication, that the product in question should, regard being had to its presentation, have an effect such as is described in the first part of the Community definition.", "In particular the external form given to the product in question - such as that of a tablet, pill or capsule - may in this connection serve as strong evidence of the seller ’ s or manufacturer ’ s intention to market that product as a medicinal product. Such evidence cannot, however, be the sole or conclusive evidence, since otherwise certain food products which are traditionally presented in a similar form to pharmaceutical products would also be covered.", "... substances such as the vitamin preparations in issue, which are not ‘ indicated or recommended ’ expressly as being suitable for curing, treating or preventing an infection, may nonetheless constitute substances ‘ presented for treating or preventing disease ’ within the meaning of the Community definition of ‘ medicinal products ’ contained in Directive 65/65.", "...", "It is ... apparent from the file and from the observations submitted to the Court, taken as a whole, that it is impossible in the present state of scientific knowledge to state whether the criterion of concentration alone is always sufficient in order to be able to determine whether a vitamin preparation constitutes a medicinal product; still less therefore is it possible to specify the level of concentration above which such a vitamin preparation would fall within the Community definition of a medicinal product.", "The answer to be given to the national court should therefore be that the classification of a vitamin as a medicinal product within the meaning of the second part of the definition in Directive 65/65 must be carried out case by case, having regard to the pharmacological properties of each such vitamin to the extent to which they have been established in the present state of scientific knowledge.\" (paragraphs 18-20 and 28-29)", "14. The Court of Justice has confirmed this approach on several occasions, clarifying certain points. Thus in its Delattre judgment of 21 March 1991 (C-369/88 [1991] ECR 1487), concerning eleven different products, including slimming products and preparations to combat tiredness, it stated:", "\"... a product may be regarded as a medicinal product by virtue of its presentation if its form and the manner in which it is packaged render it sufficiently similar to a medicinal product and, in particular, if on its packing and the information provided with it reference is made to research by pharmaceutical laboratories or to methods or substances developed by medical practitioners or even to testimonials from medical practitioners commending the qualities of the product in question. A statement that a product is not a medicinal product is persuasive evidence which the national court may take into consideration, but it is not in itself conclusive.\" (paragraph 41)", "15. In the Monteil and Samanni judgment of 21 March 1991 (60/89, [1991] ECR 1 1547), concerning 2% strength eosin and 70% strength modified alcohol, the Court of Justice held:", "\"... the concept of ‘ presentation ’ of a product must be broadly construed and a product is ‘ presented for treating or preventing disease ’ within the meaning of Directive 65/65 not only when it is expressly ‘ indicated ’ or ‘ recommended ’ as such, possibly by means of labels, leaflets or oral representation, but also whenever any averagely well-informed consumer gains the impression, which, provided it is definite, may even result from implication, that the product in question should, having regard to its presentation, have the properties in question.", "... the external form given to the product in question may serve as strong evidence, but is not the sole or conclusive evidence; it must be stated that the ‘ form ’ must be taken to mean not only the form of the product itself but also that of its packaging, which may, for reasons of marketing policy, tend to make it resemble a medicinal product, and account must also be taken of the attitude of an averagely well-informed consumer, in whom the form given to a product may inspire particular confidence similar to that normally inspired in him by proprietary medicinal products, having regard to the safeguards normally associated with the manufacture and marketing of the latter type of product.", "...", "... it is for the national authorities to determine, subject to review by the courts, whether the eosin of a strength of 2% and modified alcohol of a strength of 70% constitute medicinal products by virtue of their function within the meaning of the second sub-paragraph of Article 1 (2) of Directive 65/65. In that regard, account must be taken of the adjuvants also entering into the composition of the product, the manner in which it is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail.", "...", "... although in principle the member States may reserve to pharmacists the right to make retail sales of products that fall within the Community definition of medicinal products and although, in those circumstances, their monopoly over those products may be presumed to constitute an appropriate way of protecting public health, evidence to the contrary may be produced with respect to certain products whose use would not involve any serious danger to public health and whose inclusion within the pharmacists ’ monopoly would seem manifestly disproportionate, that is to say contrary to the principles laid down by the Court for the interpretation of Articles 30 and 36 of the Treaty.", "If pharmacists are granted a monopoly of other products, such as ‘ parapharmaceutical products ’, which may be of widely varying kinds, the need for such monopoly in order to protect public health or the health of consumers must, regardless of how the products concerned are classified under national law, be established in each individual case, and those two aims must not be obtainable by measures less restrictive of intra-Community trade.", "It is for the national court to decide, having regard to those criteria, whether the action before it is well-founded.\" (paragraphs 23-24, 29 and 43-45)", "16. In the Upjohn judgment of 16 April 1991 (C-112/89 [1991] 1 ECR 1703), the Court of Justice recalled that:", "\"It is for the national court to determine on a case-by-case basis the classification of each product having regard to its pharmacological properties as they may be ascertained in the current state of scientific knowledge, to the way in which it is used, to the extent to which it is sold and to consumers ’ familiarity with it.\" (paragraph 23)", "17. Finally in the Ter Voort judgment of 28 October 1992 (C-219/91 [1992] ECR 5485), the Court of Justice held:", "\"... a product recommended or indicated as having prophylactic or therapeutic properties is a medicinal product within the meaning of the provisions of the first subparagraph of Article 1 (2) of Directive 65/65, even if it is generally regarded as a foodstuff and even if in the current state of scientific knowledge it has no known therapeutic effect.", "...", "The conduct, action and approaches of the manufacturer or the seller which disclose his intention to make the product he markets appear to be a medicinal product in the eyes of the averagely well-informed consumer may therefore be conclusive for the purposes of deciding whether a product should be regarded as a medicinal product by virtue of its presentation.\" (paragraphs 21 and 26)", "B. National law", "1. The Public Health Code", "18. At the material time, the relevant provisions of the Public Health Code were as follows:", "Article L. 511", "\" ‘ Medicinal product ’ shall mean any substance or combination of substances presented for treating or preventing disease in human beings or animals and also any product which may be administered to human beings or animals with a view to making a medical diagnosis or to restoring, correcting or modifying their physiological functions.", "In particular, the following shall be considered as medicinal products:", "products referred to in Article L. 658-1 of this Code:", "which contain any substance having a therapeutic effect as defined in paragraph 1 above; or", "containing a greater dosage or concentration of poisonous substances than that laid down in the list referred to in Article L. 658-5 of this Code, or containing poisonous substances which do not appear on that list;", "dietary products containing chemical or biological substances which are not themselves foodstuffs but which are added to dietary products, either to give them special properties which are sought after for the purposes of dietary therapy or to make them suitable for use in medical tests.", "...\"", "Article L. 512", "\"Only pharmacists may ...:", "(1) prepare medicinal products for use in the treatment of human beings;", "...", "(3) sell, whether wholesale or retail, or otherwise supply the public with such products or articles;", "...\"", "Article L. 517", "\"Any person who knowingly carries out acts whose performance is restricted exclusively to pharmacists, without being qualified to act as a pharmacist shall be sentenced to a fine of between FRF 2,400 and FRF 12,000 and, if the offence is repeated, to a fine of between FRF 4,800 and FRF 24,000 and to a term of imprisonment of between six days and six months, or to either of these penalties.\"", "2. Case-law", "19. On the basis of the above provisions the courts have classified products as medicinal products by virtue of their function, by virtue of their presentation or by virtue of their composition.", "20. According to the information provided to the Court, the courts sitting as tribunals of fact are divided on the question whether the products for whose sale the applicant was convicted are medicinal products within the meaning of Article L. 511 of the Public Health Code.", "Thus vitamin C was classified as a medicinal product by the Courts of Appeal of Douai (9 April 1987), Poitiers (17 December 1987), Angers (5 May 1988) and Versailles (22 January 1996 in plenary session). However, decisions taking a contrary view were given by the Courts of Appeal of Douai (20 February 1988, 28 October 1988 and 23 March 1989), Angers (30 January 1989), Colmar (23 March 1988), Dijon (15 December 1988) and Paris (23 May 1995).", "70% strength alcohol was designated as a medicinal product by the Courts of Appeal of Poitiers (4 December 1986 and 28 January 1987), Aix-en-Provence (17 November 1987) and Colmar (23 March 1988), but not by the Courts of Appeal of Dijon (18 May 1988 - four judgments - and 15 December 1988), Limoges (18 November 1988), Paris (14 December 1988 and 21 February 1995) and Douai (23 March 1989).", "Mineral supplements ( oligo-éléments ) have been regarded as medicinal products by the Courts of Appeal of Poitiers (17 December 1987) and Angers (5 May 1988), but not by those of Colmar (23 March 1988), Dijon (18 May and 15 December 1988), Angers (30 January 1989) and Douai (23 March 1989).", "As regards 10-volume hydrogen peroxide and 1% or 2% strength eosin, the majority of the courts sitting as tribunals of fact consider that these products are mere hygiene products, for example, in respect of hydrogen peroxide, the Courts of Appeal of Colmar (23 March and 18 May 1988), Douai (28 October 1988) and Paris (14 December 1988); and, in respect of eosin, the Courts of Appeal of Dijon (18 May 1988) and Paris (14 December 1988 and 21 February 1995).", "21. To date the Court of Cassation has always either upheld decisions classifying a parapharmaceutical -type product as a medicinal product (judgments of 4 April 1957, 19 February 1959, 24 July 1967, 23 November 1967, 28 May 1968, 13 April 1976, 5 May 1981, 6 December 1988 - two judgments -, 29 May 1990 - see paragraph 11 above - and 25 May 1994), or quashed decisions refusing to accord this designation to such products (judgments of 19 December 1989 - three judgments -, 8 March 1990, 6 March 1992 - plenary court -, 25 May 1994 - two judgments).", "PROCEEDINGS BEFORE THE COMMISSION", "22. Mr Cantoni lodged his application with the Commission (application no. 17862/91) on 26 November 1990. He complained that the statutory definition of medicinal product lacked sufficient clarity and precision to satisfy the requirements of Article 7 para. 1 of the Convention (art. 7-1).", "23. The Commission declared the application admissible on 10 January 1994. In its report of 12 April 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to nine, that there had been a violation of that provision (art. 7-1). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "24. In their memorial to the Court, the Government \"called for the application to be dismissed\".", "25. At the hearing the applicant ’ s lawyers requested the Court to hold that Article L. 511 of the Public Health Code \"[was] not sufficiently precise to protect the rights of individuals in France \".", "AS TO THE LAW", "ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION (art. 7)", "26. The applicant complained of a violation of Article 7 of the Convention (art. 7), which is worded as follows:", "\"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.", "2. This Article (art. 7) shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.\"", "He maintained that the definition of medicinal product contained in Article L. 511 of the Public Health Code was very imprecise and left a wide discretion to the courts. The Court of Cassation ’ s case-law in this field was marked by arbitrariness and a lack of certainty which were themselves directly responsible for the conflicting classifications given to parapharmaceutical products by the lower courts. This state of affairs still persisted and concerned all the substances in question, whether hydrogen peroxide, 70% strength alcohol or vitamin C. The case-law of the Court of Justice of the European Communities was not particularly helpful because it left it to the national courts to decide on a case-by-case basis whether a substance should be classified as a medicinal product and referred to notions that themselves lacked precision and were not sufficiently technical.", "In short, the definition found in the legislation and the case-law failed to afford the requisite foreseeability and accessibility. It followed that Mr Cantoni could not reasonably have been expected to appreciate, before putting the products in question up for sale, what constituted the material element of the offence in respect of which he was prosecuted.", "27. The Commission in substance subscribed to the applicant ’ s view. It observed that, although the criteria developed by the Convention institutions with regard to other provisions could be transposed to the field of application of Article 7 (art. 7), that provision (art. 7) nevertheless required that they be applied more strictly.", "28. Referring to the case-law of the Court, the Government argued that a law could be formulated in relatively general terms making it possible for its provisions to be adapted, through the process of interpretation, to changing situations. Even the most perfectly drafted law required a judge to clarify its limits and Article L. 511 of the Public Health Code was no exception.", "The definition given in Article L. 511 was based in particular on extensive case-law concerning the notion of medicinal product and was no more open to criticism than any other statutory definition. Indeed it was actually far more precise than many of the definitions to be found in the Criminal Code. Above all, the legislature had no alternative but to have recourse to such a definition because to date no more satisfactory definition of medicinal product had been established. The only other solution - the drawing up of exhaustive lists - was not practicable because in this field there were thousands of different products and their number varied on an almost daily basis. A list would therefore never correspond to the reality. Indeed this explained why in its Directive 65/65 the Council of Ministers of the European Economic Community had adopted the French approach, a solution for which the majority of the States of the European Union had subsequently opted. A finding that Article L. 511 was defective would therefore amount to making the same finding in respect of Directive 65/65.", "In addition, the definition of medicinal product had given rise to hardly any problems in the criminal courts until the end of the 1980s. The disputes that occurred at that time had been created artificially and deliberately by supermarket chains. They had succeeded in disorientating some of the lower courts, but not the Court of Cassation, which had applied the same principles for more than a century.", "29. As the Court has already held, Article 7 (art. 7) embodies, inter alia, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision (art. 7) and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable.", "When speaking of \"law\" Article 7 (art. 7) alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see, as the most recent authority, the S.W. and C.R. v. the United Kingdom judgments of 22 November 1995, Series A nos. 335-B and 335-C, pp. 41-42, para. 35, and pp. 68-69, para. 33, respectively). In the present case only that last aspect is in issue.", "30. The fact, pointed to by the Government, that Article L. 511 of the Public Health Code is based almost word for word on Community Directive 65/65 (see paragraph 12 above) does not remove it from the ambit of Article 7 of the Convention (art. 7).", "31. As the Court has already had occasion to note, it is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see, among other authorities, the Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 19, para. 40).", "32. Like many statutory definitions, that of \"medicinal product\" contained in Article L. 511 of the Public Health Code is rather general (see paragraph 18 above). When the legislative technique of categorisation is used, there will often be grey areas at the fringes of the definition. This penumbra of doubt in relation to borderline facts does not in itself make a provision incompatible with Article 7 (art. 7), provided that it proves to be sufficiently clear in the large majority of cases. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain, taking into account the changes in everyday practice.", "The Court must accordingly ascertain whether in the present case the text of the statutory rule read in the light of the accompanying interpretive case-law satisfied this test at the relevant time.", "33. In the applicant ’ s submission, other solutions were available to the authorities, such as recourse to exhaustive lists of medicinal products. It is, however, not for the Court to express a view on the appropriateness of methods chosen by the legislature of a Contracting State; its task is confined to determining whether they are in conformity with the Convention.", "34. Nor is the Court persuaded by the argument based on the decisions of the lower courts cited by the applicant and concerning the type of \"borderline\" product for the sale of which he was convicted. There were indeed divergencies in the decisions of the lower courts (see paragraph 20 above). According to the Government, these may be explained essentially by the fact that the comparisons of decisions did not take account of prosecutions brought in respect of different concentrations of the products in question.", "The Court notes in the first place that the applicant did not indicate whether the decisions cited classified these products as medicinal products by virtue of their function or by virtue of their presentation, and, in the latter case, whether the presentation was the same on each occasion.", "Even assuming that the decisions dealt with identical cases, the questions before the lower courts were principally questions of fact. For the first category of decisions, concerning products regarded as medicinal by virtue of their function, it was essentially a matter of establishing the current state of scientific knowledge. For the second category, that is decisions relating to products regarded as medicinal by virtue of their presentation, the courts aimed to gauge the impression gained by the averagely well-informed consumer.", "Moreover, there is, in the Court ’ s view, one decisive consideration. From, at the latest, 1957 onwards the Court of Cassation has always either confirmed the decisions of the courts below classifying a parapharmaceutical -type product as medicinal or quashed decisions which denied that classification. It has never upheld a decision by a lower court finding that such a product fell outside the notion of medicinal product (see paragraph 21 above). Thus, well before the events in the present case, the Court of Cassation had adopted a clear position on this matter, which with the passing of time became even more firmly established.", "35. The Court recalls that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed (see the Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 26, para. 68). A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, p. 71, para. 37). This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails.", "With the benefit of appropriate legal advice, Mr Cantoni, who was, moreover, the manager of a supermarket, should have appreciated at the material time that, in view of the line of case-law stemming from the Court of Cassation and from some of the lower courts, he ran a real risk of prosecution for unlawful sale of medicinal products.", "36. There has accordingly been no breach of Article 7 (art. 7)." ]

[ "I. the circumstances of the case", "7. On 12 April 1994 the applicant applied to the Electoral Registration Officer for Gibraltar to be registered as a voter at the elections to the European Parliament. The Electoral Registration Officer replied on 25 April 1994:", "“The provisions of Annex II of the EC Act on Direct Elections of 1976 limit the franchise for European parliamentary elections to the United Kingdom [see paragraph 18 below]. This Act was agreed by all member States and has treaty status. This means that Gibraltar will not be included in the franchise for the European parliamentary elections.”" ]

[ "II. relevant law in gibraltar", "A. Gibraltar and the United Kingdom", "8. Gibraltar is a dependent territory of the United Kingdom. It forms part of Her Majesty the Queen’s Dominions, but not part of the United Kingdom. The United Kingdom parliament has the ultimate authority to legislate for Gibraltar, but in practice exercises it rarely.", "9. Executive authority in Gibraltar is vested in the Governor, who is the Queen’s representative. Pursuant to a dispatch of 23 May 1969, certain “defined domestic matters” are allocated to the locally elected Chief Minister and his Ministers; other matters (external affairs, defence and internal security) are not “defined” and the Governor thus retains responsibility for them.", "10. The Chief Minister and the Government of Gibraltar are responsible to the Gibraltar electorate via general elections to the House of Assembly. The House of Assembly is the domestic legislature in Gibraltar. It has the right to make laws for Gibraltar on “defined domestic matters”, subject to, inter alia, a power in the Governor to refuse to assent to legislation.", "B. Gibraltar and the European Community", "11. The Treaty Establishing the European Community (“the EC Treaty”) applies to Gibraltar by virtue of its Article 227(4), which provides that it applies to the European territories for whose external relations a member State is responsible. The United Kingdom acceded to the precursor to the EC Treaty, the Treaty Establishing the European Economic Community of 25 March 1957 (“the EEC Treaty”), by a Treaty of Accession of 22 January 1972.", "12. Gibraltar is excluded from certain parts of the EC Treaty by virtue of the Treaty of Accession. In particular, Gibraltar does not form part of the customs territory of the Community, with the result that the provisions on free movement of goods do not apply; it is treated as a third country for the purposes of the common commercial policy; it is excluded from the common market in agriculture and trade in agricultural products and from the Community rules on value-added tax and other turnover taxes, and it makes no contribution to the Community budget. European Community (“EC”) legislation concerning, inter alia, such matters as free movement of persons, services and capital, health, the environment and consumer protection applies in Gibraltar.", "13. Relevant EC legislation becomes part of Gibraltar law in the same way as in other parts of the Union: regulations are directly applicable, and directives and other legal acts of the EC which call for domestic legislation are transposed by domestic primary or secondary legislation.", "14. Although Gibraltar is not part of the United Kingdom in domestic terms, by virtue of a declaration made by the United Kingdom government at the time of the entry into force of the British Nationality Act 1981, the term “nationals” and derivatives used in the EC Treaty are to be understood as referring, inter alia, to British citizens and to British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar.", "C. The European Community and the European Parliament", "15. The powers of the European Community are divided amongst the institutions set up by the EC Treaty, including the European Parliament, the Council, the Commission (“the European Commission”) and the Court of Justice.", "16. Before 1 November 1993, the date of the entry into force of the Maastricht Treaty on European Union of 7 February 1992 (“the Maastricht Treaty”), Article 137 of the EEC Treaty referred to the “advisory and supervisory powers” of the European Parliament. Since 1 November 1993, the words “advisory and supervisory powers” have been removed and the role of the European Parliament has been expressed by Article 137 to be to “exercise the powers conferred upon it by [the] Treaty”. The principal powers of the European Parliament under the EC Treaty may now be summarised as follows:", "Article 138b provides that the European Parliament shall “participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 189b and 189c and by giving its assent or delivering advisory opinions”. Further, the second paragraph of Article 138b empowers the European Parliament to request the European Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing the Treaty.", "The reference in the first paragraph of Article 138b to “assent” refers to a procedure whereby the EC Treaty (for example, in Articles 8a(2) and 130d) provides for adoption of provisions by the Council on a proposal from the European Commission and after obtaining the assent of the European Parliament. The procedure is called the “assent procedure”.", "Article 144 provides for a motion of censure by the European Parliament over the European Commission whereby if a motion is carried by a two-thirds majority, representing a majority of the members, the members of the European Commission are required to resign as a body.", "Article 158 provides that the European Parliament is to be consulted before the President of the European Commission is nominated, and the members of the European Commission, once nominated, are subject as a body to a vote of approval by the European Parliament.", "The first paragraph of Article 189 provides:", "“In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.”", "Article 189b provides:", "“1. Where reference is made in the Treaty to this Article for the adoption of an act, the following procedure [ [4] ] shall apply.", "2. The Commission shall submit a proposal to the European Parliament and the Council.", "The Council, acting by a qualified majority after obtaining the opinion of the European Parliament, shall adopt a common position. The common position shall be communicated to the European Parliament. The Council shall inform the European Parliament fully of the reasons which led it to adopt its common position. The Commission shall inform the European Parliament fully of its position.", "If, within three months of such communication, the European Parliament:", "(a) approves the common position, the Council shall definitively adopt the act in question in accordance with that common position;", "(b) has not taken a decision, the Council shall adopt the act in question in accordance with its common position;", "(c) indicates, by an absolute majority of its component Members, that it intends to reject the common position, it shall immediately inform the Council. The Council may convene a meeting of the Conciliation Committee referred to in paragraph 4 to explain further its position. The European Parliament shall thereafter either confirm, by an absolute majority of its component Members, its rejection of the common position, in which event the proposed act shall be deemed not to have been adopted, or propose amendments in accordance with subparagraph (d) of this paragraph;", "(d) proposes amendments to the common position by an absolute majority of its component Members, the amended text shall be forwarded to the Council and to the Commission which shall deliver an opinion on those amendments.", "3. If, within three months of the matter being referred to it, the Council, acting by a qualified majority, approves all the amendments of the European Parliament, it shall amend its common position accordingly and adopt the act in question; however, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. If the Council does not approve the act in question, the President of the Council, in agreement with the President of the European Parliament, shall forthwith convene a meeting of the Conciliation Committee.", "4. The Conciliation Committee, which shall be composed of the members of the Council or their representatives and an equal number of representatives of the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the representatives of the European Parliament. The Commission shall take part in the Conciliation Committee’s proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council.", "5. If, within six weeks of its being convened, the Conciliation Committee approves a joint text, the European Parliament, acting by an absolute majority of the votes cast, and the Council, acting by a qualified majority, shall have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If one of the two institutions fails to approve the proposed act, it shall be deemed not to have been adopted.", "6. Where the Conciliation Committee does not approve a joint text, the proposed act shall be deemed not to have been adopted unless the Council, acting by a qualified majority within six weeks of expiry of the period granted to the Conciliation Committee, confirms the common position to which it agreed before the conciliation procedure was initiated, possibly with amendments proposed by the European Parliament. In this case, the act in question shall be finally adopted unless the European Parliament, within six weeks of the date of confirmation by the Council, rejects the text by an absolute majority of its component Members, in which case the proposed act shall be deemed not to have been adopted.", "7. The periods of three months and six weeks referred to in this Article may be extended by a maximum of one month and two weeks respectively by common accord of the European Parliament and the Council. The period of three months referred to in paragraph 2 shall be automatically extended by two months where paragraph 2(c) applies.", "8. The scope of the procedure under this Article may be widened, in accordance with the procedure provided for in Article N(2) of the Treaty on European Union, on the basis of a report to be submitted to the Council by the Commission by 1996 at the latest.”", "Article 189c provides:", "“Where reference is made in this Treaty to this Article for the adoption of an act, the following procedure [ [5] ] shall apply:", "(a) The Council, acting by a qualified majority on a proposal from the Commission and after obtaining the opinion of the European Parliament, shall adopt a common position.", "(b) The Council’s common position shall be communicated to the European Parliament. The Council and the Commission shall inform the European Parliament fully of the reasons which led the Council to adopt its common position and also of the Commission’s position.", "If, within three months of such communication, the European Parliament approves this common position or has not taken a decision within that period, the Council shall definitively adopt the act in question in accordance with the common position.", "(c) The European Parliament may, within the period of three months referred to in point (b), by an absolute majority of its component Members, propose amendments to the Council’s common position. The European Parliament may also, by the same majority, reject the Council's common position. The result of the proceedings shall be transmitted to the Council and the Commission.", "If the European Parliament has rejected the Council’s common position, unanimity shall be required for the Council to act on a second reading.", "(d) The Commission shall, within a period of one month, re-examine the proposal on the basis of which the Council adopted its common position, by taking into account the amendments proposed by the European Parliament.", "The Commission shall forward to the Council, at the same time as its re-examined proposal, the amendments of the European Parliament which it has not accepted, and shall express its opinion on them. The Council may adopt these amendments unanimously.", "(e) The Council, acting by a qualified majority, shall adopt the proposal as re-examined by the Commission.", "Unanimity shall be required for the Council to amend the proposal as re-examined by the Commission.", "(f) In the cases referred to in points (c), (d) and (e), the Council shall be required to act within a period of three months. If no decision is taken within this period, the Commission proposal shall be deemed not to have been adopted.", "(g) The periods referred to in points (b) and (f) may be extended by a maximum of one month by common accord between the Council and the European Parliament.”", "Article 203 makes provision for the budget of the Community. In particular, after the procedure for making modifications and amendments to the draft budget, it is open to the European Parliament to reject the draft budget and to ask for a new budget to be submitted (Article 203(8)).", "Article 206 provides for parliamentary involvement in the process of discharging the European Commission in respect of the implementation of the budget. In particular, the European Parliament may ask to hear the European Commission give evidence on the execution of expenditure, and the European Commission is required to submit information to the European Parliament if so requested. Further, the European Commission is required to take all appropriate steps to act on the observations of the European Parliament in this connection.", "D. Elections and the European Parliament", "17. Article 138(3) of the EEC Treaty provided, in 1976, that the European Parliament was to draw up proposals for elections. The Council was required to “lay down the appropriate provisions, which it [was to] recommend to Member States for adoption in accordance with their respective constitutional requirements”. Identical provision was made in the European Coal and Steel Community Treaty and the European Atomic Energy Community Treaty.", "18. In accordance with Article 138(3), Council Decision 76/787 (“the Council Decision”), signed by the President of the Council of the European Communities and the then member States’ foreign ministers, laid down such provisions. The specific provisions were set out in an Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 20 September 1976 (“the 1976 Act”), signed by the respective foreign ministers, which was attached to the Council Decision. Article 15 of the 1976 Act provides that “Annexes I to III shall form an integral part of this Act”. Annex II to the 1976 Act states that “The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom”.", "E. The application of the Convention to Gibraltar", "19. By a declaration dated 23 October 1953, the United Kingdom, pursuant to former Article 63 of the Convention, extended the Convention to Gibraltar. Protocol No. 1 applies to Gibraltar by virtue of a declaration made under Article 4 of Protocol No. 1 on 25 February 1988.", "PROCEEDINGS BEFORE THE COMMISSION", "20. Ms Matthews applied to the Commission on 18 April 1994. She alleged a violation of Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention.", "21. The Commission declared the application (no. 24833/94) admissible on 16 April 1996. In its report of 29 October 1997 (former Article 31 of the Convention), it expressed the opinion that there had been no violation of Article 3 of Protocol No. 1 (eleven votes to six) and that there had been no violation of Article 14 of the Convention (twelve votes to five). The full text of the Commission’s opinion and of the five separate opinions contained in the report is reproduced as an annex to this judgment [6].", "FINAL SUBMISSIONS TO THE COURT", "22. The Government asked the Court to find that there had been no violation of the Convention.", "23. The applicant, for her part, asked the Court to find a breach of her rights under Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention. She also claimed an award of costs.", "THE LAW", "I. alleged violation of article 3 of Protocol no. 1", "24. The applicant alleged a breach of Article 3 of Protocol No. 1, which provides:", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "25. The Government maintained that, for three main reasons, Article 3 of Protocol No. 1 was not applicable to the facts of the present case or, in the alternative, that there had been no violation of that provision.", "A. Whether the United Kingdom can be held responsible under the Convention for the lack of elections to the European Parliament in Gibraltar", "26. According to the Government, the applicant’s real objection was to Council Decision 76/787 and to the 1976 Act concerning elections to the European Parliament (see paragraph 18 above). That Act, which had the status of a treaty, was adopted in the Community framework and could not be revoked or varied unilaterally by the United Kingdom. The Government underlined that the European Commission of Human Rights had refused on a number of occasions to subject measures falling within the Community legal order to scrutiny under the Convention. Whilst they accepted that there might be circumstances in which a Contracting Party might infringe its obligations under the Convention by entering into treaty obligations which were incompatible with the Convention, they considered that in the present case, which concerned texts adopted in the framework of the European Community, the position was not the same. Thus, acts adopted by the Community or consequent to its requirements could not be imputed to the member States, together or individually, particularly when those acts concerned elections to a constitutional organ of the Community itself. At the hearing, the Government suggested that to engage the responsibility of any State under the Convention, that State must have a power of effective control over the act complained of. In the case of the provisions relating to the elections to the European Parliament, the United Kingdom Government had no such control.", "27. The applicant disagreed. For her, the Council Decision and 1976 Act constituted an international treaty, rather than an act of an institution whose decisions were not subject to Convention review. She thus considered that the Government remained responsible under the Convention for the effects of the Council Decision and 1976 Act. In the alternative – that is, if the Council Decision and 1976 Act were to be interpreted as involving a transfer of powers to the Community organs – the applicant argued, by reference to Commission case-law, that in the absence of any equivalent protection of her rights under Article 3 of Protocol No. 1, the Government in any event retained responsibility under the Convention.", "28. The majority of the Commission took no stand on the point, although it was referred to in concurring and dissenting opinions.", "29. Article 1 of the Convention requires the High Contracting Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention (see the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29).", "30. The Court notes that the parties do not dispute that Article 3 of Protocol No. 1 applies in Gibraltar. It recalls that the Convention was extended to the territory of Gibraltar by the United Kingdom’s declaration of 23 October 1953 (see paragraph 19 above), and Protocol No. 1 has been applicable in Gibraltar since 25 February 1988. There is therefore clearly territorial “jurisdiction” within the meaning of Article 1 of the Convention.", "31. The Court must nevertheless consider whether, notwithstanding the nature of the elections to the European Parliament as an organ of the EC, the United Kingdom can be held responsible under Article 1 of the Convention for the absence of elections to the European Parliament in Gibraltar, that is, whether the United Kingdom is required to “secure” elections to the European Parliament notwithstanding the Community character of those elections.", "32. The Court observes that acts of the EC as such cannot be challenged before the Court because the EC is not a Contracting Party. The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be “secured”. Member States’ responsibility therefore continues even after such a transfer.", "33. In the present case, the alleged violation of the Convention flows from an annex to the 1976 Act, entered into by the United Kingdom, together with the extension to the European Parliament’s competences brought about by the Maastricht Treaty. The Council Decision and the 1976 Act (see paragraph 18 above), and the Maastricht Treaty, with its changes to the EEC Treaty, all constituted international instruments which were freely entered into by the United Kingdom. Indeed, the 1976 Act cannot be challenged before the European Court of Justice for the very reason that it is not a “normal” act of the Community, but is a treaty within the Community legal order. The Maastricht Treaty, too, is not an act of the Community, but a treaty by which a revision of the EEC Treaty was brought about. The United Kingdom, together with all the other parties to the Maastricht Treaty, is responsible ratione materiae under Article 1 of the Convention and, in particular, under Article 3 of Protocol No. 1, for the consequences of that Treaty.", "34. In determining to what extent the United Kingdom is responsible for “securing” the rights in Article 3 of Protocol No. 1 in respect of elections to the European Parliament in Gibraltar, the Court recalls that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, for example, the above-mentioned United Communist Party of Turkey and Others judgment, pp. 18-19, § 33). It is uncontested that legislation emanating from the legislative process of the European Community affects the population of Gibraltar in the same way as legislation which enters the domestic legal order exclusively via the House of Assembly. To this extent, there is no difference between European and domestic legislation, and no reason why the United Kingdom should not be required to “secure” the rights in Article 3 of Protocol No. 1 in respect of European legislation, in the same way as those rights are required to be “secured” in respect of purely domestic legislation. In particular, the suggestion that the United Kingdom may not have effective control over the state of affairs complained of cannot affect the position, as the United Kingdom’s responsibility derives from its having entered into treaty commitments subsequent to the applicability of Article 3 of Protocol No. 1 to Gibraltar, namely the Maastricht Treaty taken together with its obligations under the Council Decision and the 1976 Act. Further, the Court notes that on acceding to the EC Treaty, the United Kingdom chose, by virtue of Article 227(4) of the Treaty, to have substantial areas of EC legislation applied to Gibraltar (see paragraphs 11 to 14 above).", "35. It follows that the United Kingdom is responsible under Article 1 of the Convention for securing the rights guaranteed by Article 3 of Protocol No. 1 in Gibraltar regardless of whether the elections were purely domestic or European.", "B. Whether Article 3 of Protocol No. 1 is applicable to an organ such as the European Parliament", "36. The Government claimed that the undertaking in Article 3 of Protocol No. 1 was necessarily limited to matters falling within the power of the parties to the Convention, that is, sovereign States. They submitted that the “legislature” in Gibraltar was the House of Assembly, and that it was to that body that Article 3 of Protocol No. 1 applied in the context of Gibraltar. For the Government, there was no basis upon which the Convention could place obligations on Contracting Parties in relation to elections for the parliament of a distinct, supranational organisation, and they contended that this was particularly so when the member States of the European Community had limited their own sovereignty in respect of it and when both the European Parliament itself and its basic electoral procedures were provided for under its own legal system, rather than the legal systems of its member States.", "37. The applicant referred to previous decisions of the European Commission of Human Rights in which complaints concerning the European Parliament were dealt with on the merits, so that the Commission in effect assumed that Article 3 of Protocol No. 1 applied to elections to the European Parliament (see, for example, Lindsay v. the United Kingdom, application no. 8364/78, decision of 8 March 1979, Decisions and Reports (DR) 15, p. 247, and Tête v. France, application no. 11123/84, decision of 9 December 1987, DR 54, p. 52). She agreed with the dissenting members of the Commission who did not accept that because the European Parliament did not exist when Protocol No. 1 was drafted, it necessarily fell outside the ambit of Article 3 of that Protocol.", "38. The majority of the Commission based its reasoning on this jurisdictional point. It considered that “to hold Article 3 of Protocol No. 1 to be applicable to supranational representative organs would be to extend the scope of Article 3 beyond what was intended by the drafters of the Convention and beyond the object and purpose of the provision. ...[T]he role of Article 3 is to ensure that elections take place at regular intervals to the national or local legislative assembly, that is, in the case of Gibraltar, to the House of Assembly” (see paragraph 63 of the Commission’s report).", "39. That the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court’s case-law (see, inter alia, the Loizidou v. Turkey judgment of 23 March 1995 ( preliminary objections ), Series A no. 310, pp. 26-27, § 71, with further reference). The mere fact that a body was not envisaged by the drafters of the Convention cannot prevent that body from falling within the scope of the Convention. To the extent that Contracting States organise common constitutional or parliamentary structures by international treaties, the Court must take these mutually agreed structural changes into account in interpreting the Convention and its Protocols.", "The question remains whether an organ such as the European Parliament nevertheless falls outside the ambit of Article 3 of Protocol No. 1.", "40. The Court recalls that the word “legislature” in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, § 53; see also the Commission’s decisions on the application of Article 3 of Protocol No. 1 to regional parliaments in Austria (application no. 7008/75, decision of 12 July 1976, DR 6, p. 120) and in Germany (application no. 27311/95, decision of 11 September 1995, DR 82-A, p. 158)).", "41. According to the case-law of the European Court of Justice, it is an inherent aspect of EC law that such law sits alongside, and indeed has precedence over, domestic law (see, for example, Costa v. ENEL, 6/64 [1964] ECR 585, and Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 106/77 [1978] ECR 629). In this regard, Gibraltar is in the same position as other parts of the European Union.", "42. The Court reiterates that Article 3 of Protocol No. 1 enshrines a characteristic of an effective political democracy (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 22, § 47, and the above-mentioned United Communist Party of Turkey and Others judgment, pp. 21-22, § 45). In the present case, there has been no submission that there exist alternative means of providing for electoral representation of the population of Gibraltar in the European Parliament, and the Court finds no indication of any.", "43. The Court thus considers that to accept the Government’s contention that the sphere of activities of the European Parliament falls outside the scope of Article 3 of Protocol No. 1 would risk undermining one of the fundamental tools by which “effective political democracy” can be maintained.", "44. It follows that no reason has been made out which could justify excluding the European Parliament from the ambit of the elections referred to in Article 3 of Protocol No. 1 on the ground that it is a supranational, rather than a purely domestic, representative organ.", "C. Whether the European Parliament, at the relevant time, had the characteristics of a “legislature” in Gibraltar", "45. The Government contended that the European Parliament continued to lack both of the most fundamental attributes of a legislature: the power to initiate legislation and the power to adopt it. They were of the opinion that the only change to the powers and functions of the European Parliament since the Commission last considered the issue in the above-mentioned Tête decision (see paragraph 37 above) – the procedure under Article 189b of the EC Treaty – offered less than even a power of co-decision with the Council, and in any event applied only to a tiny proportion of the Community’s legislative output.", "46. The applicant took as her starting-point in this respect that the European Commission of Human Rights had found that the entry into force of the Single European Act in 1986 did not furnish the European Parliament with the necessary powers and functions for it to be considered as a “legislature” (see the above-mentioned Tête decision). She contended that the Maastricht Treaty increased those powers to such an extent that the European Parliament was now transformed from a mere advisory and supervisory organ to a body which assumed, or assumed at least in part, the powers and functions of legislative bodies within the meaning of Article 3 of Protocol No. 1. The High Contracting Parties had undertaken to hold free elections at reasonable intervals by secret ballot, under conditions which would ensure the free expression of the opinion of the people in the choice of the legislature. She described the powers of the European Parliament not solely in terms of the new matters added by the Maastricht Treaty, but also by reference to its pre-existing powers, in particular those which were added by the Single European Act in 1986.", "47. The Commission did not examine this point, as it found Article 3 not to be applicable to supranational representative organs.", "48. In determining whether the European Parliament falls to be considered as the “legislature”, or part of it, in Gibraltar for the purposes of Article 3 of Protocol No. 1, the Court must bear in mind the sui generis nature of the European Community, which does not follow in every respect the pattern common in many States of a more or less strict division of powers between the executive and the legislature. Rather, the legislative process in the EC involves the participation of the European Parliament, the Council and the European Commission.", "49. The Court must ensure that “effective political democracy” is properly served in the territories to which the Convention applies, and in this context, it must have regard not solely to the strictly legislative powers which a body has, but also to that body’s role in the overall legislative process.", "50. Since the Maastricht Treaty, the European Parliament’s powers are no longer expressed to be “advisory and supervisory”. The removal of these words must be taken as an indication that the European Parliament has moved away from being a purely consultative body, and has moved towards being a body with a decisive role to play in the legislative process of the European Community. The amendment to Article 137 of the EC Treaty cannot, however, be taken as any more than an indication as to the intentions of the drafters of the Maastricht Treaty. Only on examination of the European Parliament’s actual powers in the context of the European Community legislative process as a whole can the Court determine whether the European Parliament acts as the “legislature”, or part of it, in Gibraltar.", "51. The European Parliament’s role in the Community legislative process depends on the issues concerned (see paragraphs 15-16 above).", "Where a regulation or directive is adopted by means of the consultation procedure (for example under Articles 99 or 100 of the EC Treaty) the European Parliament may, depending on the specific provision, have to be consulted. In such cases, the European Parliament’s role is limited. Where the EC Treaty requires the procedure set out in Article 189c to be used, the European Parliament’s position on a matter can be overruled by a unanimous Council. Where the EC Treaty requires the Article 189b procedure to be followed, however, it is not open to the Council to pass measures against the will of the European Parliament. Finally, where the so-called “assent procedure” is used (as referred to in the first paragraph of Article 138b of the EC Treaty), in relation to matters such as the accession of new member States and the conclusion of certain types of international agreements, the consent of the European Parliament is needed before a measure can be passed.", "In addition to this involvement in the passage of legislation, the European Parliament also has functions in relation to the appointment and removal of the European Commission. Thus, it has a power of censure over the European Commission, which can ultimately lead to the European Commission having to resign as a body (Article 144); its consent is necessary for the appointment of the European Commission (Article 158); its consent is necessary before the budget can be adopted (Article 203); and it gives a discharge to the European Commission in the implementation of the budget, and here has supervisory powers over the European Commission (Article 206).", "Further, whilst the European Parliament has no formal right to initiate legislation, it has the right to request the European Commission to submit proposals on matters on which it considers that a Community act is required (Article 138b).", "52. As to the context in which the European Parliament operates, the Court is of the view that the European Parliament represents the principal form of democratic, political accountability in the Community system. The Court considers that whatever its limitations, the European Parliament, which derives democratic legitimation from the direct elections by universal suffrage, must be seen as that part of the European Community structure which best reflects concerns as to “effective political democracy”.", "53. Even when due allowance is made for the fact that Gibraltar is excluded from certain areas of Community activity (see paragraph 12 above), there remain significant areas where Community activity has a direct impact in Gibraltar. Further, as the applicant points out, measures taken under Article 189b of the EC Treaty and which affect Gibraltar relate to important matters such as road safety, unfair contract terms and air pollution by emissions from motor vehicles and to all measures in relation to the completion of the internal market.", "54. The Court thus finds that the European Parliament is sufficiently involved in the specific legislative processes leading to the passage of legislation under Articles 189b and 189c of the EC Treaty, and is sufficiently involved in the general democratic supervision of the activities of the European Community, to constitute part of the “legislature” of Gibraltar for the purposes of Article 3 of Protocol No. 1.", "D. The application of Article 56 of the Convention to the case", "55. Article 56 §§ 1 and 3 of the Convention provide as follows:", "“1. Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the … Convention shall, subject to paragraph 4 of this Article, extend to all or any of the territories for whose international relations it is responsible.", "...", "3. The provisions of [the] Convention shall be applied in such territories with due regard, however, to local requirements.”", "56. The Government noted, without relying formally on the point, that two members of the Commission had emphasised the constitutional position of Gibraltar as a dependent territory in the context of Article 56 (formerly Article 63) of the Convention.", "57. The applicant was of the view that the “local requirements” referred to in Article 56 § 3 of the Convention could not be interpreted so as to restrict the application of Article 3 of Protocol No. 1 in the case.", "58. The Commission, which found Article 3 not to be applicable on other grounds, did not consider this point. Two members of the Commission, in separate concurring opinions, both found that Article 56 of the Convention had a role to play in the case.", "59. The Court recalls that in the Tyrer v. the United Kingdom judgment (25 April 1978, Series A no. 26, pp. 18-19, § 38) it found that before the former Article 63 § 3 could apply, there would have to be “positive and conclusive proof of a requirement”. Local requirements, if they refer to the specific legal status of a territory, must be of a compelling nature if they are to justify the application of Article 56 of the Convention. In the present case, the Government do not contend that the status of Gibraltar is such as to give rise to “local requirements” which could limit the application of the Convention, and the Court finds no indication that there are any such requirements.", "E. Whether the absence of elections to the European Parliament in Gibraltar in 1994 was compatible with Article 3 of Protocol No. 1", "60. The Government submitted that, even if Article 3 of Protocol No. 1 could be said to apply to the European Parliament, the absence of elections in Gibraltar in 1994 did not give rise to a violation of that provision but instead fell within the State’s margin of appreciation. They pointed out that in the 1994 elections the United Kingdom had used a single-member constituency, “first-past-the-post” system. It would have distorted the electoral process to constitute Gibraltar as a separate constituency, since its population of approximately 30,000 was less than 5% of the average population per European Parliament seat in the United Kingdom. The alternative of redrawing constituency boundaries so as to include Gibraltar within a new or existing constituency was no more feasible, as Gibraltar did not form part of the United Kingdom and had no strong historical or other link with any particular United Kingdom constituency.", "61. The applicant submitted that she had been completely deprived of the right to vote in the 1994 elections. She stated that the protection of fundamental rights could not depend on whether or not there were attractive alternatives to the current system.", "62. The Commission, since it did not find Article 3 of Protocol No. 1 to be applicable, did not examine whether or not the absence of elections in Gibraltar was compatible with that provision.", "63. The Court recalls that the rights set out in Article 3 of Protocol No. 1 are not absolute, but may be subject to limitations. The Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that the conditions do not curtail the right to vote to such an extent as to impair its very essence and deprive it of effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart “the free expression of the people in the choice of the legislature” (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 23, § 52).", "64. The Court makes it clear at the outset that the choice of electoral system by which the free expression of the opinion of the people in the choice of the legislature is ensured – whether it be based on proportional representation, the “first-past-the-post” system or some other arrangement – is a matter in which the State enjoys a wide margin of appreciation. However, in the present case the applicant, as a resident of Gibraltar, was completely denied any opportunity to express her opinion in the choice of the members of the European Parliament. The position is not analogous to that of persons who are unable to take part in elections because they live outside the jurisdiction, as such individuals have weakened the link between themselves and the jurisdiction. In the present case, as the Court has found (see paragraph 34 above), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it.", "65. In the circumstances of the present case, the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied.", "It follows that there has been a violation of that provision.", "ii. alleged violation of article 14 of the convention taken in conjunction with article 3 of protocol no. 1", "66. The applicant in addition alleged that, as a resident of Gibraltar, she had been the victim of discrimination contrary to Article 14 of the Convention, which provides:", "“ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status .”", "67. The Government did not address separately this complaint.", "68. In view of its above conclusion that there has been a violation of Article 3 of Protocol No. 1 taken alone, the Court does not consider it necessary to consider the complaint under Article 14 of the Convention.", "III. application of article 41 of the Convention", "69. Under Article 41 of the Convention,", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Costs and expenses", "70. The applicant did not claim any damages under Article 41, but she did claim costs and expenses before the Court totalling 760,000 French francs (FRF) and 10,955 pounds sterling (GBP), made up as to FRF 760,000 of her representative’s fees and expenses (750 hours at FRF 1,000 per hour) and FRF 10,000 disbursements, and as to GBP 10,955 of fees and expenses incurred in instructing solicitors in Gibraltar. She also claimed FRF 6,976 and GBP 1,151.50 in respect of travel expenses.", "The Government considered that the total number of hours claimed by the applicant’s main representative should be reduced by about half, and that the Gibraltar advisers’ claims should not have amounted to more than one-third of the sums actually claimed. They also challenged some of the travel expenses.", "71. In the light of the criteria established in its case-law, the Court holds on an equitable basis that the applicant should be awarded the sum of GBP 45,000 from which should be deducted FRF 18,510 already paid by way of legal aid for fees and travel and subsistence expenses before the Court.", "B. Default interest", "72. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "13. The applicant was born in 1954 and lives in Garkalne (Riga district). At the time of the events which are the subject of the present application he was an investment consultant.", "A. The proceedings in the Limassol District Court", "14. On 4 May 1999 the applicant and F.H. Ltd., a commercial company incorporated under Cypriot law, signed an acknowledgment of debt deed before a notary. Under the terms of the deed the applicant declared that he had borrowed 100,000 United States dollars (USD) from F.H. Ltd. and undertook to repay that sum with interest by 30 June 1999. The deed also contained choice of law and jurisdiction clauses according to which it was governed “in all respects” by Cypriot law and the Cypriot courts had non ‑ exclusive jurisdiction to hear any disputes arising out of it. The applicant ’ s address was given as G. Street in Riga and was set out as follows:", "“[FOR] GOOD AND VALUABLE CONSIDERATION, I, PĒTERIS AVOTIŅŠ, of [no.], G. [street], 3 rd floor, Riga, Latvia, [postcode] LV-..., ( ‘ the Borrower ’ ) ...”", "15. In 2003 F.H. Ltd. brought proceedings against the applicant in the Limassol District Court ( Επαρχιακό Δικαστήριο Λεμεσού, Cyprus), alleging that he had not repaid the above-mentioned debt and requesting that he be ordered to pay the principal debt together with interest. In the Strasbourg proceedings the applicant submitted that he had in fact already repaid the debt before the proceedings were instituted in the Cypriot court, not by paying the sum of money in question to F.H. Ltd., but by other means linked to the capital of F.H. Ltd. ’ s parent company. However, he acknowledged that there was no documentary evidence of this. The Government contested the applicant ’ s submission.", "16. In an order dated 27 June 2003, the District Court authorised the “ sealing and filing of the writ of summons”. On 24 July 2003 a “specially endorsed writ” was drawn up, describing the facts of the case in detail. It gave the applicant ’ s address as G. Street in Riga, the address indicated on the acknowledgment of debt deed.", "17. Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex parte application to the same District Court on 11 September 2003 seeking a fresh order enabling a summons to be served on the applicant outside the country and requiring him to appear within thirty days from the date of issuing of the summons. The claimant company ’ s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in G. Street in Riga and could actually receive judicial documents at that address. The applicant, for his part, contended that it would have been physically impossible for him to receive the summons at the address in question, which was simply the address at which he had signed the loan contract and the acknowledgment of debt deed in 1999 and was not his home or business premises.", "18. On 7 October 2003 the Limassol District Court ordered that notice of the proceedings be served on the applicant at the address provided by the claimant company. The applicant was summoned to appear or to come forward within thirty days of receiving the summons. If he did not do so, the court would make no further attempt to contact him and would instead post all future announcements concerning the case on the court noticeboard.", "19. An affidavit produced by an employee of the firm of lawyers representing F.H. Ltd. showed that, in accordance with the court order, the summons had been sent by recorded delivery to the address in G. Street in Riga on 16 November 2003. However, the copy of the summons furnished by the Government indicated that it had been drawn up on 17 November 2003. The slip produced by the Cypriot postal service stated that the summons had been sent on 18 November 2003 to the address in G. Street, and had been delivered and signed for on 27 November 2003. However, the signature on the slip does not appear to correspond to the applicant ’ s name. The applicant claimed never to have received the summons.", "20. As the applicant did not appear, the Limassol District Court ruled in his absence on 24 May 2004. It ordered him to pay the claimant USD 100,000 or the equivalent in Cypriot pounds (CYP), plus interest at an annual rate of 10% of the aforementioned amount from 30 June 1999 until payment of the debt. The applicant was also ordered to pay costs and expenses in a gross amount of CYP 699.50, plus interest at an annual rate of 8%. According to the judgment, the final version of which was drawn up on 3 June 2004, the applicant had been duly informed of the hearing but had not attended. The judgment did not state whether the decision was final or indicate possible judicial remedies.", "B. The recognition and enforcement proceedings in the Latvian courts", "21. On 22 February 2005 F.H. Ltd. applied to the Riga City Latgale District Court ( Rīgas pilsētas Latgales priekšpilsētas tiesa, Latvia) seeking recognition and enforcement of the judgment of 24 May 2004. In its request the company also sought to have a temporary precautionary measure applied. It stated that the applicant was the owner of real property in Garkalne (Riga district) which according to the land register was already mortgaged to a bank. Accordingly, fearing that the applicant might seek to evade enforcement of the judgment, it asked the District Court to place a charge on the property in question and record the charge in the land register. Lastly, it requested that the applicant be ordered to pay the costs. In its request the company gave as the applicant ’ s place of residence an address in Č. Street in Riga which differed from the address previously notified to the Cypriot court.", "22. On 28 April 2005 the Latgale District Court adjourned examination of F.H. Ltd. ’ s request, informing the company that the request contained a number of defects which it had one month to correct. In particular, F.H. Ltd. had not explained why it had given an address in Č. Street when the applicant was supposedly resident in G. Street.", "23. On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it explained, among other points, that, according to the information contained in the register of residents ( Iedzīvotāju reģistrs ), the address in Č. Street was the applicant ’ s officially declared home address. As to the address in G. Street, the company ’ s representatives had assumed it to be the applicant ’ s actual residence. In that connection the Government provided the Court with a copy of a letter from the authority responsible for the register of residents according to which, prior to 19 June 2006, the applicant ’ s officially declared address had been in Č. Street.", "24. In an order of 31 May 2005, the Latgale District Court ruled that the corrigendum submitted by F.H. Ltd. was insufficient to remedy all the defects in its request. The court therefore declined to examine the request and sent it back to the company. The latter lodged an appeal with the Riga Regional Court ( Rīgas apgabaltiesa ), which on 23 January 2006 set aside the order of 31 May 2005 and remitted the case to the District Court in order for the latter to examine the request for recognition and enforcement as rectified by the corrigendum of 26 May 2005.", "25. In an order of 27 February 2006 issued without the parties being present, the Latgale District Court granted F.H. Ltd. ’ s request in full. It ordered the recognition and enforcement of the Limassol District Court ’ s judgment of 24 May 2004 and the entry in the Garkalne municipal land register of a charge on the property owned by the applicant in that municipality. The applicant was also ordered to pay the costs.", "26. According to the applicant, it was not until 15 June 2006 that he learned, from the bailiff responsible for enforcement of the Cypriot judgment, of the existence of that judgment and of the Latgale District Court order for its enforcement. On the following day (16 June 2006) he went to the District Court, where he acquainted himself with the judgment and the order. The Government did not dispute these facts.", "27. The applicant did not attempt to appeal against the Cypriot judgment in the Cypriot courts. However, he lodged an interlocutory appeal ( blakus sūdzība ) against the order of 27 February 2006 with the Riga Regional Court, while asking the Latgale District Court to extend the time allowed for lodging the appeal. Arguing that there was nothing in the case file to confirm that he had been given notice of the hearing of 27 February 2006 or of the order issued following the hearing, he submitted that the thirty-day period laid down by the Civil Procedure Law should start running on 16 June 2006, the date on which he had taken cognisance of the order in question.", "28. In an order of 13 July 2006, the Latgale District Court granted the applicant ’ s request and extended the time-limit for lodging an appeal. It noted, inter alia, as follows.", "“... It is clear from the order of 27 February 2006 that the issue of recognition and enforcement of the foreign judgment was determined in the absence of the parties, on the basis of the documents furnished by the claimant, [F.H. Ltd.]. The order further states that the defendant may appeal against it within thirty days from the date of receipt of the copy [of that order], in accordance with section 641(2) of the Civil Procedure Law.", "The court considers the arguments advanced by the applicant, P. Avotiņš, to be well founded, to the effect that he did not receive the order ... of 27 February 2006 until 16 June 2006, this being attested to by the reference in the list of consultations [appended to the case file] and by the fact that the order, served [on the applicant] by the court, was returned on 10 April 2006 ... It is apparent from the documents appended to the appeal that the applicant has not lived at the declared address in [Č.] Street since 1 May 2004; this confirms ... the statement made by his representative at the hearing, according to which the applicant no longer lives at the above-mentioned address.", "Accordingly, the thirty-day period should ... run from the date on which the applicant received the order in question ...", "Further, the court does not share the view of the representative of [F.H. Ltd.] that the applicant himself is responsible for his failure to receive the correspondence because he did not declare his change of address promptly, and that the time allowed [for lodging an appeal] should not therefore be extended. The fact that the applicant did not take the necessary legal steps concerning registration of residence is not sufficient to justify a refusal by the court to allow him to exercise the fundamental rights guaranteed by the State as regards access to the courts and judicial protection, including the right to appeal against a decision, with the consequences this is likely to entail. ...”", "29. In his grounds of appeal before the Riga Regional Court the applicant contended that the recognition and enforcement of the Cypriot judgment in Latvia breached Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation) and several provisions of the Latvian Civil Procedure Law. He submitted two arguments in that regard.", "30. Firstly, the applicant argued that in accordance with Article 34 § 2 of the Brussels I Regulation (corresponding in substance to the third sub- paragraph of section 637(2) of the Latvian Civil Procedure Law), a judgment given in default in another member State could not be recognised if the defendant had not been served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. He maintained that he had not been duly informed of the proceedings in Cyprus, although both the Cypriot lawyers who had represented the claimant company in the Limassol District Court and the Latvian lawyers who had represented it in the Latvian courts had been perfectly aware of his business address in Riga. In support of that allegation he submitted that he had had professional dealings with the Cypriot lawyers, who had telephoned him and sent faxes to his office, and had met the Latvian lawyers in person. Hence, they must all have been aware of his business address. He added that he could also have been reached at his home address in Garkalne, as he had a residence there that was officially declared in accordance with the law and the lawyers could have consulted the municipal land register, where the property he owned was registered under his name. However, instead of serving notice of the proceedings on him at one of those addresses, which had been known and accessible, the lawyers had given the courts an address which they should have realised could not be used.", "31. Secondly, the applicant argued that, under the terms of Article 38 § 1 of the Brussels I Regulation and the second sub ‑ paragraph of section 637(2) of the Civil Procedure Law, a judgment had to be enforceable in the State of origin in order to be enforceable in the member State addressed. In the instant case, there had been a threefold breach of those requirements. Firstly, the claimant had only submitted the text of the Cypriot court judgment to the Latvian court and not the certificate required by Annex V to the Brussels I Regulation. In that connection the applicant acknowledged that under Article 55 § 1 of the Brussels I Regulation the court in which enforcement was sought could, in some circumstances, exempt the claimant from the obligation to produce a certificate. However, in the present case the Latgale District Court had not made clear whether it considered that the claimant could be exempted from that obligation and, if so, for what reason. Secondly, the Cypriot judgment had contained no reference to the fact that it was enforceable or to possible judicial remedies. Thirdly, although a judgment had to be enforceable in the country of origin in order to be enforced in accordance with the Brussels I Regulation, the claimant company had not produced any documentary evidence demonstrating that the judgment of 24 May 2004 was enforceable in Cyprus. In view of all these circumstances, the applicant contended that the judgment could on no account be recognised and enforced in Latvia.", "32. In a judgment of 2 October 2006, the Regional Court allowed the applicant ’ s appeal on the merits, quashed the impugned order and rejected the request for recognition and enforcement of the Cypriot judgment.", "33. F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which examined it on 31 January 2007. At the start of the hearing, F.H. Ltd. submitted copies of several documents to the Senate, including the certificate referred to in Article 54 of the Brussels I Regulation and Annex V thereto. The certificate was dated 18 January 2007 and had been signed by an acting judge of the Limassol District Court. It stated that the document instituting the proceedings had been served on the applicant on 27 November 2003. The last part of the certificate, intended for the name of the person against whom the judgment was enforceable, had been left blank. When asked to comment on these documents, the applicant ’ s lawyer contended that they were clearly insufficient to render the judgment enforceable.", "34. In a final judgment of 31 January 2007, the Supreme Court quashed and annulled the Regional Court judgment of 2 October 2006. It granted F.H. Ltd. ’ s request and ordered the recognition and enforcement of the Cypriot judgment and the entry in the land register of a charge on the applicant ’ s property in Garkalne. The relevant extracts from the judgment read as follows.", "“ ... It is clear from the evidence in the case file that the Limassol District Court judgment became final. This is confirmed by the explanations provided by both parties at the Regional Court hearing on 2 October 2006, according to which no appeal had been lodged against the judgment, and by the certificate issued on 18 January 2007 ... As [the applicant] did not appeal against the judgment, his lawyer ’ s submissions to the effect that he was not duly notified of the examination of the case by a foreign court lack relevance [ nav būtiskas nozīmes ].", "Having regard to the foregoing, the Senate finds that the judgment of the Limassol District Court (Cyprus) of 24 May 2004 must be recognised and enforced in Latvia.", "Article 36 of the [Brussels I] Regulation provides that a foreign judgment may under no circumstances be reviewed as to its substance; in accordance with section 644(1) of the Civil Procedure Law, once such judgments have been recognised they are to be enforced in accordance with the conditions laid down by that Law. ...”", "35. On 14 February 2007 the Latgale District Court, basing its decision on the Supreme Court ’s judgment, issued a payment order ( izpildu raksts ). The applicant complied immediately with the terms of the order and paid the bailiff employed by the claimant company a total of 90,244.62 Latvian lati ( ( LVL ), approximately 129,000 euros), comprising LVL 84,366.04 for the principal debt and LVL 5,878.58 in enforcement costs. He then requested that the charge on his property in Garkalne be lifted. In two orders dated 24 January 2008, the judge with responsibility for land registers ( Zemesgrāmatu nodaļas tiesnesis ) refused the request. The applicant lodged an appeal on points of law with the Senate of the Supreme Court, which, in an order of 14 May 2008, lifted the charge on his property." ]

[ "II. RELEVANT EUROPEAN UNION AND INTERNATIONAL LAW MATERIALS", "A. General European Union law", "1. Fundamental rights in European Union law", "36. At the material time the relevant parts of Article 6 of the Treaty on European Union (TEU) read as follows.", "“1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.", "2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.", "...”", "37. Following the entry into force of the Treaty of Lisbon on 1 December 2009, Article 6 of the TEU reads as follows.", "“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.", "The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.", "The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.", "2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union ’ s competences as defined in the Treaties.", "3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union ’ s law.”", "38. Furthermore, since 1 December 2009 the relevant provisions of the Treaty on the Functioning of the European Union (TFEU) provide as follows.", "Article 67", "“1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.", "...", "4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.”", "Article 81 § 1", "“The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.”", "Article 82 § 1", "“Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.", "... ”", "39. Lastly, the second paragraph of Article 249 of the Treaty establishing the European Community (applicable at the material time and identical to Article 288, second paragraph, of the TFEU) provided:", "“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”", "40. The relevant provisions of the Charter of Fundamental Rights of the European Union (which had not yet acquired binding force at the material time) provide as follows.", "Article 47 Right to an effective remedy and to a fair trial", "“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.", "Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.", "...”", "Article 51 Field of application", "“1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. ...", "...”", "Article 52 Scope and interpretation of rights and principles", "“1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.", "...", "3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.", "4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.", "...”", "Article 53 Level of protection", "“Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States ’ constitutions.”", "41. In Krombach v. Bamberski (28 March 2000, C-7/98, ECR I-1935, EU:C:2000:164 ), the Court of Justice of the European Union (known as the Court of Justice of the European Communities prior to the entry into force of the Treaty of Lisbon on 1 December 2009 – CJEU), held as follows.", "“25. The Court has consistently held that fundamental rights form an integral part of the general principles of law whose observance the Court ensures (see, in particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33). For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘ the ECHR ’ ) has particular significance (see, inter alia, Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18).", "26. The Court has thus expressly recognised the general principle of Community law that everyone is entitled to fair legal process, which is inspired by those fundamental rights (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I ‑ 8417, paragraphs 20 and 21, and judgment of 11 January 2000 in Joined Cases C ‑ 174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I- 1, paragraph 17).", "27. Article F( 2) of the Treaty on European Union (now, after amendment, Article 6(2) EU) embodies that case-law. It provides: ‘ The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law ’ .”", "42. In its judgment in ASML Netherlands BV v. Semiconductor Industry Services GmbH (SEMIS) (14 December 2006, C-283/05, ECR I-12041, EU :C:2006:787 ), the CJEU reiterated the following.", "“26. According to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures ... For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the European Convention for the Protection of Human Rights and Fundamental Freedoms ( ‘ ECHR ’ ) has special significance ...", "27. It follows from the ECHR, as interpreted by the European Court of Human Rights, that the rights of the defence, which derive from the right to a fair legal process enshrined in Article 6 of that convention, require specific protection intended to guarantee effective exercise of the defendant ’ s rights (see Eur. Court H.R., Artico v Italy judgment of 13 May 1980, Series A No 37, § 33, and Eur. Court H.R., T v Italy judgment of 12 October 1992, Series A No 245 C, § 28).”", "43. In its judgment in DEB Deutsche Energiehandels - und Beratungsgesellschaft mbH v. Bundesrepublik Deutschland (22 December 2010, C-279/09, ECR I-13849, EU:C:2010:811 ), delivered after the entry into force of the Treaty of Lisbon and hence after the Charter of Fundamental Rights had acquired the same legal value as the Treaties, the CJEU held as follows.", "“29. The question referred thus concerns the right of a legal person to effective access to justice and, accordingly, in the context of EU law, it concerns the principle of effective judicial protection. That principle is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 ( ‘ the ECHR ’ ) ...", "30. As regards fundamental rights, it is important, since the entry into force of the Lisbon Treaty, to take account of the Charter, which has ‘ the same legal value as the Treaties ’ pursuant to the first subparagraph of Article 6(1) TEU. Article 51(1) of the Charter states that the provisions thereof are addressed to the Member States when they are implementing EU law.", "31. In that connection, the first paragraph of Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Under the second paragraph of Article 47, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone is to have the possibility of being advised, defended and represented. The third paragraph of Article 47 of the Charter provides specifically that legal aid is to be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.", "32. According to the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the ECHR.”", "44. In Gascogne Sack Deutschland GmbH v. Commission (26 November 2013, C ‑ 40/12 P, EU :C:2013:768 ), the CJEU stressed the continuity of the legal system before and after the entry into force of the Treaty of Lisbon, finding as follows.", "“28. As to the question of whether the entry into force of the Lisbon Treaty ought to have been regarded, as the appellant submits, as a matter which came to light in the course of the proceedings and, on that basis, gave good grounds, in accordance with the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court, for introducing new pleas in law, the Court of Justice has held that the entry into force of that treaty, incorporating the Charter into European Union primary law, cannot be considered a new matter of law within the meaning of the first subparagraph of Article 42(2) of its Rules of Procedure. In that context, the Court has noted that, even before that treaty entered into force, it had found on several occasions that the right to a fair trial, which derives inter alia from Article 6 ECHR, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU (see, in particular, Case C-289/11 P Legris Industries v Commission, paragraph 36).”", "45. Lastly, with regard to the scope of the rights guaranteed by the Charter of Fundamental Rights, the CJEU held the following in J. McB. v. L.E. (5 October 2010, C ‑ 400/10 PPU -MCB, p. I-08965 ).", "“53. Moreover, it follows from Article 52(3) of the Charter that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, their meaning and scope are to be the same as those laid down by the ECHR. However, that provision does not preclude the grant of wider protection by European Union law. Under Article 7 of the Charter, ‘ [e] veryone has the right to respect for his or her private and family life, home and communications ’. The wording of Article 8(1) of the ECHR is identical to that of the said Article 7, except that it uses the expression ‘ correspondence ’ instead of ‘ communications ’. That being so, it is clear that the said Article 7 contains rights corresponding to those guaranteed by Article 8(1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights (see, by analogy, Case C ‑ 450/06 Varec [2008] ECR I ‑ 581, paragraph 48).”", "2. Fundamental rights and the principle of mutual trust", "46. In its judgment in N.S. v. Secretary of State for the Home Department and M.E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (21 December 2011, C ‑ 411/10 and C-493/10, ECR I-13905, EU:C:2011:865 ), given in the context of the application of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (the Dublin II Regulation), the CJEU held as follows.", "“77. According to settled case-law, the Member States must not only interpret their national law in a manner consistent with European Union law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the European Union legal order or with the other general principles of European Union law (see, to that effect, Case C ‑ 101/01 Lindqvist [2003] ECR I ‑ 12971, paragraph 87, and Case C ‑ 305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I ‑ 5305, paragraph 28).", "78. Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard.", "...", "80. In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR.", "81. It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights.", "...", "83. At issue here is the raison d ’ être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights.", "...", "94. It follows from the foregoing that in situations such as that at issue in the cases in the main proceedings, to ensure compliance by the European Union and its Member States with their obligations concerning the protection of the fundamental rights of asylum seekers, the Member States, including the national courts, may not transfer an asylum seeker to the ‘ Member State responsible ’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.", "...", "98. The Member State in which the asylum seeker is present must, however, ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, that Member State must itself examine the application in accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003.", "99. It follows from all of the foregoing considerations that, as stated by the Advocate General in paragraph 131 of her Opinion, an application of Regulation No 343/2003 on the basis of the conclusive presumption that the asylum seeker ’ s fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the duty of the Member States to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights.", "100. In addition, as stated by N.S., were Regulation No 343/2003 to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States.", "101. That would be the case, inter alia, with regard to a provision which laid down that certain States are ‘ safe countries ’ with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary.", "...", "104. In those circumstances, the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable.", "105. In the light of those factors, the answer to the questions referred is that European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.”", "47. In the case of Stefano Melloni v. Ministerio Fiscal (26 February 2013, C-399/11, EU :C:2013:107 ), concerning in particular the issue whether a European Union member State could refuse to execute a European arrest warrant on the basis of Article 53 of the Charter of Fundamental Rights on grounds of infringement of the fundamental rights of the person concerned guaranteed by the national Constitution, the CJEU found as follows.", "“60. It is true that Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.", "61. However, [the] Framework Decision [governing the European arrest warrant] does not allow Member States to refuse to execute a European arrest warrant when the person concerned is in one of the situations provided for therein.", "62. It should also be borne in mind that the adoption of Framework Decision 2009/299, which inserted that provision into Framework Decision 2002/584, is intended to remedy the difficulties associated with the mutual recognition of decisions rendered in the absence of the person concerned at his trial arising from the differences as among the Member States in the protection of fundamental rights. That framework decision effects a harmonisation of the conditions of execution of a European arrest warrant in the event of a conviction rendered in absentia, which reflects the consensus reached by all the Member States regarding the scope to be given under EU law to the procedural rights enjoyed by persons convicted in absentia who are the subject of a European arrest warrant.", "63. Consequently, allowing a Member State to avail itself of Article 53 of the Charter to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, a possibility not provided for under Framework Decision 2009/299, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by the constitution of the executing Member State, by casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision, would undermine the principles of mutual trust and recognition which that decision purports to uphold and would, therefore, compromise the efficacy of that framework decision.", "64. In the light of the foregoing considerations, the answer to the third question is that Article 53 of the Charter must be interpreted as not allowing a Member State to make the surrender of a person convicted in absentia conditional upon the conviction being open to review in the issuing Member State, in order to avoid an adverse effect on the right to a fair trial and the rights of the defence guaranteed by its constitution.”", "48. In the case of Alpha Bank Cyprus Ltd v. Dau Si Senh and Others (16 September 2015, C-519/13, EU :C:2015:603 ), concerning the application of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, the CJEU held as follows.", "“30. Therefore, with the aim of improving the efficiency and speed of judicial procedures and ensuring proper administration of justice, that regulation establishes the principle of direct transmission of judicial and extrajudicial documents between the Member States (see judgment in Leffler, C ‑ 443/03, EU:C:2005:665, paragraph 3), which has the effect of simplifying and accelerating the procedures. Those objectives are noted in recitals 6 to 8 in the preamble to that regulation.", "31. However, as the Court has already held on numerous occasions, those objectives cannot be attained by undermining in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see, inter alia, judgment in Alder, C ‑ 325/11, EU:C:2012:824, paragraph 35 and the case-law cited).”", "3. Opinion 2/13", "49. In Opinion 2/13 of 18 December 2014 on the draft agreement providing for the accession of the European Union to the European Convention on Human Rights, the CJEU found that the draft agreement was not compatible with the TEU. The relevant parts of the Opinion provide as follows.", "“187. In that regard, it must be borne in mind, in the first place, that Article 53 of the Charter provides that nothing therein is to be interpreted as restricting or adversely affecting fundamental rights as recognised, in their respective fields of application, by EU law and international law and by international agreements to which the EU or all the Member States are party, including the ECHR, and by the Member States ’ constitutions.", "188. The Court of Justice has interpreted that provision as meaning that the application of national standards of protection of fundamental rights must not compromise the level of protection provided for by the Charter or the primacy, unity and effectiveness of EU law (judgment in Melloni, EU:C:2013:107, paragraph 60).", "189. In so far as Article 53 of the ECHR essentially reserves the power of the Contracting Parties to lay down higher standards of protection of fundamental rights than those guaranteed by the ECHR, that provision should be coordinated with Article 53 of the Charter, as interpreted by the Court of Justice, so that the power granted to Member States by Article 53 of the ECHR is limited – with respect to the rights recognised by the Charter that correspond to those guaranteed by the ECHR – to that which is necessary to ensure that the level of protection provided for by the Charter and the primacy, unity and effectiveness of EU law are not compromised.", "...", "191. In the second place, it should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (see, to that effect, judgments in N. S. and Others, C ‑ 411/10 and C ‑ 493/10, EU:C:2011:865, paragraphs 78 to 80, and Melloni, EU:C:2013:107, paragraphs 37 and 63).", "192. Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU.", "193. The approach adopted in the agreement envisaged, which is to treat the EU as a State and to give it a role identical in every respect to that of any other Contracting Party, specifically disregards the intrinsic nature of the EU and, in particular, fails to take into consideration the fact that the Member States have, by reason of their membership of the EU, accepted that relations between them as regards the matters covered by the transfer of powers from the Member States to the EU are governed by EU law to the exclusion, if EU law so requires, of any other law.", "194. In so far as the ECHR would, in requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.”", "4. Provisions concerning preliminary rulings", "50. Article 234 of the Treaty establishing the European Community (applicable at the relevant time and replaced by Article 267 of the TFEU) read as follows.", "“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:", "...", "(b) the validity and interpretation of acts of the institutions of the Community and of the ECB;", "...", "Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.", "Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”", "51. In the case of Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health (6 October 1982, C- 283/81, ECR 3415, EU :C:1982:335 ), the CJEU spelled out the extent of the obligation imposed by former Article 177 § 3 of the Treaty establishing the European Economic Community (equivalent to the third paragraph of Article 234 of the Treaty establishing the European Community). It held as follows.", "“The third paragraph of Article 177 ... is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”", "52. The scope of that case-law was further defined in the case of João Felipe Ferreira da Silva e Brito and Others v. Estado português (9 September 2015, C-160/14), in which the CJEU held as follows.", "“36. By its second question, the referring court seeks to ascertain whether, in circumstances such as those at issue in the main proceedings and, in particular, because of the fact that lower courts have given conflicting decisions concerning the interpretation of the concept of a ‘ transfer of a business ’ within the meaning of Article 1(1) of Directive 2001/23, the third paragraph of Article 267 TFEU must be construed as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is in principle obliged to refer the matter to the Court of Justice in order to obtain an interpretation of that concept.", "37. In that regard, although it is true that the procedure laid down in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them, the fact remains that when there is no judicial remedy under national law against the decision of a court or tribunal of a Member State, that court or tribunal is, in principle, obliged to bring the matter before the Court of Justice under the third paragraph of Article 267 TFEU where a question relating to the interpretation of EU law is raised before it (see judgment in Consiglio nazionale dei geologi and Autorità garante della concorrenza e del mercato, C ‑ 136/12, EU:C:2013:489, paragraph 25 and the case-law cited).", "38. As regards the extent of that obligation, it follows from settled case-law, beginning with the judgment in Cilfit and Others (283/81, EU:C:1982:335), that a court or tribunal against whose decisions there is no judicial remedy under national law is obliged, where a question of EU law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the provision of EU law concerned has already been interpreted by the Court or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.", "39. The Court has also made clear that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union (judgment in Intermodal Transports, C ‑ 495/03, EU :C:2005:552, paragraph 33).", "40. It is true that the national court or tribunal has sole responsibility for determining whether the correct application of EU law is so obvious as to leave no scope for any reasonable doubt and for deciding, as a result, to refrain from referring to the Court a question concerning the interpretation of EU law which has been raised before it (see judgment in Intermodal Transports, C ‑ 495/03, EU :C:2005:552, paragraph 37 and the case-law cited).", "41. In itself, the fact that other national courts or tribunals have given contradictory decisions is not a conclusive factor capable of triggering the obligation set out in the third paragraph of Article 267 TFEU.", "42. A court or tribunal adjudicating at last instance may take the view that, although the lower courts have interpreted a provision of EU law in a particular way, the interpretation that it proposes to give of that provision, which is different from the interpretation espoused by the lower courts, is so obvious that there is no reasonable doubt.", "43. However, so far as the area under consideration in the present case is concerned and as is clear from paragraphs 24 to 27 of this judgment, the question as to how the concept of a ‘ transfer of a business ’ should be interpreted has given rise to a great deal of uncertainty on the part of many national courts and tribunals which, as a consequence, have found it necessary to make a reference to the Court of Justice. That uncertainty shows not only that there are difficulties of interpretation, but also that there is a risk of divergences in judicial decisions within the European Union.", "44. It follows that, in circumstances such as those of the case before the referring court, which are characterised both by conflicting lines of case-law at national level regarding the concept of a ‘ transfer of a business ’ within the meaning of Directive 2001/23 and by the fact that that concept frequently gives rise to difficulties of interpretation in the various Member States, a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to make a reference to the Court, in order to avert the risk of an incorrect interpretation of EU law.", "45. Accordingly, the answer to the second question is that, in circumstances such as those of the case in the main proceedings, which are characterised both by the fact that there are conflicting decisions of lower courts or tribunals regarding the interpretation of the concept of a ‘ transfer of a business ’ within the meaning of Article 1(1) of Directive 2001/23 and by the fact that that concept frequently gives rise to difficulties of interpretation in the various Member States, the third paragraph of Article 267 TFEU must be construed as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is obliged to make a reference to the Court for a preliminary ruling concerning the interpretation of that concept.”", "B. Provisions concerning the recognition and enforcement of foreign judgments in civil and commercial matters", "1. Regulation No 44/2001: version applied in the instant case", "(a) Text of the Regulation", "53. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation) came into force on 1 March 2002. It replaced the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 27 September 1968 and was binding on all the European Union member States with the exception of Denmark. The provisions cited below, which were applicable in the present case, remained in force until 10 January 2015, the date of entry into force of the new recast version.", "54. Recitals 16 to 18 of the Preamble to the Brussels I Regulation read as follows.", "“(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute.", "(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation.", "(18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected .”", "55. The relevant Articles of the Regulation read as follows.", "Article 26", "“1. Where a defendant domiciled in one Member State is sued in a court of another Member State and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Regulation.", "2. The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.", "...”", "Article 33", "“1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.", "2. Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised.", "...”", "Article 34", "“A judgment shall not be recognised:", "1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;", "2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;", "...”", "Article 35", "“1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72.", "2. In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the Member State of origin based its jurisdiction.", "3. Subject to the paragraph 1, the jurisdiction of the court of the Member State of origin may not be reviewed. ...”", "Article 36", "“Under no circumstances may a foreign judgment be reviewed as to its substance.”", "Article 37 § 1", "“A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged.”", "Article 38 § 1", "“A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.”", "Article 41", "“The judgment shall be declared enforceable ... without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.”", "Article 43", "“1. The decision on the application for a declaration of enforceability may be appealed against by either party.", "...", "3. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.", "... ”", "Article 45", "“1. The court with which an appeal is lodged under Article 43 ... shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.", "2. Under no circumstances may the foreign judgment be reviewed as to its substance.”", "Article 46 § 1", "“The court with which an appeal is lodged under Article 43 ... may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the Member State of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged.”", "Article 54", "“The court or competent authority of a Member State where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Regulation.”", "(b) Explanatory memorandum concerning the proposal for a Regulation", "56. In so far as relevant to the present case, the explanatory memorandum concerning the Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters presented by the Commission (COM/99/0348 final, published in the Official Journal of the European Communities C 376 E of 28 December 1999, pp. 1-17) stated as follows.", "“2.2. Legal basis", "The subject-matter covered by the [Brussels] Convention is now within the ambit of Article 65 of the Treaty; the legal basis for this proposal is Article 61(c) of that Treaty.", "The form chosen for the instrument – a regulation – is warranted by a number of considerations. The Member States cannot be left with the discretion not only to determine rules of jurisdiction, the purpose of which is to achieve certainty in the law for the benefit of individuals and economic operators, but also the procedures for the recognition and enforcement of judgments, which must be clear and uniform in all Member States.", "...", "Section 2 – Enforcement", "This Section describes the procedure to be followed either for formal recognition ... or for a declaration of enforceability in a Member State other than the State of origin of the judgment. The purpose of this procedure, of course, is to declare a judgment that is enforceable in the State of origin enforceable; there is no effect on actual enforcement of the judgment in the Member State addressed. The procedure is directed towards obtaining a rapid decision. Considerable changes have accordingly been made to the Brussels Convention mechanism. For one thing, the court or authority responsible for declaring the judgment enforceable in the Member State addressed has no power to proceed of its own motion to review the grounds for non-enforcement of the judgment provided for by Articles 41 and 42. These may be reviewed, if at all, only in the course of an appeal from the party against whom enforcement has been authorised. The court or competent authority is limited to making formal checks on the documents presented in support of the application; they are determined by the Regulation. Moreover, the grounds for non-recognition or non ‑ enforcement have been narrowed down quite considerably.", "...", "Article 41 [corresponding to Article 34 of the EC Regulation]", "This Article determines the sole grounds on which a court seised of an appeal may refuse or revoke a declaration of enforceability. These grounds have been reframed in a restrictive manner to improve the free movement of judgments.", "For one thing, adding the adverb ‘ manifestly ’ in point 1 underscores the exceptional nature of the public policy ground. For another, the ground most commonly relied on by debtors to oppose enforcement has been modified to avoid abuses of procedure. To prevent enforcement being excluded, it will be enough for the defaulting defendant in the State of origin to have been served with notice in sufficient time and in such a way as to enable him to arrange for his defence. A mere formal irregularity in the service procedure will not debar recognition or enforcement if it has not prevented the debtor from arranging for his defence. Moreover, if the debtor was in a position to appeal in the State of origin on grounds of a procedural irregularity and has not done so, he is not entitled to invoke that procedural irregularity as a ground for refusing or revoking a declaration in the State addressed. ...”", "(c) The CJEU ’ s case-law", "57. In the case of Peter Klomps v. Karl Michel (16 June 1981, C-166/80, ECR 1593, EU :C:1981:137 ), the CJEU further defined the scope of the guarantees contained in Article 27 § 2 of the Brussels Convention (corresponding in part to Article 34 § 2 of the Brussels I Regulation). It held that the provision in question remained applicable where the defendant had lodged an objection against a judgment given in default and a court of the State in which the judgment was given had held the objection to be inadmissible on the ground that the time for lodging an objection had expired. Furthermore, even where a court in the State of origin had held, in separate adversarial proceedings, that service had been duly effected, Article 27 § 2 still required the court in which enforcement was sought to examine whether service had been effected in sufficient time to enable the defendant to arrange for his defence.", "58. In its judgment in ASML Netherlands BV v. Semiconductor Industry Services GmbH (SEMIS), cited above, the CJUE was called on to give a ruling as to whether the condition that it must have been “possible”, within the meaning of Article 34 § 2 in fine of the Brussels I Regulation, to commence proceedings to challenge the default judgment required the judgment to have been duly served on the defendant or whether it was sufficient for the latter to have become aware of its existence at the stage of the enforcement proceedings in the State in which enforcement was sought. The CJEU adopted the following reasoning.", "“20. ... Article 34(2) of Regulation No 44/2001 does not necessarily require the document which instituted the proceedings to be duly served, but does require that the rights of defence are effectively respected.", "21. Finally, Article 34(2) provides an exception to ground for refusal of recognition or enforcement of a judgment, that is to say, in the case where the defendant has failed to commence proceedings to challenge the judgment when it was possible for him to do so.", "22. Therefore, Article 34(2) of Regulation No 44/2001 must be interpreted in the light of the objectives and the scheme of that regulation.", "23. First, as regards the objectives of that regulation, it is clear from the 2nd, 6th, 16th and 17th recitals in the preamble that it seeks to ensure the free movement of judgments from Member States in civil and commercial matters by simplifying the formalities with a view to their rapid and simple recognition and enforcement.", "24. However, that objective cannot be attained by undermining in any way the right to a fair hearing ...", "25. The same requirement appears in the 18th recital in the preamble to Regulation No 44/2001, pursuant to which respect for the rights of defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability of a decision, if he considers one of the grounds for non-enforcement to be present.", "...", "29. Second, in relation to the scheme established by Regulation No 44/2001 as regards recognition and enforcement, it must be observed ... that the observance of the rights of defence of a defendant in default of appearance is ensured by a double review.", "30. In the original proceedings in the State in which the judgment was given, it follows from the combined application of Articles 26(2) of Regulation No 44/2001 and Article 19(1) of Regulation No 1348/2000, that the court hearing the case must stay the proceedings so long as it is not shown that the defendant has been able to receive the document which instituted the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.", "31. If, during recognition and enforcement proceedings in the State in which enforcement is sought, the defendant commences proceedings against a declaration of enforceability issued in the State in which the judgment was given, the court hearing the action may find it necessary to examine a ground for non ‑ recognition or enforcement, such as that referred to in Article 34(2) of Regulation No 44/2001.", "32. It is in light of those considerations that it must be established whether, where the default judgment has not been served, the mere fact that the person against whom enforcement of the judgment is sought was aware of its existence at the stage of enforcement is sufficient to justify the conclusion that it was possible for him, within the meaning of Article 34(2) of Regulation No 44/2001, to commence proceedings to challenge that judgment.", "33. It is common ground that, in the case in the main proceedings, the default judgment was not served on the defendant, so that the latter was unaware of its contents.", "34. As the Austrian, German, Netherlands and Polish Government and the Commission of the European Communities have rightly argued in their observations submitted to the Court, the commencement of proceedings against a judgment is possible only if the person bringing those proceedings was able to familiarise himself with its contents, the mere fact that the person concerned is aware of the existence of that judgment being insufficient in that regard.", "35. In order for the defendant to have the opportunity to bring proceedings enabling him to assert his rights, as provided for in the case-law set out in paragraphs 27 and 28 of this judgment, he should be able to acquaint himself with the grounds of the default judgment in order to challenge them effectively.", "36. It follows that only knowledge by the defendant of the contents of the default judgment guarantees, in accordance with the requirements of respect for the rights of defence and the effective exercise of those rights, that it is possible for the defendant, within the meaning of Article 34(2) of Regulation No 44/2001, to commence proceedings to challenge that judgment before the courts of the State in which the judgment was given.", "...", "39. Article 34(2) of Regulation No 44/2001 does not mean, however, that the defendant is required to take additional steps going beyond normal diligence in the defence of his rights, such as those consisting in becoming acquainted with the contents of a judgment delivered in another Member State.", "40. Consequently, in order to justify the conclusion that it was possible for a defendant to commence proceedings to challenge a default judgment against him, within the meaning of Article 34(2) of Regulation No 44/2001, he must have been aware of the contents of that decision, which presupposes that it was served on him.", "...", "49. In the light of all the foregoing considerations, the answer to the questions referred must be that Article 34(2) of Regulation No 44/2001 is to be interpreted as meaning that it is ‘ possible ’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given.”", "59. In the case of Bernardus Hendrikman and Maria Feyen v. Magenta Druck & Verlag GmbH (10 October 1996, C-78/95, ECR I-4943, EU:C:1996:380 ), the CJEU found that where proceedings had been initiated against a person without his knowledge and a lawyer had appeared on his behalf but without his authority, the defendant was still to be regarded as being “in default of appearance” within the meaning of Article 27 § 2 of the Brussels Convention, even if the proceedings before the court first seised had become proceedings inter partes.", "60. In Trade Agency Ltd v. Seramico Investments Ltd (6 September 2012, C-619/10), the CJEU was called on to give a ruling as to whether, where the judgment given in default of appearance in the member State of origin was accompanied by the certificate referred to in Annex V to the Brussels I Regulation, the court of the member State in which enforcement was sought could nevertheless check whether the information in the certificate was consistent with the evidence. The CJEU found as follows.", "“32. Specifically as regards the ground mentioned in Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, it must be held that it aims to ensure that the rights of defence of a defendant in default of appearance delivered in the Member State of origin are observed by a double review ... Under that system, where an appeal is lodged, the court of the Member State in which enforcement is sought must refuse or revoke the enforcement of a foreign judgment given in default of appearance if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment whereas it was possible for him to do so.", "33. In that context, it is common ground that whether the defendant was served with the document which instituted the proceedings is a relevant aspect of the overall assessment of a factual nature ..., which must be conducted by the court of the Member State in which enforcement is sought in order to ascertain whether that defendant has the time necessary in order to prepare his defence or to take the steps necessary to prevent a decision delivered in default of appearance.", "34. That being the case, it must be observed that the fact that the foreign judgment is accompanied by the certificate cannot limit the scope of the assessment to be made pursuant to the double control, by the court of the Member State in which enforcement is sought, once it examines the ground for challenge mentioned in Article 34(2) of Regulation No 44/2001.", "...", "36. Next, ... since the court or authority competent to issue that certificate is not necessarily the same as that which gave the judgment whose enforcement is sought, that information can only have prima facie value. That follows also from the fact that production of the certificate is not obligatory, since in its absence in accordance with Article 55 of Regulation No 44/2001, the court in the Member State in which enforcement is sought which has jurisdiction to issue the declaration of enforceability may accept an equivalent document or, if it considers that it has sufficient information, dispense with requesting its production.", "37. Finally, ... it must be stated that, as is clear from the wording of Annex V to the regulation, the information contained in the certificate is limited to ‘ [d]ate of service of the document instituting the proceedings where judgment was given in default of appearance ’, without mentioning any other information which helps to ascertain whether the defendant was in a position to defend himself such as, in particular, the means of service or the address where service was effected.", "38. It follows that, when examining the ground for challenge set out in Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, the court of the Member State in which enforcement is sought has jurisdiction to carry out an independent assessment of all the evidence and thereby ascertain, where necessary, whether that evidence is consistent with the information in the certificate, for the purpose of establishing, first, whether the defendant in default of appearance was served with the document instituting proceedings and, second, if service was effected in sufficient time and in such a way as to enable him to arrange for his defence.", "...", "43. In that connection, the Court has already held that it is apparent from recitals 16 to 18 in the preamble to Regulation No 44/2001 that the system of appeals for which it provides against the recognition or enforcement of a judgment aims to establish a fair balance between, on the one hand, mutual trust in the administration of justice in the Union, and, on the other, respect for the rights of the defence, which means that the defendant should, where necessary, be able to appeal in an adversarial procedure against the declaration of enforceability if he considers one of the grounds for non ‑ enforcement to be present (see, to that effect, Case C ‑ 420/07 Apostolides [2009] ECR I ‑ 3571, paragraph 73).", "...", "46. Having regard to all of the foregoing considerations, the answer to the first question is that Article 34(2) of Regulation No 44/2001, to which Article 45(1) thereof refers, read in conjunction with recitals 16 and 17 in the preamble, must be interpreted as meaning that, where the defendant brings an action against the declaration of enforceability of a judgment given in default of appearance in the Member State of origin which is accompanied by the certificate, claiming that he has not been served with the document instituting the proceedings, the court of the Member State in which enforcement is sought hearing the action has jurisdiction to verify that the information in that certificate is consistent with the evidence.”", "61. In the case of Apostolides v. Orams (28 April 2009, C-420/07, ECR I-3571, EU :C:2005:271 ), meanwhile, the CJEU stated as follows.", "“55. As a preliminary point, it should be recalled that Article 34 of Regulation No 44/2001 must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation ... With regard, more specifically, to the public-policy clause in Article 34(1) of the regulation, it may be relied on only in exceptional cases ...", "...", "73. ... [I]t is apparent from recitals 16 to 18 in the preamble to Regulation No 44/2001 that the system of appeals for which it provides against the recognition or enforcement of a judgment aims to establish a fair balance between, on the one hand, mutual trust in the administration of justice in the Union, which justifies judgments given in a Member State being, as a rule, recognised and declared enforceable automatically in another Member State and, on the other hand, respect for the rights of the defence, which means that the defendant should, where necessary, be able to appeal in an adversarial procedure against the declaration of enforceability if he considers one of the grounds for non-enforcement to be present.", "74. The Court has had occasion, in Case C-283/05 ASML [2006] ECR I-12041, to make clear the differences between Article 34(2) of Regulation No 44/2001 and Article 27(2) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters ...", "75. Article 34(2) of Regulation No 44/2001, unlike Article 27(2) of the Convention, does not necessarily require the document which instituted the proceedings to be duly served, but does require that the rights of the defence are effectively respected ...", "76. Under Articles 34(2) and 45(1) of Regulation No 44/2001, the recognition or enforcement of a default judgment must be refused, if there is an appeal, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge that judgment before the courts of the Member State of origin when it was possible for him to do so.", "77. It is clear from the wording of those provisions that a default judgment given on the basis of a document instituting proceedings which was not served on the defendant in sufficient time and in such a way as to enable him to arrange for his defence must be recognised if he did not take the initiative to appeal against that judgment when it was possible for him to do so.", "...", "80. In the light of the foregoing, the answer to the ... question [referred for a preliminary ruling] is that the recognition or enforcement of a default judgment cannot be refused under Article 34(2) of Regulation No 44/2001 where the defendant was able to commence proceedings to challenge the default judgment and those proceedings enabled him to argue that he had not been served with the document which instituted the proceedings or with the equivalent document in sufficient time and in such a way as to enable him to arrange for his defence.”", "2. Regulation No 1215/2012: new recast version", "62. The recast version of the Brussels I Regulation (known as “Brussels I bis ”), introduced by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), came into force on 10 January 2015.", "63. Article 39 of the new version abolished the declaration of enforceability ( exequatur ) procedure and established the principle of automatic enforceability of judgments given in another member State. It provides as follows:", "“A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required.”", "64. However, Article 45 § 1 of the new version reiterates the terms of Article 34 § 2 of the Brussels I Regulation:", "“On the application of any interested party, the recognition of a judgment shall be refused:", "(a) if such recognition is manifestly contrary to public policy ( ordre public ) in the Member State addressed;", "(b) where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;", "...”", "C. Provisions concerning service of judicial documents", "65. Prior to 1 May 2004, the date of accession of Cyprus and Latvia to the European Union, the service of judicial documents between the two countries was governed by the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which was ratified both by Cyprus (where it came into force on 1 June 1983) and by Latvia (where it came into force on 1 November 1995). This Convention applies in all cases where a judicial or extrajudicial document is to be transmitted for service abroad, except where the address of the person to be served with the document is not known.", "66. Since the accession of Cyprus and Latvia to the European Union on 1 May 2004, the service of judicial documents has been governed by the Regulation on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. The first version of this Regulation (Council Regulation (EC) No 1348/2000 of 29 May 2000) was repealed and replaced on 30 December 2007 by a new version (Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007).", "III. RELEVANT LAW OF THE RESPONDENT STATE", "67. At the material time the relevant sections of the Latvian Civil Procedure Law ( Civilprocesa likums ) read as follows.", "Section 8(1)", "“The court shall establish the circumstances of the case by assessing evidence obtained in accordance with the law.”", "Section 9", "“1. The parties shall have equal procedural rights.", "2. The court shall ensure that the parties are able to exercise on an equal footing the rights conferred on them for the defence of their interests.”", "Section 230(1)", "“In the decision [ lēmums; not ruling on the merits] the court or judge shall indicate:", "...", "7. the detailed arrangements and time-limits for lodging an appeal against the decision.”", "Section 637(2)", "“Recognition of a foreign judgment shall be refused only if one of the following grounds for non-recognition exists:", "...", "2. the foreign judgment has not become enforceable in accordance with the law;", "3. the defendant has been unable to defend his or her rights, particularly where judgment was given in default and the defendant was not duly and promptly summoned to appear before the court, unless he or she had the opportunity to appeal against the judgment and did not do so;", "...", "6. such recognition would be contrary to Latvian public policy [ sabiedriskā iekārta ];", "...”", "Section 644", "“ ( 1 ) After it has been recognised, a foreign judgment which is enforceable in the State in which it was given shall be enforced in accordance with the present Law.", "( 2 ) With regard to the rules on the enforcement of judgments laid down by Council Regulation No 44/2001 ..., the provisions of [this] Chapter ... concerning recognition of judgments given by foreign courts shall apply in so far as [Regulation No 44/2001] so provides.”", "IV. RELEVANT ELEMENTS OF CYPRIOT LAW", "68. In accordance with the relevant provisions of Cypriot law furnished by the Cypriot Government (see paragraph 10 above), a defendant against whom judgment has been given in default may apply to have the judgment set aside (Order 17, Rule 10 of the Civil Procedure Rules). The lodging of such an application is not subject to any time-limit; however, the defendant must provide a reasonable explanation for his or her failure to appear. Hence, according to the case-law of the Cypriot courts, a defendant may lodge an application to set aside in two sets of circumstances:", "(a) where the defendant was not duly summoned to appear before the court which gave judgment. In such cases the judge is required to set aside the judgment given in default; he or she has no discretion to decide otherwise;", "(b) where the defendant was duly summoned but produces an affidavit putting forward an arguable case and explaining why he did not appear (for example, because he did not know about the proceedings, he had instructed a lawyer to appear on his behalf but the lawyer failed to do so, or he made an honest and reasonable mistake as to the deadline for appearing before the court). In such cases the court may grant the application to set aside but is not required to do so (Supreme Court judgment in the case of Phylactou v. Michael (1982, 1 A.A.D., 204) ).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "69. The applicant claimed to be the victim of a violation of Article 6 § 1 of the Convention. He complained that in issuing a declaration of enforceability in respect of the judgment of the Limassol District Court of 24 May 2004, which in his view was clearly defective as it had been given in breach of his defence rights, the Senate of the Latvian Supreme Court had infringed his right to a fair hearing. Article 6 § 1, in so far as relevant to the present case, provides:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Chamber judgment", "70. In its judgment the Chamber began by observing that, since the complaint against Cyprus had been declared inadmissible as being out of time (see paragraph 4 above), the Court did not have jurisdiction to determine whether the Limassol District Court had complied with Article 6 § 1 of the Convention. The scope of the case was therefore confined to ascertaining whether, in ordering the enforcement of the Cypriot judgment in Latvia, the Latvian courts had observed the fundamental principles of a fair hearing within the meaning of that provision. In that connection the Chamber found that the observance by the State of its legal obligations arising out of membership of the European Union was a matter of general interest and that this also applied to the implementation of the Brussels I Regulation, based on the principle of “mutual trust in the administration of justice”. The Latvian courts had therefore had a duty to ensure the recognition and rapid and effective enforcement of the Cypriot judgment in Latvia. The Chamber further observed that the protection of fundamental rights afforded by the European Union was in principle equivalent to that for which the Convention provided (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §§ 160-65, ECHR 2005 ‑ VI ).", "71. The Chamber further considered that, having borrowed a sum of money from a Cypriot company and signed an acknowledgment of debt deed governed by Cypriot law and subject to the jurisdiction of the Cypriot courts, the applicant could have been expected to familiarise himself with the legal consequences of any failure on his part to repay the debt and with the manner in which any proceedings would be conducted in Cyprus. In the Chamber ’ s view, the onus had been on the applicant to demonstrate that he had had no effective remedy in the Cypriot courts; however, he had not demonstrated this either before the Senate of the Latvian Supreme Court or before the Court. The Chamber therefore concluded that in dismissing the applicant ’ s arguments simply by reference to the fact that he had not appealed against the Cypriot judgment, the Supreme Court had taken sufficient account of the rights protected by Article 6 § 1 of the Convention. There had therefore been no violation of that provision in the present case.", "72. Lastly, the Chamber did not find any appearance of a violation with regard to the applicant ’ s other allegations under Article 6 § 1.", "B. The parties ’ submissions", "1. The applicant", "73. In his request for referral to the Grand Chamber and his oral pleadings at the hearing, the applicant put forward the following arguments. He submitted at the outset that the presumption of equivalent protection (the “ Bosphorus presumption”) was inapplicable in the present case for two reasons. Firstly, under the Brussels I Regulation the higher courts in Latvia (the Regional Court and the Senate of the Supreme Court) had not been obliged automatically to recognise the Cypriot judgment. On the contrary, Articles 34 and 35 of the Regulation had afforded them a broad margin of discretion to check that the applicant ’ s fundamental procedural rights had been respected in the State of origin and to decide whether or not the judgment should be enforced in Latvia. To that extent, the Latvian courts had therefore retained full responsibility for ensuring compliance with the requirements of Article 6 § 1 of the Convention. Moreover, in declaring the judgment to be enforceable, the Senate of the Supreme Court had clearly breached the terms of Article 34 § 2 of the Regulation as interpreted by the CJEU. In that connection the applicant referred to the CJEU ’ s judgment in Trade Agency Ltd v. Seramico Investments Ltd (see paragraph 60 above) and to the subsequent rulings of the Senate of the Latvian Supreme Court. In two cases, the latter had carefully examined whether the defendants had been duly and promptly summoned to appear before the courts in the State of origin. In both cases, the defendants had not attempted to appeal against the judgments in question and the Senate had not criticised them on that account.", "74. Secondly, the present case was to be distinguished from that in Bosphorus in so far as, in this case, the Senate of the Supreme Court had failed in its duty to consider requesting a preliminary ruling from the CJEU. The applicant acknowledged that he had never requested that such a ruling be sought, but argued that he had had no opportunity to do so since only the other party had been allowed to make submissions on the merits of the case at the hearing of 31 January 2007. Hence, the Latvian courts had not made use of the review mechanisms existing in the European Union legal system. In the applicant ’ s view, if the Latvian Supreme Court had requested a preliminary ruling from the CJEU, it would most likely have indicated that the Supreme Court was empowered to verify whether the applicant had been duly informed of the proceedings before the Cypriot court and whether it had been, or still was, open to him to appeal against the Cypriot judgment. The applicant referred in that connection to paragraph 38 of Trade Agency Ltd v. Seramico Investments Ltd. In his view, the present case was therefore more akin to the case in Michaud v. France (no. 12323/11, §§ 112-15, ECHR 2012), in which the Court had found that the Bosphorus presumption did not apply, for several reasons including the one just cited.", "75. The applicant acknowledged that the observance by the State of its legal obligations arising out of membership of the European Union was a matter of general interest. However, it would be erroneous and inconsistent with the Court ’ s settled case-law to find, as the Chamber had done in its judgment, that this reason alone constituted a legitimate aim sufficient to justify restricting the rights guaranteed by the Convention. In the Court ’ s case-law, that objective had never been regarded as sufficient justification for interference with fundamental rights unless it was accompanied by other legitimate aims such as the prevention of crime (the applicant referred to Michaud, cited above) or the protection of the rights of others (he referred to Povse v. Austria ( dec. ), no. 3890/11, 18 June 2013). In the applicant ’ s submission, since the Brussels I Regulation had not required the Latvian authorities to enforce the Cypriot judgment automatically and unconditionally, the interference in question had not pursued any legitimate aim.", "76. In the applicant ’ s view, his situation was fundamentally different from that in Apostolides v. Orams, which had been the subject of proceedings before both the CJEU (see paragraph 61 above) and the European Court of Human Rights (see Orams v. Cyprus ( dec. ), no. 27841/07, 10 June 2010). In that case, the applicants had been able to appeal against the impugned judgment. Their lawyer had been informed of the hearing before the Cypriot Supreme Court at which their appeal was to be examined and had actually appeared and pleaded his clients ’ case. In Strasbourg, the applicants had complained only of the lack of written notice and the Court had found that the guarantees of Article 6 § 1 did not extend to requiring written notice to be given. In the present case, by contrast, the applicant had never been served with the document instituting the proceedings.", "77. The applicant further submitted that, having repaid his contractual debt of his own free will, he could not have expected that proceedings would be brought against him in Cyprus. The Senate of the Latvian Supreme Court should have satisfied itself that the possibility of appealing against the impugned judgment in Cyprus existed in law and in fact instead of placing the entire burden of proof on the applicant. In his submission, he should not be criticised for not attempting to appeal against the Cypriot judgment, for three reasons. Firstly, the judgment itself had contained no reference to the available judicial remedies. Secondly, placing such a burden of proof on him ran counter to the approach taken by the CJEU in ASML Netherlands BV v. Semiconductor Industry Services GmBh (SEMSIS), according to which “it [was] ‘ possible ’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents, because it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given” (see paragraph 58 above). Thirdly, according to the information supplied by the Cypriot Government, the possibility of an appeal lodged out of time being allowed in Cyprus was highly speculative and was a matter for the court ’ s discretion (see paragraph 68 above). Moreover, since the Riga Regional Court judgment of 2 October 2006 refusing to declare the judgment enforceable had been in his favour (see paragraph 32 above), the applicant had had no reason to attempt to lodge an appeal in Cyprus at that point.", "78. In view of all the above considerations the applicant submitted that, in declaring the Cypriot judgment enforceable and refusing to examine his argument that he had not been duly notified of the examination of the case by the Cypriot court, the Latvian courts had failed to observe the guarantees of a fair hearing, in breach of Article 6 § 1 of the Convention.", "79. Lastly – still from the standpoint of Article 6 § 1 – the applicant criticised the way in which the hearing of 31 January 2007 before the Senate of the Supreme Court had been conducted. He complained in particular that the principle of equality of arms had not been respected and that the Senate had refused to provide him with a copy of the record of the hearing.", "2. The Government", "80. Unlike the applicant, the Government were of the view that the Bosphorus presumption applied in the present case. Firstly, they submitted that the grounds for non-recognition provided for in Article 34 § 2 of the Brussels I Regulation could not be interpreted as granting the court in the member State in which enforcement was sought a margin of discretion, as the grounds for refusing recognition were clearly set out in the text of that Article. Referring to the explanatory memorandum concerning the Proposal for a Regulation (see paragraph 56 above) and to the CJEU ’ s judgment in Apostolides v. Orams (see paragraph 61 above), the Government submitted that the legal form of a regulation had been expressly chosen by the European Union institutions in order not to leave any discretion to the member States. The provisions of the Regulation were autonomous and could not be interpreted or applied in the light of domestic law, and Article 34 had to be interpreted strictly since it constituted an obstacle to the attainment of one of the fundamental objectives of the Regulation as a whole. Furthermore, the court with jurisdiction to rule on the enforcement of the judgment in the member State in question did not have any authority to review the possible grounds for non-enforcement on its own initiative. Consequently, the Senate of the Supreme Court had not enjoyed any discretion in deciding to recognise and enforce the Limassol District Court judgment. In so doing, it had simply complied with its strict obligations arising out of Latvia ’ s membership of the European Union.", "81. Secondly, the Government asserted that the sole fact that the Senate of the Supreme Court had not made full use of the review mechanism provided for by EU law did not result in the rebuttal of the Bosphorus presumption. In their submission, the application of that presumption could not be made subject to a requirement for the domestic courts to request a preliminary ruling from the CJEU in all cases without exception, as this would run counter to the spirit of cooperation that must govern relations between the domestic courts and the CJEU. The domestic courts referred a question for a preliminary ruling only where they had doubts as to the correct interpretation or application of EU legislation. They were not required to do so if they found that the question raised was not relevant, that the provision in question had already been interpreted by the CJEU or that the correct application of EU law was so obvious as to leave no scope for reasonable doubt. That was precisely the situation in the present case, as the CJEU ’ s existing case-law had been sufficiently explicit with regard to the meaning and scope of the requirements of Article 34 § 2 of the Brussels I Regulation. Moreover, if the applicant had considered it necessary to obtain clarifications on that provision, he could have asked the Senate of the Supreme Court to refer the matter to the CJEU for a preliminary ruling. The fact that he had not done so was an indication that he had considered such a move to serve no purpose.", "82. The Government added that, in rejecting the applicant ’ s argument that he had not been duly informed of the proceedings on the sole ground that he had not challenged the Cypriot judgment, the Senate of the Latvian Supreme Court had acted in full conformity with Article 34 § 2 of the Brussels I Regulation as interpreted by the CJEU. The applicant had at no point alleged, still less proved, before the domestic courts or the Court that he had at least attempted to institute appeal proceedings in Cyprus. Moreover, it was reasonable to consider that in view of the six-month period that had elapsed between June 2006 (when the applicant had been apprised of the content of the Cypriot judgment) and January 2007 (when the Senate of the Supreme Court had examined the case), the applicant had had sufficient time to lodge an appeal in Cyprus. On that point the Government referred to the Cypriot Government ’ s observations, from which it was clear that such a remedy had been available in theory and in practice and had not been subject to a strict time-limit (see paragraph 68 above). They submitted that Article 34 § 2 of the Brussels I Regulation was based on the premise that any defects in a judgment given in default should be remedied in the country of origin. If the applicant had lodged an appeal with the Cypriot courts, the Latvian Supreme Court could have stayed or adjourned the enforcement proceedings in accordance with Articles 37 § 1 and 46 § 1 of the Regulation. In omitting, without any real justification, to lodge such an appeal, the applicant had effectively prevented the Latvian courts from refusing enforcement of the judgment.", "83. Observing that the applicant had been an investment consultant, the Government further submitted that he should have known that failure to repay his debt would result in proceedings in the Cypriot courts and that the summons would be sent to the address indicated in the acknowledgment of debt deed. As the applicant had not provided his true address to the company with which he had entered into the loan agreement, his conduct might possibly be characterised as an abuse of rights for the purposes of Article 17 of the Convention. Furthermore, given that the applicant had consented to the application of Cypriot law, he must be assumed to have been very familiar with the legal system in Cyprus, including the available remedies. Consequently, his argument that the Cypriot judgment had contained no references to the available judicial remedies lacked any relevance, bearing in mind that neither the Brussels I Regulation, nor Cypriot law, nor Article 6 § 1 of the Convention required the courts to insert such a reference in their judgments. Hence, the situation of which the applicant complained before the Court had resulted essentially from his own conduct.", "84. The Government submitted that one of the European Union ’ s objectives was to secure the effective functioning of the common market. Attainment of and compliance with that objective, and mutual trust in the administration of justice, constituted a general interest sufficient to justify certain restrictions on the right to a fair hearing, especially since the fairness of proceedings was also a fundamental principle of EU law recognised by the CJEU. Hence, the system established by the Brussels I Regulation respected the right to a fair hearing. Accordingly, and in the light of the Bosphorus presumption, the Government requested the Court to find that the Senate of the Supreme Court had taken sufficient account of the applicant ’ s rights under Article 6 § 1 of the Convention.", "85. Lastly, the Government rejected the applicant ’ s claims that the hearing of 31 January 2007 had been conducted unfairly. In their submission, it was clear from the Supreme Court judgment that the applicant ’ s lawyer had had an opportunity to make oral pleadings at the hearing. The reason no record had been drawn up was that this was not required under domestic law in such a case. Furthermore, Article 6 § 1 did not require the domestic courts to produce a written record of every hearing.", "C. Observations of the third-party interveners", "1. The Estonian Government", "86. The Estonian Government explained the ratio legis behind Article 34 of the Brussels I Regulation (as applicable at the material time). This Article had been very carefully drafted and struck a balance between respect for the rights of the defence and the need to ensure, by simplifying the formalities, rapid and straightforward recognition and enforcement in each member State of judgments in civil and commercial matters emanating from another member State. The manner in which the provision in question was drafted left no discretion to the courts in the member State in which enforcement was sought, especially since the abundant and clear case-law of the CJEU provided them with precise guidelines as to its application. For that reason, the application of the Bosphorus presumption was not subject to a requirement for the courts of the member States systematically to request a preliminary ruling from the CJEU whenever Article 34 § 2 of the Brussels I Regulation was applicable.", "87. The Estonian Government attached considerable weight to the fact that the two States concerned, Cyprus and Latvia, were Parties to the Convention and subject to the Court ’ s jurisdiction. Accordingly, unlike in cases where the judgment to be enforced emanated from a third country, the court from which the declaration of enforceability was sought did not have to satisfy itself that the proceedings in the State of origin had generally conformed to the requirements of Article 6 § 1 of the Convention. Its review should be confined to the formalities of the enforcement proceedings, as it remained open to the defendant to assert his or her Article 6 § 1 rights in the courts of the State of origin.", "88. In the Estonian Government ’ s submission, where defendants against whom judgment had been given in default did not lodge an appeal against the judgment in question in the State of origin after they had been made aware of it, and failed to demonstrate that such a remedy would be impossible or ineffective, the court in the State in which enforcement was sought had no discretion, in examining an appeal in the context of the enforcement proceedings, to refuse the other party ’ s request for recognition and enforcement. In view of the overall rationale behind Article 34 § 2 of the Brussels I Regulation and the general principles of civil procedure, it was reasonable for the burden of proof in that regard to be placed on the defendant. Article 34 § 2 of the Brussels I Regulation afforded individuals a standard of protection equivalent to that provided by Article 6 § 1 of the Convention for the purposes of the Bosphorus case ‑ law, and thus required the State addressed to enforce the judgment as swiftly as possible.", "2. The European Commission", "89. The European Commission submitted that the Bosphorus presumption was applicable in the present case. It confirmed that under Article 45 § 1 of the Brussels I Regulation the court in which the declaration of enforceability was requested could refuse the request only on one of the grounds set forth in Articles 34 and 35 of the Regulation. Hence, the courts of the member States could not exercise any discretion in ordering the enforcement of a judgment given in another member State. Such an act fell strictly within the scope of the international legal obligations of the member State in which enforcement was sought, arising out of its membership of the European Union.", "90. As to the fact that in the present case, as in the case in Michaud (cited above), the domestic courts had not sought a preliminary ruling from the CJEU, the European Commission submitted that there was nevertheless one significant difference between the two cases. In this case, unlike in Michaud, it could not be said that the “full potential of the [preliminary ruling] procedure” had not been deployed, given that the applicant had not asked the courts in the respondent State to refer the question for a preliminary ruling or even raised any doubts as to the compatibility of the relevant provisions of European Union law with the Convention right whose violation he now alleged before the Court. The Commission further noted that a request for a preliminary ruling did not constitute a remedy to be exhausted for the purposes of Article 35 § 1 of the Convention. In general terms, the Commission submitted that the application of the Bosphorus presumption could not be made subject to a requirement for the courts of the EU member States to seek a preliminary ruling from the CJEU whenever they were called on to apply the provisions of EU law. Even assuming that EU law imposed an obligation on the domestic court concerned to seek a preliminary ruling, failure to comply with that obligation should not be “penalised” by a refusal on the part of the European Court of Human Rights to apply the Bosphorus presumption.", "91. In the European Commission ’ s view, the recognition and enforcement machinery established by the Brussels I Regulation was compatible in itself with the right to a fair hearing protected by Article 6 § 1 of the Convention. Article 34 § 2 of the Regulation had to be read together with the other relevant provisions of the Regulation and with the Regulations on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (see paragraph 66 above). The combined effect of those provisions meant that the right to a fair hearing was guaranteed not only during the stage of recognition and enforcement of a judgment but also earlier, at the stage of the court proceedings in the member State of origin. Recognition and enforcement did not depend on whether the document instituting the proceedings had been served in accordance with the formal requirements, but rather on a specific examination of whether the defendant ’ s right to adversarial process had in fact been respected. The Commission further observed that Article 34 § 1 of the Regulation provided for recognition and enforcement to be refused where “recognition [was] manifestly contrary to public policy in the Member State in which recognition [was] sought”. In the Commission ’ s view, this provision afforded an even greater degree of protection of fundamental rights as it did not require an appeal to be lodged in the State of origin.", "92. The Commission submitted that in interpreting the conditions laid down in Article 34 § 2 of the Brussels I Regulation, the CJEU had been concerned to protect the right of defendants in default of appearance to a fair hearing. In particular, in its judgment in ASML Netherlands BV v. Semiconductor Industry Services (SEMSIS) (cited at paragraph 58 above) it had held that a defendant in default of appearance could be deemed to have been in a position to bring proceedings to challenge a judgment given against him only if he was in fact acquainted with its contents, which presupposed that it had been served on him. Simply being aware of the existence of a judgment was not sufficient in that regard. Hence, the existence or otherwise of remedies in the country of origin had to be assessed with reference to the point at which the defendant had actually been apprised of the content of the judgment as distinct from merely learning of its existence. It was true that Article 43 of the Brussels I Regulation did not require the court in which the declaration of enforceability was requested to automatically examine whether the circumstances enumerated in Article 34 § 2 applied, including the possibility of lodging an appeal in the State of origin. However, in the Commission ’ s view, this had no bearing on compliance with Article 6 § 1 of the Convention, since in principle neither that provision nor European Union law governed the admissibility of evidence and its assessment by the domestic courts.", "93. In sum, the European Commission submitted that, far from providing for “automatic” recognition and enforcement of judgments given in another member State, the Brussels I Regulation made recognition and enforcement contingent on respect for the right to adversarial process and hence for the right to a fair hearing within the meaning of Article 6 § 1 of the Convention.", "3. The Centre for Advice on Individual Rights in Europe (the AIRE Centre )", "94. The AIRE Centre stressed the need to safeguard the right to a fair hearing in the context of the procedure for the recognition and enforcement of judgments within the European Union, and the duty of the domestic courts to secure that right. A court hearing an appeal against the recognition and enforcement of a foreign judgment could not confine its attention to verifying compliance with the formal requirements of Article 34 § 2 of the Brussels I Regulation or (after 10 June 2015) those of Article 45 § 1 ( b ) of the Brussels I bis Regulation. On the contrary, where the rights of the defence had been breached in the State of origin, the court could and should make use of Article 34 § 1 of the Brussels I Regulation or Article 45 § 1 (a) of the Brussels I bis Regulation, according to which the request for recognition and enforcement had to be refused if “recognition [was] manifestly contrary to public policy in the Member State in which recognition [was] sought”. In the AIRE Centre ’ s submission, if the court failed to do so it would be committing a manifest error of interpretation of European Union law. In other words, the court hearing the appeal had discretion to refuse enforcement of the judgment if it had been given in breach of the rights of the defence.", "95. The AIRE Centre further submitted that the Court should review its current approach to the Bosphorus presumption, especially in the light of the stance adopted by the CJEU in Stefano Melloni v. Ministerio Fiscal and in Opinion 2/13 ( see paragraphs 47 and 49 above). It maintained in particular that the conclusions of Opinion 2/13, and especially paragraph 192, were radically at odds with protection of the human rights guaranteed by the Convention.", "D. The Court ’ s assessment", "1. Preliminary considerations", "96. The Court reiterates at the outset that, as regards disputes whose outcome is decisive for civil rights, Article 6 § 1 of the Convention is applicable to the execution of foreign final judgments (see McDonald v. France ( dec. ), no. 18648/04, 29 April 2008; Saccoccia v. Austria, no. 69917/01, §§ 60-62, 18 December 2008; and Sholokhov v. Armenia and the Republic of Moldova, no. 40358/05, § 66, 31 July 2012). It is not disputed that the Limassol District Court judgment of 24 May 2004, ordering the applicant to pay a contractual debt together with the corresponding interest and the costs and expenses in respect of the proceedings, concerned the substance of a “civil” obligation on the part of the applicant. Article 6 § 1 is therefore applicable in the present case.", "97. The judgment of 24 May 2004 was given by a Cypriot court and the Latvian courts ordered its enforcement in Latvia. Consequently, the applicant ’ s complaints under Article 6 of the Convention as set out in his application concerned both the Cypriot proceedings and those in Latvia. With regard to the former, the applicant complained that his defence rights had been infringed, while in the case of the latter he complained that the courts had validated the proceedings in Cyprus by ordering the recognition and enforcement of the judgment. However, the Court declared the complaint against Cyprus inadmissible as being out of time (partial decision of 3 0 March 2010, see paragraph 4 above). At the present stage of the proceedings the application therefore concerns Latvia alone. Accordingly, the Court does not have jurisdiction ratione personae to give a formal ruling on whether the Limassol District Court complied with the requirements of Article 6 § 1. However, it must ascertain whether, in declaring the Cypriot judgment to be enforceable, the Latvian courts acted in accordance with that provision (see, mutatis mutandis, Pellegrini v. Italy, no. 30882/96, §§ 40 ‑ 41, ECHR 2001 ‑ VIII). In doing so the Court cannot but have regard to the relevant aspects of the proceedings in Cyprus.", "98. The Court considers that a decision to enforce a foreign judgment cannot be regarded as compatible with the requirements of Article 6 § 1 of the Convention if it was taken without the unsuccessful party having been afforded any opportunity of effectively asserting a complaint as to the unfairness of the proceedings leading to that judgment, either in the State of origin or in the State addressed. In their third-party submissions, the Estonian Government stressed the importance of the distinction between the enforcement of a judgment emanating from another Contracting Party to the Convention and that of a judgment given by the authorities of a State that was not a Party to the Convention. In the first case, where there was a presumption that the parties could secure protection of their Convention rights in the country of origin of the judgment, the review by the court in the State addressed should be more limited than in the second case (see paragraph 87 above). The Court notes that it has never previously been called upon to examine observance of the guarantees of a fair hearing in the context of mutual recognition based on European Union law. However, it has always applied the general principle whereby a court examining a request for recognition and enforcement of a foreign judgment cannot grant the request without first conducting some measure of review of that judgment in the light of the guarantees of a fair hearing; the intensity of that review may vary depending on the nature of the case (see, mutatis mutandis, Drozd and Janousek v. France and Spain, 26 June 1992, § 110, Series A no. 240, and Pellegrini, cited above, § 40 ). In the present case the Court must therefore determine, in the light of the relevant circumstances of the case, whether the review conducted by the Senate of the Latvian Supreme Court was sufficient for the purposes of Article 6 § 1.", "99. The Court emphasises that, in accordance with Article 19 of the Convention, its sole duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly made by a national court in assessing the evidence before it, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The Court cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 197, ECHR 2012). Accordingly, it does not have jurisdiction to rule on issues of fact raised before it such as the applicant ’ s claim that he had repaid his debt before the proceedings were instituted against him (see paragraphs 15 and 77 above).", "100. The Court further notes that the recognition and enforcement of the Cypriot judgment took place in accordance with the Brussels I Regulation, which was applicable at the relevant time. The applicant alleged that the Senate of the Supreme Court had breached Article 34 § 2 of that Regulation and the corresponding provision of the Latvian Civil Procedure Law. The Court reiterates that it is not competent to rule formally on compliance with domestic law, other international treaties or European Union law (see, for example, S.J. v. Luxembourg, no. 34471/04, § 52, 4 March 2008, and Jeunesse v. the Netherlands [GC], no. 12738/10, § 110, 3 October 2014 ). The task of interpreting and applying the provisions of the Brussels I Regulation falls firstly to the CJEU, in the context of a request for a preliminary ruling, and secondly to the domestic courts in their capacity as courts of the Union, that is to say, when they give effect to the Regulation as interpreted by the CJEU. The jurisdiction of the European Court of Human Rights is limited to reviewing compliance with the requirements of the Convention, in this case with Article 6 § 1. Consequently, in the absence of any arbitrariness which would in itself raise an issue under Article 6 § 1, it is not for the Court to make a judgment as to whether the Senate of the Latvian Supreme Court correctly applied Article 34 § 2 of the Brussels I Regulation or any other provision of European Union law.", "2. The presumption of equivalent protection (the “ Bosphorus presumption ” )", "(a) Scope of the Bosphorus presumption", "101. The Court reiterates that, even when applying European Union law, the Contracting States remain bound by the obligations they freely entered into on acceding to the Convention. However, those obligations must be assessed in the light of the presumption established by the Court in the Bosphorus judgment and developed in Michaud (both cited above; see also M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 338, ECHR 2011, and Povse, cited above, § 76). In Michaud, the Court summarised its case ‑ law on this presumption in the following terms.", "“102. The Court reiterates that absolving the Contracting States completely from their Convention responsibility where they were simply complying with their obligations as members of an international organisation to which they had transferred a part of their sovereignty would be incompatible with the purpose and object of the Convention: the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards. In other words, the States remain responsible under the Convention for the measures they take to comply with their international legal obligations, even when those obligations stem from their membership of an international organisation to which they have transferred part of their sovereignty (see Bosphorus, cited above, § 154).", "103. It is true, however, that the Court has also held that action taken in compliance with such obligations is justified where the relevant organisation protects fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent – that is to say not identical but ‘ comparable ’ – to that for which the Convention provides (it being understood that any such finding of ‘ equivalence ’ could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection). If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.", "However, a State will be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it has exercised State discretion (see M.S.S. v. Belgium and Greece, cited above, § 338). In addition, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention ’ s role as a ‘ constitutional instrument of European public order ’ in the field of human rights (see Bosphorus, cited above, §§ 152-58, and also, among other authorities, M.S.S. v. Belgium and Greece, cited above, §§ 338-40).", "104. This presumption of equivalent protection is intended, in particular, to ensure that a State Party is not faced with a dilemma when it is obliged to rely on the legal obligations incumbent on it as a result of its membership of an international organisation which is not party to the Convention and to which it has transferred part of its sovereignty, in order to justify its actions or omissions arising from such membership vis-à-vis the Convention. It also serves to determine in which cases the Court may, in the interests of international cooperation, reduce the intensity of its supervisory role, as conferred on it by Article 19 of the Convention, with regard to observance by the States Parties of their engagements arising from the Convention. It follows from these aims that the Court will accept such an arrangement only where the rights and safeguards it protects are given protection comparable to that afforded by the Court itself. Failing that, the State would escape all international review of the compatibility of its actions with its Convention commitments.”", "102. In the context of the former “first pillar” of the European Union (see Bosphorus, cited above, § 72), the Court held that the protection of fundamental rights afforded by the legal system of the European Union was in principle equivalent to that for which the Convention provided. In arriving at that conclusion it found, firstly, that the European Union offered equivalent protection of the substantive guarantees, observing in that connection that at the relevant time respect for fundamental rights had already been a condition of the lawfulness of Community acts and that the CJEU referred extensively to Convention provisions and to Strasbourg case-law in carrying out its assessment (see Bosphorus, cited above, § 159). This finding has applied a fortiori since 1 December 2009, the date of entry into force of Article 6 (amended) of the TEU, which confers on the Charter of Fundamental Rights of the European Union the same value as the Treaties and gives fundamental rights, as guaranteed by the Convention and as they result from the constitutional traditions common to the member States, the status of general principles of European Union law (see Michaud, cited above, § 106).", "103. The Court found the substantive protection afforded by EU law to be equivalent taking into account the provisions of Article 52 § 3 of the Charter of Fundamental Rights, according to which, in so far as the rights contained in the Charter correspond to rights guaranteed by the Convention, their meaning and scope are the same, without prejudice to the possibility for EU law to provide more extensive protection (see Bosphorus, cited above, § 80). In examining whether, in the case before it, it can still consider that the protection afforded by EU law is equivalent to that for which the Convention provides, the Court is especially mindful of the importance of compliance with the rule laid down in Article 52 § 3 of the Charter of Fundamental Rights given that the entry into force of the Treaty of Lisbon (see paragraph 37 above) conferred on the Charter the same legal value as the Treaties.", "104. Secondly, the Court has recognised that the mechanism provided for by European Union law for supervising observance of fundamental rights, in so far as its full potential has been deployed, also affords protection comparable to that for which the Convention provides. On this point, the Court has attached considerable importance to the role and powers of the CJEU, despite the fact that individual access to that court is far more limited than access to this Court under Article 34 of the Convention (see Bosphorus, §§ 160-65, and Michaud, §§ 106-11, both cited above).", "(b) Application of the Bosphorus presumption in the present case", "105. The Court reiterates that the application of the Bosphorus presumption in the legal system of the European Union is subject to two conditions, which it set forth in Michaud, cited above. These are the absence of any margin of manoeuvre on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by European Union law (ibid., §§ 113 ‑ 15). The Court must therefore ascertain whether these two conditions were satisfied in the present case.", "106. With regard to the first condition, the Court notes at the outset that the provision to which the Senate of the Supreme Court gave effect was contained in a Regulation, which was directly applicable in the member States in its entirety, and not in a Directive, which would have been binding on the State with regard to the result to be achieved but would have left it to the State to choose the means and manner of achieving it (see, conversely, Michaud, cited above, § 113). As to the precise provision applied in the instant case, namely Article 34 § 2 of the Brussels I Regulation, the Court notes that it allowed the refusal of recognition or enforcement of a foreign judgment only within very precise limits and subject to certain preconditions, namely that “the defendant [had] not [been] served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant [had] failed to commence proceedings to challenge the judgment when it [had been] possible for him to do so”. It is clear from the interpretation given by the CJEU in a fairly extensive body of case-law (see paragraphs 57-61 above) that this provision did not confer any discretion on the court from which the declaration of enforceability was sought. The Court therefore concludes that the Senate of the Latvian Supreme Court did not enjoy any margin of manoeuvre in this case.", "107. The present case is therefore distinguishable from that in M.S.S. v. Belgium and Greece, cited above. In that case, in examining the issue of Belgium ’ s responsibility under the Convention, the Court noted that, under the terms of the applicable Regulation (the Dublin II Regulation), the Belgian State authorities retained the discretionary power to decide whether or not to make use of the “sovereignty” clause which allowed them to examine the asylum application and to refrain from sending the applicant back to Greece if they considered that the Greek authorities were likely not to fulfil their obligations under the Convention ( ibid., §§ 339-40). By contrast, Article 34 § 2 of the Brussels I Regulation did not grant States any such discretionary powers of assessment.", "108. In its third-party submissions, the AIRE Centre argued that the Senate of the Latvian Supreme Court could and should have had recourse to Article 34 § 1 of the Brussels I Regulation, according to which the request for a declaration of enforceability had to be refused if “recognition [was] manifestly contrary to public policy in the Member State in which recognition [was] sought”. According to the AIRE Centre this provision allowed the Latvian court a degree of discretion (see paragraph 94 above). However, the arguments raised by the applicant before the Supreme Court were confined to the application of Article 34 § 2. The Court will therefore confine its analysis to the applicant ’ s complaints as raised before the Supreme Court and in the context of the present proceedings. It considers that it is not its task to determine whether another provision of the Brussels I Regulation should have been applied.", "109. As regards the second condition, namely the deployment of the full potential of the supervisory mechanism provided for by European Union law, the Court observes at the outset that in the Bosphorus judgment, cited above, it recognised that, taken overall, the supervisory mechanisms put in place within the European Union afforded a level of protection equivalent to that for which the Convention mechanism provided (ibid., §§ 160-64). Turning to the specific circumstances of the present case, it notes that the Senate of the Supreme Court did not request a preliminary ruling from the CJEU regarding the interpretation and application of Article 34 § 2 of the Regulation. However, it considers that this second condition should be applied without excessive formalism and taking into account the specific features of the supervisory mechanism in question. It considers that it would serve no useful purpose to make the implementation of the Bosphorus presumption subject to a requirement for the domestic court to request a ruling from the CJEU in all cases without exception, including those cases where no genuine and serious issue arises with regard to the protection of fundamental rights by EU law, or those in which the CJEU has already stated precisely how the applicable provisions of EU law should be interpreted in a manner compatible with fundamental rights.", "110. The Court observes that, in a different context, it has held that national courts against whose decisions no judicial remedy exists in national law are obliged to give reasons for refusing to refer a question to the CJEU for a preliminary ruling, in the light of the exceptions provided for by the case-law of the CJEU. The national courts must therefore state the reasons why they consider it unnecessary to seek a preliminary ruling (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, § 62, 20 September 2011, and Dhahbi v. Italy, no. 17120/09, §§ 31-34, 8 April 2014). The Court emphasises that the purpose of the review it conducts in this regard is to ascertain whether the refusal to refer a question for a preliminary ruling constituted in itself a violation of Article 6 § 1 of the Convention; in so doing, it takes into account the approach already established by the case-law of the CJEU. This review therefore differs from that which it conducts when, as in the present case, it examines the decision not to request a preliminary ruling as part of its overall assessment of the degree of protection of fundamental rights afforded by European Union law. The Court carries out this assessment, in line with the case-law established in Michaud, in order to determine whether it can apply the Bosphorus presumption to the decision complained of, a presumption which the Court applies in accordance with conditions which it has itself laid down.", "111. The Court thus considers that the question whether the full potential of the supervisory mechanisms provided for by European Union law was deployed – and, more specifically, whether the fact that the domestic court hearing the case did not request a preliminary ruling from the CJEU is apt to preclude the application of the Bosphorus presumption – should be assessed in the light of the specific circumstances of each case. In the present case it notes that the applicant did not advance any specific argument concerning the interpretation of Article 34 § 2 of the Brussels I Regulation and its compatibility with fundamental rights such as to warrant a finding that a preliminary ruling should have been requested from the CJEU. This position is confirmed by the fact that the applicant did not submit any request to that effect to the Senate of the Latvian Supreme Court. The present case is thus clearly distinguishable from Michaud, cited above, in which the national Supreme Court refused the applicant ’ s request to seek a preliminary ruling from the CJEU even though the issue of the Convention compatibility of the impugned provision of European Union law had never previously been examined by the CJEU (ibid., § 114). Hence, the fact that the matter was not referred for a preliminary ruling is not a decisive factor in the present case. The second condition for application of the Bosphorus presumption should therefore be considered to have been satisfied.", "112. In view of the foregoing considerations, the Court concludes that the Bosphorus presumption is applicable in the present case, as the Senate of the Supreme Court did no more than implement Latvia ’ s legal obligations arising out of its membership of the European Union (see, mutatis mutandis, Povse, cited above, § 78). Accordingly, the Court ’ s task is confined to ascertaining whether the protection of the rights guaranteed by the Convention was manifestly deficient in the present case such that this presumption is rebutted. In that case, the interest of international cooperation would be outweighed by observance of the Convention as a “constitutional instrument of European public order” in the field of human rights (see Bosphorus, § 156, and Michaud, § 103, both cited above). In examining this issue the Court must have regard both to Article 34 § 2 of the Brussels I Regulation as such and to the specific circumstances in which it was implemented in the present case.", "3. Allegation that the protection of the rights guaranteed by the Convention was manifestly deficient", "(a) General remarks on mutual recognition", "113. In general terms, the Court observes that the Brussels I Regulation is based in part on mutual - recognition mechanisms which themselves are founded on the principle of mutual trust between the member States of the European Union. The Preamble to the Brussels I Regulation states that the approach underpinning the Regulation is one of “ [ m ] utual trust in the administration of justice” within the European Union, which implies that “the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation” (see paragraph 54 above). The Court is mindful of the importance of the mutual - recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require. As stated in Articles 81 § 1 and 82 § 1 of the TFEU, the mutual recognition of judgments is designed in particular to facilitate effective judicial cooperation in civil and criminal matters. The Court has repeatedly asserted its commitment to international and European cooperation (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, §§ 63 and 72, ECHR 1999 ‑ I, and Bosphorus, cited above, § 150). Hence, it considers the creation of an area of freedom, security and justice in Europe, and the adoption of the means necessary to achieve it, to be wholly legitimate in principle from the standpoint of the Convention.", "114. Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67 § 1 of the TFEU. However, it is apparent that the aim of effectiveness pursued by some of the methods used results in the review of the observance of fundamental rights being tightly regulated or even limited. Hence, the CJEU stated recently in Opinion 2/13 that “when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that ..., save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU” (see paragraph 49 above). Limiting to exceptional cases the power of the State in which recognition is sought to review the observance of fundamental rights by the State of origin of the judgment could, in practice, run counter to the requirement imposed by the Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient.", "115. Moreover, the Court observes that where the domestic authorities give effect to European Union law and have no discretion in that regard, the Bosphorus presumption is applicable. This is the case where the mutual - recognition mechanisms require the court to presume that the observance of fundamental rights by another member State has been sufficient. The domestic court is thus deprived of its discretion in the matter, leading to automatic application of the Bosphorus presumption. The Court emphasises that this results, paradoxically, in a twofold limitation of the domestic court ’ s review of the observance of fundamental rights, due to the combined effect of the presumption on which mutual recognition is founded and the Bosphorus presumption.", "116. In the Bosphorus judgment the Court reiterated that the Convention is a “constitutional instrument of European public order” ( ibid., § 156). Accordingly, the Court must satisfy itself that, where the conditions for application of the Bosphorus presumption are met (see paragraphs 105-06 above), the mutual - recognition mechanisms do not leave any gap or particular situation which would render the protection of the human rights guaranteed by the Convention manifestly deficient. In doing so it takes into account, in a spirit of complementarity, the manner in which these mechanisms operate and in particular the aim of effectiveness which they pursue. Nevertheless, it must verify that the principle of mutual recognition is not applied automatically and mechanically (see, mutatis mutandis, X v. Latvia [GC], no. 27853/09, §§ 98 and 107, ECHR 2013) to the detriment of fundamental rights – which, the CJEU has also stressed, must be observed in this context (see, for instance, its judgment in Alpha Bank Cyprus Ltd v. Dau Si Senh and Others, paragraph 48 above). In this spirit, where the courts of a State which is both a Contracting Party to the Convention and a member State of the European Union are called upon to apply a mutual - recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law.", "(b) Whether the protection of fundamental rights was manifestly deficient in the present case", "117. The Court must now seek to ascertain whether the protection of fundamental rights afforded by the Senate of the Latvian Supreme Court was manifestly deficient in the present case such that the Bosphorus presumption is rebutted, as regards both the provision of European Union law that was applied and its implementation in the specific case of the applicant.", "118. The Court considers that the requirement to exhaust remedies arising from the mechanism provided for by Article 34 § 2 of the Brussels I Regulation as interpreted by the CJEU (the defendant must have made use of any remedies available in the State of origin in order to be able to complain of a failure to serve him with the document instituting the proceedings), is not in itself problematic in terms of the guarantees of Article 6 § 1 of the Convention. This is a precondition which pursues the aim of ensuring the proper administration of justice in a spirit of procedural economy and which is based on an approach similar to that underpinning the rule of exhaustion of domestic remedies set forth in Article 35 § 1 of the Convention. This approach comprises two strands. Firstly, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and, secondly, it is presumed that there is an effective remedy available in the domestic system in respect of the alleged breach (see, mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV, and Sargsyan v. Azerbaijan [GC], no. 40167/06, § 115, ECHR 2015). Hence, the Court sees no indication that the protection afforded was manifestly deficient in this regard.", "119. However, the Court emphasises that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents (see, for example, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004-III). These principles, which cover all aspects of procedural law in the Contracting States, are also applicable in the specific sphere of service of judicial documents on the parties (see Miholapa v. Latvia, no. 61655/00, § 23, 31 May 2007, and Övüş v. Turkey, no. 42981/04, § 47, 13 October 2009), although Article 6 § 1 cannot be interpreted as prescribing a specific form of service of documents (see Orams, cited above).", "120. Turning to the present case the Court notes that the applicant maintained, in particular, before the Latvian courts that he had not been duly notified in good time of the summons to appear before the Limassol District Court and the request by the company F.H. Ltd., with the result that he had been unable to arrange for his defence. He therefore argued that recognition of the impugned judgment should have been refused under Article 34 § 2 of the Brussels I Regulation. The applicant contended that the summons had been sent to an address where it had been physically impossible to reach him, even though the Cypriot and Latvian lawyers representing the claimant company had been perfectly aware of his business address in Riga and could easily have obtained his private address (see paragraph 30 above). He therefore raised cogent arguments in the Latvian courts alleging the existence of a procedural defect which, a priori, was contrary to Article 6 § 1 of the Convention and precluded the enforcement of the Cypriot judgment in Latvia.", "121. In the light of the general principles reiterated above, the Court notes that, in the proceedings before the Senate of the Supreme Court, the applicant complained that he had not received any summons or been notified of the Cypriot judgment. In so doing he relied on the grounds for non-recognition provided for by Article 34 § 2 of the Brussels I Regulation. That provision states expressly that such grounds may be invoked only on condition that proceedings have previously been commenced to challenge the judgment in question, in so far as it was possible to do so. The fact that the applicant relied on that Article without having challenged the judgment as required necessarily raised the question of the availability of that legal remedy in Cyprus in the circumstances of the present case. In such a situation the Senate was not entitled simply to criticise the applicant, as it did in its judgment of 31 January 2007, for not appealing against the judgment concerned, and to remain silent on the issue of the burden of proof with regard to the existence and availability of a remedy in the State of origin; Article 6 § 1 of the Convention, like Article 34 § 2 in fine of the Brussels I Regulation, required it to verify that this condition was satisfied, in the absence of which it could not refuse to examine the applicant ’ s complaint. The Court considers that the determination of the burden of proof, which, as the European Commission stressed (see paragraph 92 above), is not governed by European Union law, was therefore decisive in the present case. Hence, that point should have been examined in adversarial proceedings leading to reasoned findings. However, the Supreme Court tacitly presumed either that the burden of proof lay with the defendant or that such a remedy had in fact been available to the applicant. This approach, which reflects a literal and automatic application of Article 34 § 2 of the Brussels I Regulation, could in theory lead to a finding that the protection afforded was manifestly deficient such that the presumption of equivalent protection of the rights of the defence guaranteed by Article 6 § 1 is rebutted. Nevertheless, in the specific circumstances of the present application the Court does not consider this to be the case, although this shortcoming is regrettable.", "122. It is clear, in fact, from the information provided by the Cypriot Government at the Grand Chamber ’ s request, and not disputed by the parties, that Cypriot law afforded the applicant, after he had learned of the existence of the judgment, a perfectly realistic opportunity of appealing despite the length of time that had elapsed since the judgment had been given. In accordance with Cypriot legislation and case-law, where a defendant against whom a judgment has been given in default applies to have that judgment set aside and alleges, on arguable grounds, that he or she was not duly summoned before the court which gave judgment, the court hearing the application is required – and not merely empowered – to set aside the judgment given in default (see paragraph 68 above). Accordingly, the Court is not convinced by the applicant ’ s argument that such a procedure would have been bound to fail. The Court has consistently held that if there is any doubt as to whether a given remedy offers a real chance of success, that point must be submitted to the domestic courts (see, for example, Akdivar and Others, cited above, § 71, and Naydenov v. Bulgaria, no. 17353/03, § 50, 2 6 November 2009). In the instant case the Court considers that, in the period between 16 June 2006 (the date on which he was given access to the entire case file at the premises of the first ‑ instance court and was able to acquaint himself with the content of the Cypriot judgment) and 31 January 2007 (the date of the hearing of the Senate of the Supreme Court), the applicant had sufficient time to pursue a remedy in the Cypriot courts. However, for reasons known only to himself, he made no attempt to do so.", "123. The fact that the Cypriot judgment made no reference to the available remedies does not affect the Court ’ s findings. It is true that section 230(1) of the Latvian Civil Procedure Law requires the courts to indicate in the text of their decisions the detailed arrangements and time-limits for appealing against them (see paragraph 67 above). However, while such a requirement is laudable in so far as it affords an additional safeguard which facilitates the exercise of litigants ’ rights, its existence cannot be inferred from Article 6 § 1 of the Convention (see Société Guérin Automobiles v. the 15 Member States of the European Union ( dec. ), no. 51717/99, 4 July 2000). It was therefore up to the applicant himself, if need be with appropriate advice, to enquire as to the remedies available in Cyprus after he became aware of the judgment in question.", "124. On this point the Court shares the view of the Government that the applicant, who was an investment consultant, should have been aware of the legal consequences of the acknowledgment of debt deed which he had signed. That deed was governed by Cypriot law, concerned a sum of money borrowed by the applicant from a Cypriot company and contained a clause conferring jurisdiction on the Cypriot courts. Accordingly, the applicant should have ensured that he was familiar with the manner in which possible proceedings would be conducted before the Cypriot courts (see, mutatis mutandis, Robba v. Germany, no. 20999/92, Commission decision of 28 February 1996, unreported ). Having omitted to obtain information on the subject, he contributed to a large extent, as a result of his inaction and lack of diligence, to bringing about the situation of which he complained before the Court and which he could have prevented so as to avoid incurring any damage (see, mutatis mutandis, Hussin v. Belgium ( dec. ), no. 70807/01, 6 May 2004, and McDonald, cited above).", "125. Hence, in the specific circumstances of the present case, the Court does not consider that the protection of fundamental rights was manifestly deficient such that the presumption of equivalent protection is rebutted.", "126. Lastly, as regards the applicant ’ s other complaints under Article 6 § 1, and in so far as it has jurisdiction to rule on them, the Court finds no appearance of a violation of the rights secured under that provision.", "127. Accordingly, there has been no violation of Article 6 § 1." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The facts of the case may be summarised as follows.", "9. On an unspecified date the first applicant left Afghanistan for Pakistan, where he met and married the second applicant. The couple subsequently moved to Iran, where they lived for fifteen years.", "10. On an unspecified date the couple and their children left Iran for Turkey and from there took a boat to Italy. According to the findings of the Italian police and the identification forms annexed to the observations of the Italian Government, the applicants ( the couple and their five oldest children ) landed on the coast of Calabria on 16 July 2011 and were immediately subjected to the EURODAC identification procedure (taking of photographs and fingerprints) after supplying a false identity. The same day the couple and the five children were placed in a reception facility provided by the municipal authorities of Stignano (Reggio Calabria province), where they remained until 26 July 2011. On that date they were transferred to the Reception Centre for Asylum Seekers ( Centro di Acoglienza per Richiedenti Asilo, “CARA”) in Bari, in the Puglia region, once their true identity had been established.", "11. According to the applicants, living conditions in the centre were poor, particularly on account of the lack of appropriate sanitation facilities, the lack of privacy and the climate of violence among the occupants.", "12. On 28 July 2011 the applicants left the CARA in Bari without permission. They subsequently travelled to Austria, where on 30 July 2011 they were again registered in the EURODAC system. They lodged an application for asylum in Austria which was rejected. On 1 August 2011 Austria submitted a request to take charge of the applicants to the Italian authorities, which on 17 August 2011 formally accepted the request. On an unspecified date the applicants travelled to Switzerland. On 14 November 2011 the Austrian authorities informed their Italian counterparts that the transfer had been cancelled because the applicants had gone missing.", "13. On 3 November 2011 the applicants applied for asylum in Switzerland.", "14. On 15 November 2011 the first and second applicants were interviewed by the Federal Migration Office ( “the FMO ” ) and stated that living conditions in Italy were difficult and that it would be impossible for the first applicant to find work there.", "15. On 22 November 2011 the FMO requested the Italian authorities to take charge of the applicants. In their respective observations the Swiss and Italian Governments agreed that the request had been tacitly accepted by Italy.", "16. In a decision of 24 January 2012 the FMO rejected the applicants ’ asylum application and made an order for their removal to Italy. The administrative authority considered that “the difficult living conditions in Italy [did] not render the removal order unenforceable”, that “it [was] therefore for the Italian authorities to provide support to the applicants” and that “the Swiss authorities [did] not have competence to take the place of the Italian authorities.” On the basis of these considerations it concluded that “the file [did] not contain any specific element disclosing a risk to the applicants ’ lives in the event of their return to Italy.”", "17. On 2 February 2012 the applicants appealed to the Federal Administrative Court. In support of their appeal they submitted that the reception conditions for asylum seekers in Italy were in breach of Article 3 of the Convention and that the federal authorities had not given sufficient consideration to their complaint in that regard.", "18. In a judgment of 9 February 2012 the Federal Administrative Court dismissed the appeal, upholding the FMO ’ s decision in its entirety. The court considered that “while there [were] shortcomings in the reception and social welfare arrangements, and asylum seekers [could] not always be taken care of by the authorities or private charities”, there was no evidence in the file capable of “rebutting the presumption that Italy complie[d] with its obligations under public international law.” With more particular reference to the applicants ’ conduct it held that “in deciding to travel to Switzerland, they [had] not given the Italian authorities the opportunity to assume their obligations with regard to [the applicants ’ ] situation .”", "19. On 13 March 2012 the applicants requested the FMO to have the proceedings reopened and to grant them asylum in Switzerland. They submitted that their individual situation had not been examined in detail. The FMO forwarded the request to the Federal Administrative Court, which reclassified it as a “ request for revision” of the judgment of 9 February 2012 and rejected it in a judgment dated 21 March 2012, on the ground that the applicants had not submitted any new grounds which they could not have relied on during the ordinary proceedings. The applicants had based their request mainly on a more detailed account of their stay in Italy and the fact that their children were now attending school in Switzerland.", "20. In a letter of 10 May 2012 which reached the Registry on 15 May, the applicants applied to this Court and sought an interim measure requesting the Swiss Government not to deport them to Italy for the duration of the proceedings.", "21. In a fax dated 18 May 2012 the Registry informed the Swiss Government ’ s Agent that the acting President of the Section to which the case had been assigned had decided to indicate to the Swiss Government under Rule 39 of the Rules of Court that the applicants should not be deported to Italy for the duration of the proceedings before the Court.", "IV. THE ITALIAN CONTEXT", "A. Asylum procedure", "37. Any individual wishing to claim asylum in Italy must apply for that purpose to the border police or, if he or she is already in Italy, to the immigration department of the police headquarters ( questura ). Once the asylum application has been lodged, the person concerned has the right to enter the country and has access to the asylum procedure, and is given leave to remain pending a decision by the territorial commission for the recognition of international protection (“the territorial commission”) on his or her asylum application.", "38. Where the asylum seeker does not have a valid entry visa, the police carry out an identification procedure ( fotosegnalamento ), if need be with the assistance of an interpreter. This procedure involves taking passport photographs and fingerprints. The latter are compared with the fingerprints in the EURODAC system and the national AFIS database ( Automated Fingerprint Identification System ). Following this procedure, the asylum seeker is issued with a document ( cedolino ) confirming the initial registration of the application and containing details of his or her subsequent appointments, in particular the appointment for formal registration of the application.", "39. The formal application for asylum must be presented in writing. On the basis of an interview with the asylum seeker conducted in a language which he or she understands, the police fill out the “standard form C/3 for recognition of refugee status within the meaning of the Geneva Convention” ( Modello C/3 per il riconoscimento dello status di rifugiato ai sensi della Convenzione di Ginevra ), which includes questions concerning the asylum seeker ’ s personal details ( first name and surname, date of birth, nationality, first names and surnames of parents/spouse/children and their whereabouts), the person ’ s journey to Italy and the reasons why he or she has fled his or her country of origin and is applying for asylum in Italy. The asylum seeker may provide a document written in his or her own language – to be appended to the form – containing an account of the background to the asylum application. The police keep the original form and provide the asylum seeker with a stamped copy.", "40. The asylum seeker is then invited, by means of written notification from the police, to attend an interview with the competent territorial commission, made up of two representatives of the Ministry of the Interior, one representative of the municipality, province ( provincia ) or region concerned and one representative of the Office of the United Nations High Commissioner for Refugees ( “ UNHCR ” ). The asylum seeker is assisted by an interpreter during the interview. The territorial commission may", "(i) allow the asylum application by granting the asylum seeker refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees ( “ the 1951 Refugee Convention ” );", "(ii) not grant the asylum seeker refugee status within the meaning of the 1951 Refugee Convention, but grant him or her subsidiary protection under Article 15(c) of the Qualification Directive (see paragraph 2 9 above), as implemented by Legislative Decree ( decreto legislativo ) no. 251/2007;", "(iii) not grant asylum or subsidiary protection but grant a residence permit on compelling humanitarian grounds under the terms of Law Decrees ( decreti - legge ) nos. 286/1998 and 25/2008; or", "(iv) not grant the asylum seeker any form of protection. In this case he or she will be issued with an order to leave Italy ( foglio di via ) within fifteen days.", "41. A person recognised as a refugee under the 1951 Refugee Convention will be issued with a renewable five-year residence permit. He or she is further entitled, inter alia, to a travel document for aliens ( titolo di viaggio per stranieri ), to work, to family reunification and to benefit under the general schemes for social assistance, health care, social housing and education provided for by Italian domestic law.", "42. A person granted subsidiary protection will be issued with a residence permit valid for three years which may be renewed by the territorial commission that granted it. This permit may also be converted into a residence permit allowing the holder to work in Italy, provided this is requested before the expiry of the original residence permit and provided the person concerned holds an identity document. A residence permit granted for subsidiary protection entitles the person concerned, inter alia, to a travel document for aliens, to work, to family reunification and to benefit under the general schemes for social assistance, health care, social housing and education provided for by Italian domestic law.", "43. A person granted a residence permit on compelling humanitarian grounds will be issued with a one-year permit which can be converted into a residence permit allowing the holder to work in Italy, provided he or she has a passport. A residence permit granted on humanitarian grounds entitles the person concerned to work, to health care and, if he or she has no passport, to a travel document for aliens.", "44. An appeal against a refusal by the territorial commission to grant international protection may be lodged with the District Court (Civil Division) ( sezione civile del Tribunale ) and further appeals may be lodged with the Court of Appeal ( Corte di appello ) and, at last instance, with the Court of Cassation ( Corte di cassazione ). Such appeals must be submitted by a lawyer and the asylum seeker concerned may apply for legal aid for this purpose.", "45. An asylum seeker may withdraw his or her asylum application at any stage of the procedure for examination of the application by completing a form to that effect. This form can be obtained from the police immigration department. The formal withdrawal of an asylum application entails the end of the procedure without the application being examined by the territorial commission. However, there is no automatic assumption that the asylum application has been withdrawn where the person concerned moves out of the asylum seekers ’ reception centre, departs for an unknown destination or leaves the country. Where an asylum seeker fails to appear before the territorial commission, the latter will officially report his or her absence and determine the application on the basis of the information in the file. In most cases it will reject the asylum application for “untraceability” ( diniego per irreperibilità ). The person concerned may then request a fresh interview and the procedure is reactivated once he or she has been notified of the date of the interview.", "B. Legal framework and organisation of the reception system for asylum seekers", "46. A detailed description of the legal framework and organisation of the reception system for asylum seekers in Italy, provided by the Italian Government, is set out in the Court ’ s decision in Mohammed Hussein and Others v. the Netherlands and Italy ((dec.), no. 27725/10, § 45, 2 April 2013 ). In their third-party observations in the present case, the Italian Government added the following information:", "“ ...", "The protection system had 3,000 places available per year. However, the extraordinary influx of asylum seekers in 2013 led to an assessment concerning reinforcement of the SPRAR [ Sistema di protezione per richiedenti asilo e rifugiati ].", "The resources allocated by the OPCM (Order of the President of the Council of Ministers) of 21 September 2011 (€9 million) made it possible to increase, from 2012, for one year, the reception capacity of the system to 700 units. Subsequently, 800 additional places were achieved with further resources (€5,000,000 allocated with the OCPC of 23 November 2012 n. 26).", "Subsequent further increases of 3,900 places have led, to date, to a total capacity of the SPRAR of 8,400 reception places.", "Last, in September 2013, because the landings continued, a new request for 8,000 additional places – compared to the mere 1,230 places hitherto available – was submitted to the SPRAR network.", "It therefore follows that, within the framework of the SPRAR system, the reception capacity that can be guaranteed at present is 9,630 third-country nationals in all.", "The consolidation of the SPRAR, owing to the expansion of its capacity and the allocation of permanent resources, represents a fundamental step in reinforcing and ensuring a firm basis for the reception system, with a view to proceeding from an emergency situation to a situation of normal management.", "The objective for the next three years, 2014 to 2016, is to further reinforce the SPRAR network by providing an effective capacity of 16,000 places...", "To that end, the Notice to local authorities concerning the selection of projects to be funded aimed at the reception of applicants for, and beneficiaries, of international and humanitarian protection for the period 2014 to 2016 was published in the Official Gazette of 4 September 2013, no. 207.", "At present, the 510 proposed activity projects are being evaluated. ”", "C. Recommendations of the Office of the United Nations High Commissioner for Refugees on important aspects of refugee protection in Italy ( July 2013 )", "47. The relevant passages of the UNHCR Recommendations on important aspects of refugee protection in Italy (July 2013) read as follows [1] :", "“ 1. General background", "... An estimated 4-5 million third-country nationals, including 64,000 refugees live in Italy ...", "3. Access to the asylum procedure", "Efforts were undertaken by the competent authorities, through a new online system and internal instructions, to expedite the registration procedure of asylum applications, to improve management of individual cases throughout the procedure, and to monitor and immediately address delays between the time a person expresses the intention to apply for asylum and the formal registration of an application.", "Despite these positive developments, there continued to be reports indicating that the registration of asylum applications is, in some cases, scheduled several weeks after the asylum-seeker has expressed the intention to apply. This practice also affects transferees to Italy under the Dublin Regulation, who, having previously transited through Italy without registering an asylum application, had applied for international protection in other European countries. This delay may result in late access to reception conditions, as well as a lengthier timeframe before their cases are determined. Furthermore, there are continuing reports of difficulties encountered in some Provincial Police HQs ( Questure ), where a proof of residence ( domicilio ) is requested for the registration of an asylum application. This may cause, in some cases, further delays in accessing the asylum procedure. It is also reported that information leaflets on the international protection procedure, are not being distributed systematically, as foreseen by law.", "Difficulties in accessing the asylum procedure also continue to be reported from Expulsion and Identification Centers (CIEs), due to lack of legal information and assistance as well as administrative obstacles. Moreover, the lack of standard procedures concerning asylum applications by persons detained in CIE have led, in some instances, to delays in the transmission of asylum applications to the competent Immigration Office. These delays may expose asylum-seekers to the risk of repatriation prior to consideration of their asylum applications, which could create the risk of refoulement.", "Since 2011, there have been instances in which Egyptian and Tunisian nationals, who had arrived in Lampedusa in an irregular manner by sea, often directly from their countries of origin, and who had expressed the wish to apply for asylum, were only admitted to the asylum procedure following interventions by Praesidium partners, NGOs or lawyers. Arrivals of these nationality groups have regularly been transferred to CIEs rather than Reception Centres for Asylum-Seekers (CARA), even in cases where the intention to seek asylum had been expressed prior to the transfer. According to recent observations by Praesidium partners, there also seems to be an increasing number of persons (mainly Eritrean, Somali, Afghan and Syrian nationals) who avoid fingerprinting in Italy and try to reach other European countries in order to apply for asylum there, reportedly due to poor reception conditions and integration prospects in Italy.", "With regard to the application of the Dublin Regulation, UNHCR notes that the procedures in Italy for the determination of the state responsible under the Regulation are very lengthy and regularly in excess of the timeframes stipulated in the relevant provisions. The procedures may last up to 24 months, seriously affecting the well ‑ being of asylum-seekers, including of persons with special needs and UASC. Reportedly, these long delays are due to limited human resources. As a result, some 1,000 persons hosted within the reception centers in Italy are either waiting for a decision on the determination of the state responsible under the [Dublin] Regulation or pending their transfer to the responsible Dublin State, aggravating the already strained Italian reception capacities. Following the European Court of Human Rights judgment MSS vs Belgium and Greece, no returns under the Dublin Regulation to Greece are being implemented in practice. However, asylum-seekers fingerprinted in Greece are still considered as ‘ Dublin cases ’ until a decision from the Dublin Unit declares Italy to be competent. Delays are observed to occur also in these cases. Recently, there has been a prioritization of some ‘ Dublin cases ’ hosted in Reception Centers for Asylum-Seekers (CARAs), for whom the determination of the state responsible under the Regulation had been pending for more than six months.", "Asylum-seekers returned to Italy under Dublin II are usually transferred to the main airports in Italy (Rome, Milan, with limited numbers also in Bari and in Venice). In principle, NGOs that manage information services are informed in advance about the arrival of ‘ Dublin cases ’ to provide information in order to activate the asylum ‑ procedure in Italy. The persons returned under the Dublin Regulation are issued, by the border police at the airport, an invitation letter to apply for asylum in the competent Questura, which is identified based on a number of criteria, such as place of previous asylum registration or availability of places in specific reception centres. In Rome, the asylum application is registered directly at the airport premises.", "Concerns about the operation of the Dublin system in the Italian context, as well as the application of Eurodac, are expressed also in the report of UN Special Rapporteur on the Human Rights of Migrants, which referred specifically to the impact of Dublin on the EU ’ s external border states.", "4. The quality of the international protection determination procedure", "In 2012, the number of asylum applications decreased to 17,352, compared to 34,100 applications in 2011. While additional Sections of the Territorial Commissions for the recognition of international protection (hereinafter Territorial Commissions), the bodies competent for the asylum procedure in first instance, were established in order to cope with the increase of applications and the consequent backlog, waiting times for first instance decisions have further grown and vary significantly from one Territorial Commission to another. Delays are greater, where Territorial Commissions are located in large reception centers (Mineo, Crotone), or in large cities (Rome, Milan). Currently, as an average and based on UNHCR observation, an asylum-seeker may wait approximately 4 to 6 months from registration of the asylum application until the decision from a Territorial Commission. In some cases, waiting periods lasting over 12 months have been reported.", "UNHCR remains satisfied with the overall protection standards in the context of the asylum procedure and the work of the Territorial Commissions, including in terms of recognition rates for persons in need of international protection. Due consideration is paid to UNHCR positions and guidelines, for example in relation to specific countries of origin or to legal aspects, such as fear of persecution for reasons of membership of a particular social group. However, a mechanism of systematic quality monitoring, aimed at ensuring a harmonized approach in all Territorial Commissions and minimum quality standards, particularly on procedural aspects, still needs to be put in place, including standardized procedures for the identification and referral of asylum ‑ seekers with special needs, including children, victims of torture and victims of trafficking.", "As regards the Territorial Commissions, it should be noted that members are not required by law to possess prior experience and expertise in the field of asylum and they sometimes fill other positions during their tenure as members of Territorial Commissions. The specialization of decision-makers and interpreters are not adequately guaranteed through regular induction and compulsory trainings.", "Appeals against negative decisions of a Territorial Commission in first instance have to be made within 15 days from the date of communication of the decision, in cases in which the applicant is hosted within a CARA or CIE, and within 30 days in all other cases, to the geographically responsible Civil Court ( Tribunale ). Appeals have automatic suspensive effect except for a number of categories provided by law, in which the suspension of the legal effects of the negative first instance decision can be requested to the judge by the applicant. While official data is not available, lengthy delays in the judicial procedure from the date of an appeal to a decision by the courts are frequently reported, including in cases pertaining to the Dublin Regulation. Positive decisions by courts are directly enforced by the Police Immigration Office, which issues the permit of stay. UNHCR appreciates the efforts made by the Superior School of Magistrates to promote specialization of judges in the field of asylum.", "In 2012, UNHCR received some reports of cases in which asylum-seekers detained in CIEs were expelled to their countries of origin during the period foreseen by law to appeal a negative first instance asylum decision, or while waiting for a decision by the judge on their request for suspension of the legal effects of the negative first instance decision, made in conjunction with the appeal. Such practices could create a risk of refoulement for people who are in need of international protection.", "Free legal aid, foreseen by law in appeals, is not always guaranteed in practice in some tribunals. In Rome, the Bar Association continues to require that the appellant provides an income certificate, issued by the embassy of the relevant country of origin, despite the risks this could pose to the applicant and his or her family-members in the country of origin, and despite the fact that the law provides for free legal aid based on the applicant ’ s own declaration regarding his or her financial needs.", "5. Reception conditions for asylum-seekers", "The arrival of some 63,000 persons by sea in 2011 led to a deterioration in reception standards for asylum-seekers, which continued throughout 2012 and in 2013. Among the arrivals some 28,000 persons, particularly third country nationals arriving from Libya, were channeled automatically into the asylum-procedure by the authorities, creating substantial demands on the reception system. Reception capacity had already - prior to 2011 – been considered insufficient to host asylum-seekers, when significant numbers of arrivals took place.", "To respond to this sudden increase in arrivals, in the context of the ‘ North Africa Immigration Emergency ’, an emergency reception plan was agreed upon by the Government and regional and local administrations, and its implementation entrusted to the Department of Civil Protection. Some 22,000 new arrivals, all third country nationals arriving from Libya and registered as asylum-seekers, were accommodated in hundreds of different reception facilities, most of which were managed by organizations with little or no experience. The emergency reception plan enabled the accommodation of a large number of asylum-seekers who had arrived in a short period of time. Asylum-seekers, however, did not have access to many of the minimum services foreseen by law for their reception. Moreover, the quality of reception measures, which were meant to be provided until the end of the ‘ state of emergency ’, did not improve significantly over time. The Monitoring and Assistance Group established by the Department of Civil Protection in July 2011 in order to support the implementation of the emergency reception plan was discontinued in October 2011 prior to its phasing out.", "Reception conditions deteriorated also in the government reception centers for asylum - seekers (CARAs), mainly due to overcrowding, as the turn-over from the centers was slowed down by the prolonged reception of groups of third country national asylum-seekers who had arrived from Libya within the context of ‘ North Africa Immigration Emergency ’, and by an increased number of asylum applications, resulting in a longer asylum procedures. The reception capacity was thus further strained and the Ministry of Interior has been struggling to identify spaces for the accommodation of newly arrived asylum-seekers ever since. Moreover, reception standards in government centers (CARAs, CDAs and CIEs) declined also because of serious funding constraints, contributing to a situation in which, since 2011, contracts for the management of these facilities have been awarded exclusively on the basis of the lowest-priced offer for the provision of services, with quality considerations not being taken sufficiently into account.", "Although sea arrivals from Libya came close to a complete halt by August 2011, no phasing - out strategy from the emergency reception plan was put in place for over a year. The exit strategy adopted in September 2012 foresaw, inter alia, that failed asylum-seekers, regardless of their continued presence in the emergency reception system, be granted a one year residence permit on humanitarian grounds, and based on a file review by the Territorial Commissions.", "At the beginning of 2013, the Ministry of Interior took over responsibility for the emergency reception plan from the Department of Civil Protection, and extended reception measures until the end of February 2013. Several thousand third country nationals, whose asylum applications had been rejected but who had received a one year residence permit on humanitarian grounds, left the reception facilities before this date. Those who were still staying in the reception facilities were paid a cash contribution of 500 EUR and their reception measures ended. However, the Ministry of Interior instructed the local Prefectures to extend reception measures for persons with special needs and asylum-seekers whose procedure was still pending.", "Official data concerning the socio-economic integration of this specific caseload are not available. Nevertheless, their self-reliance remains a concern after the end of the emergency reception plan. This is mainly because of the poor quality of reception services, the delayed clarification of their legal status, and, more broadly, because of the economic situation in Italy. Moreover, an Assisted Voluntary Return (AVR) programme for some 600 persons was introduced with significant delay and provided limited incentives and support for the return to their countries of origin.", "While Italy committed significant efforts and financial resources to respond to the unexpected number of sea arrivals in 2011, the emergency reception plan put in place in response to the ‘ North Africa Immigration Emergency ’ highlighted longstanding flaws in the reception system, including the lack of strategic and structural planning and the limits of an emergency approach. In UNHCR ’ s view, it illustrated the need for a consolidated and coordinated national reception system. The gaps which have emerged over time placed additional strain on the reception system as a whole, leaving Italy unprepared to respond adequately to emergency situations when they occur, as was the case in 2011.", "To manage the phasing-out of the emergency reception plan, a National Coordination Group was established at the end of 2012. It is chaired by the Ministry of Interior and comprises the Ministry of Labor, the Regions, the Italian National Association of Municipalities (ANCI) and the Italian Union of Provinces (UPI). While not a member, UNHCR has been regularly invited to attend the meetings of the Group since October 2012, as has IOM. The National Coordination Group brings together the most relevant institutional actors and was recently recognized as a permanent body, tasked to plan and coordinate interventions on reception and integration of asylum-seekers and refugees.", "Based on the recommendations of the Group, as part of the exit strategy from the emergency reception plan, the Ministry of Interior has pledged to increase the reception capacity of the System of Protection for Asylum-Seekers and Refugees (SPRAR) from 3,000 to 5,000 places, with the possibility to a further extension up to 8,000 in case of significant influxes. UNHCR welcomes the decision of the Ministry of Interior but underlines the need for a comprehensive reform of the reception system, which should also address post-recognition support to recognized refugees. In fact, although government centres and SPRAR projects (which can host both asylum ‑ seekers and recognized refugees), are able to provide for the reception needs of a significant number of asylum-seekers, support measures for recognized refugees remain vastly insufficient. The necessary reforms, which require strong political commitment and sound governance, should also aim to systematize those improvements to the reception system which have been carried out in recent years mainly through pilot projects and time - limited interventions.", "With regard to the reception of asylum-seekers, significant differences continue to exist in different parts of Italy, depending on the reception facilities and, more broadly, local practices. The practice of limiting reception in CARAs to a maximum of six months, which had been applied to asylum-seekers, irrespective of their ability to provide for themselves, and prior to having received a first instance decision on their applications within this period appears to have been discontinued. This being said, this development does not address the possible need for continued accommodation in reception facilities of asylum-seekers who, pending a decision on appeal against a negative decision, and while entitled to work, may be unable to secure an adequate standard of living, including accommodation, outside reception facilities.", "Italy has transposed the provision of the EU Reception Directive concerning the right to work of asylum-seekers more favourably than the minimum standards required by the Directive. According to Art. 11 of Legislative Decree No. 140/2005, if the asylum procedure is not completed within six months, the stay permit is renewed for another six months and the asylum-seeker is allowed to work. Pilot initiatives, including basic work-skills assessments, have been carried out in government centers in order to facilitate access to the labor market for asylum-seekers, but they have not been mainstreamed in the context of reception services. Support measures for job ‑ seeking concern mainly asylum-seekers for whom the asylum procedure exceeds six months in duration, such as under the Dublin Regulation procedure or when served with a first instance negative decision. Such support is absent in the CARAs, while it is foreseen in SPRAR projects.", "UNHCR has also continued to receive reports of instances in which asylum-seekers do not have immediate access to reception measures when they apply for international protection, but instead receive them only weeks or months later. The delays are the result of structural gaps and lack of capacity in the existing reception system, slow administrative procedures and problems in the registration of the asylum applications. Although local differences exist, alternative measures to provide for the subsistence of asylum-seekers are rarely available in case of delays. Time-limited financial support, foreseen in cases in which accommodation in reception facilities is delayed (Art. 6 Par. 7 of Legislative Decree No. 140/2005) is, to UNHCR ’ s knowledge, not provided. UNHCR is not aware of instances in which asylum-seekers have challenged these delays before a court.", "Dublin transferees, registered as asylum-seekers, generally have access to transit accommodation centers upon return to Italy, available in Milan (35 places), Rome (150 places), Venice (40), Bari (20). Beneficiaries of international protection, granted protection in Italy prior to their departure, however, do not have access to those centers, when returned under the Dublin Regulation. While additional transit accommodation places have been made available in Milan (25 places) and Rome (80 for adult men) for asylum-seekers arriving by air, these places are in practice insufficient as Dublin transferees may have to wait for some days at airports, until the transfer of other asylum-seekers from such transit accommodation centers to SPRAR projects or a CARA is effected. Furthermore, it may also happen that Dublin transferees, upon arrival in Italy, spend several days at airports until placed, even if a space in a reception center had been identified, at the moment Italy had declared its competence under the Dublin Regulation.", "Pursuant to Art. 8 of Legislative Decree No. 140/2005 and other relevant provisions, the specific needs of applicants and the members of their family must be taken into account for reception. Moreover, applications of asylum-seekers with special needs are, in principle, prioritized. Due to the lack of available places in dedicated facilities or SPRAR projects, the number of asylum-seekers with special needs who, despite their situation, have to remain in the CARAs during the asylum procedure, without assistance specific to their needs, has increased compared to previous years. This problem continues also after recognition and conferral of some form of protection. Gaps persist in the form of low levels of coordination among stakeholders, inability to provide adequate legal and social support as well as the necessary logistical follow ‑ up, as well as a poor referral. These problems have worsened to a certain extent since 2011, due to the general deterioration in reception conditions and budget cuts in the social welfare system.", "Asylum-seekers who have been granted a stay permit have the right and duty to enroll in the National Health System (NHS). This requirement is, in general, complied with by asylum - seekers hosted in SPRAR projects. However, asylum-seekers who stay on in the CARAs upon expiration of the initial period of 20 - 35 day foreseen by law, due to the limited number of available places in SPRAR projects, are not systematically provided with a stay permit, and cannot thus enroll in the NHS. Moreover, during the reception period in the CARAs, the management is required to provide services as per the Decree of the Ministry of Interior of 21 November 2008. The quality of these services, including the necessary support to access health care facilities outside the centre, varies in different parts of Italy and reflects the overall lack of harmonization in reception standards.", "Furthermore, some cases have come to UNHCR ’ s attention in which asylum ‑ seekers, including Dublin transferees, are not immediately issued the 3-month residence permit upon expiration of the mandatory period of reception within the CARAs, as foreseen by the law.", "In part to respond to longstanding gaps, at the end of 2012, the Ministry of Interior has agreed to set up, in the context of the Praesidium project, a pilot monitoring scheme in government centres. In each location where government centers are located, a monitoring Commission has been established, chaired by the local Prefecture and comprised of the Provincial Police HQs and Praesidium partner organizations. In UNHCR ’ s view, this is an initial attempt to develop more systematic monitoring and quality control systems, which would require a strong ownership by the Prefectures and willingness of the Ministry of Interior to ensure adequate follow ‑ up.", "...", "RECOMMENDATIONS", "...", "Reception conditions for asylum-seekers", "23. UNHCR calls on the Italian Government to ensure adequate reception capacity for asylum-seekers throughout the country, including when significant numbers of arrivals occur, so that all asylum-seekers lacking the means to provide for themselves are able to access adequate reception, in line with provisions of the EU Directive on Reception Conditions. The reception system needs to be more flexible, so as to be able to respond to fluctuations in the numbers of asylum applications and to the actual length of the asylum procedure.", "24. Reception conditions and standards in all reception facilities need to be harmonized at an acceptable level of quality. Given the structural differences between the various types of facilities (CARAs, CDAs, SPRAR projects, metropolitan area facilities and facilities established in the context of the emergency reception plan), the current approach could be reviewed in order to ensure adequate standards for all asylum-seekers. Such a review should also examine ways to avoid hosting asylum ‑ seekers in large facilities for long periods of time.", "25. Measures are also needed to ensure services provided to asylum-seekers and refugees are tailored to their distinct needs, offering the former the assistance they need pending a decision on their status, whilst providing refugees with the support they require to facilitate their integration in Italian society.", "...", "27. UNHCR encourages the Italian authorities to establish mechanisms aimed at consulting asylum-seekers hosted in reception facilities and at facilitating their active participation, to introduce complaints mechanisms and to ensure that gender differences, age and individual needs are taken into account.", "28. UNHCR calls upon the Italian Government to strengthen its existing monitoring and quality control systems and to consider introducing new, more efficient systems. ... ”", "48. These recommendations were a follow-up to similar recommendations made by UNHCR in 2012, which the Court took into consideration in its decision in Mohammed Hussein ( cited above, § 43).", "D. Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, published on 18 September 2012, following his visit to Italy from 3 to 6 July 2012 (CommDH(2012)26)", "49. This report was examined by the Court in its decision in Mohammed Hussein ( cited above, § 44). The Court deems it useful to refer here to the relevant passages:", "“140. The framework for the reception of migrants remains largely unchanged since the last visit of the Commissioner ’ s predecessor to Italy in May 2011. As noted in the 2011 report, asylum seekers in Italy can be referred to different types of accommodation, including CARAs ( Centri d ’ accoglienza per richiedenti asilo, open first-reception centres for asylum seekers), CDAs ( Centri di accoglienza, reception centres for migrants) and CPSAs ( Centri di primo soccorso ed accoglienza, first aid and reception centres).", "141. Concerns have been raised about the conditions in some of the reception centres. For example, having visited a CARA during its visit in September 2008, the European Committee for the Prevention of Torture (CPT) criticised the fact that this centre was located in prison-like premises. While the Commissioner is aware that the Italian government defined minimum standards for tenders for the management of these facilities, interlocutors voiced their concern about the high variability in the standards of reception centres in practice, which may manifest itself in, for example: a numerical shortage and a lack of adequate training of staff; overcrowding and limitations in the space available for assistance, legal advice and socialisation; physical inadequacy of the facilities and their remoteness from the community; or difficulties in accessing appropriate information.", "142. The inconsistency of the standards in reception centres, as well as the lack of clarity in the regime applicable to the migrants kept in them, became a major concern following the declaration of the ‘ North African emergency ’ in 2011. Under the emergency plan, the existing reception capacity was enhanced in co-operation with Italian regions in order to deal with the sharp increase in arrivals from the coasts of North Africa (34,120 asylum applications were submitted in Italy in 2011, a more than threefold increase compared to the 10,050 applications in 2010). The Commissioner acknowledges the strain put on the Italian reception system in 2011 and commends the efforts of the central and regional authorities to provide the additional reception capacity needed to cope with the effects of the significant increase in migratory flows.", "143. However, the efficiency and viability of an emergency-based approach to asylum and immigration has been questioned by many interlocutors. The 2011 report had already expressed particular concerns over the provision of legal aid, adequate care and psychosocial assistance in the emergency reception centres, and over difficulties relating to the speedy identification of vulnerable persons and the preservation of family unity during transfers. These concerns are still valid, and human rights NGOs pointed to reports of significant problems at some of these facilities, in particular in Calabria and Lombardy. Delays and a lack of transparency in the monitoring of these centres have also been reported, both by NGOs and UNHCR.", "144. As regards the effects of the end of the emergency period foreseen on 31 December 2012, the Commissioner welcomes the information provided by the Minister of the Interior that the examination of the outstanding asylum applications (estimated at around 7-8,000) will be concluded before that date. He was informed that 30% of applicants having arrived during the emergency period were granted protection. The Commissioner also commends the significant efforts of the Italian authorities to improve the examination procedure applied by Territorial Commissions, within which UNHCR is represented, noting however that the lack of expertise of some members of these commissions is perceived to be a problem.", "145. However, the Commissioner understands that there will be no further support for recognised beneficiaries of international protection beyond this date, the authorities considering that the vocational training they will have received by then will allow them to integrate if they choose to remain in Italy. The Commissioner is concerned about this eventuality, in the light of the serious shortcomings he identified in the integration of refugees and other beneficiaries of international protection (see below). He received no information about the position of persons whose judicial appeals to a negative asylum decision will still be ongoing by that date.", "146. As noted in the 2011 report, an additional feature of the Italian system is the SPRAR ( Sistema di protezione per richiedenti asilo e rifugiati ), a publicly funded network of local authorities and non-profit organisations, which accommodates asylum seekers, refugees or other beneficiaries of international protection. In contrast to CARAs and emergency reception centres, which tend to be big institutions hosting significant numbers of persons at one time, the SPRAR is composed of approximately 150 smaller-scale projects and was seen by the Commissioner ’ s interlocutors to function much better, as it also seeks to provide information, assistance, support and guidance to beneficiaries to facilitate socio-economic inclusion.", "147. However, the capacity of this network, which represents a second level of reception after the frontline reception centres, is extremely limited (approximately 3,000 places) in comparison to the numbers of asylum seekers and refugees in Italy. As a result, asylum seekers are often kept in CARAs for extended periods of time, as opposed to being transferred to a SPRAR project after the completion of identification procedures as originally intended. In some cases this could last up to six months, whereas it has been reported to the Commissioner that asylum seekers received under the emergency reception plan have stayed in reception centres even beyond six months.", "148. The Commissioner observes that the problem of the living conditions of asylum seekers in Italy has been receiving increasing attention in other EU member states, due to the growing number of legal challenges by asylum seekers to their transfer to Italy under the Dublin Regulation. He notes that a series of judgments by different administrative courts in Germany have suspended such transfers, owing notably to the risk of homelessness and a life below minimum subsistence standards. The European Court of Human Rights has also been receiving applications alleging possible violations of Article 3 as a result of Dublin transfers to Italy. ...”", "E. Information provided by the International Organization for Migration in a press briefing note of 28 January 2014", "50. In a press briefing note dated 28 January 2014 the International Organization for Migration stated, inter alia, as follows:", "“ ... Over 45,000 migrants risked their lives in the Mediterranean to reach Italy and Malta in 2013. The arrivals are the highest since 2008, with the exception of 2011 - the year of the Libyan crisis.", "More than 42,900 landed in Italy and 2,800 landed in Malta. Of those who arrived in Italy, over 5,400 were women and 8,300 were minors – some 5,200 of them unaccompanied. Most of the landings took place in Lampedusa (14,700) and along the coast around Syracuse in Sicily (14,300).", "‘ This year migration towards Italy ’ s southern shores tells that there has been an increase in the number of people escaping from war and oppressive regimes, ’ says José Angel Oropeza, Director of IOM ’ s Coordinating Office for the Mediterranean in Rome.", "‘ Most of the migrants came from Syria (11,300), Eritrea (9,800) and Somalia (3,200). All of them were effectively forced to leave their countries and they have the right to receive protection under the Italian law, ’ he notes.", "Landings are continuing in January 2014. On 24 January, 204 migrants were rescued by the Italian navy in the Straits of Sicily and landed in Augusta, close to Syracuse.", "‘ The real emergency in the Mediterranean is represented by those migrants who continue to lose their lives at sea. They disappear and their loss simply remains unknown. The identification of the bodies is still a humanitarian issue to be resolved. Numerous relatives of the victims are still waiting to know if their loved ones are among the bodies collected after October ’ s shipwrecks, ’ says Oropeza.", "Over 20,000 people have died in the past twenty years trying to reach the Italian coast. They include 2,300 in 2011 and around 700 in 2013.", "‘ Migrants and refugees are not pawns on the chessboard of humanity. They are children, women and men who leave or who are forced to leave their homes for various reasons. The reality of migration needs to be approached and managed in a new, equitable and effective manner, ’ said Pope Francis, in his speech for the World Day of Migrants and Refugees celebrated on January 19th by the Holy See.", "‘ We have become too used to seeing these people who are escaping from war, persecution, poverty and hunger as mere statistics. We urgently need to find ways to stop these people from dying at sea when all they are trying to do is to achieve a better life. We need to find ways to make migration safe and to give these people real choices, ’ says Oropeza.", "IOM works in Lampedusa, Sicily, Calabria and Puglia with UNHCR, Save the Children and the Italian Red Cross, as part of the Italian Ministry of the Interior ‑ financed Praesidium project, which aims to help irregular migrants arriving in Italy by sea.”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Federal Asylum Act of 26 June 1998, as in force at the relevant time", "22. The relevant provisions of the Federal Asylum Act of 26 June 1998 read as follows:", "Section 29 Interview on grounds for seeking asylum", "“1. The Office shall interview asylum seekers on their grounds for seeking asylum", "a. in the registration centre; or", "b. within twenty days of the decision to allocate the application to a canton.", "1 bis. If necessary, an interpreter shall be called.", "2. The asylum seekers may be accompanied by a representative and an interpreter of his or her choice who are not themselves asylum seekers.", "3. A record of the interview shall be drawn up. It shall be signed by those present at the interview, with the exception of the representative of the charitable organisations.", "4. The Office may entrust the conduct of the interview to the cantonal authorities themselves if this enables the procedure to be speeded up significantly. Paragraphs 1 to 3 shall apply .”", "Section 34 Decision not to examine in the absence of a risk of persecution in the other country", "“1. If the asylum seeker has arrived from a country where he or she does not risk persecution within the meaning of section 6a(2)(a), the Office shall not examine the application unless there are indications of persecution.", "2. As a general rule, the Office shall not examine an asylum application where the asylum seeker", "a. can return to a safe third country within the meaning of section 6a(2)(b) where he or she has resided previously;", "b. can return to a third country where he or she has resided previously and which, in the case in issue, respects the principle of non-refoulement referred to in section 5(1);", "c. can continue his or her journey to a third country for which he or she already has a visa and where he or she can claim protection;", "d. can travel to a third country which has competence under an international agreement to carry out the asylum and removal procedure;", "e. can continue his or her journey to a third country where he or she has close relatives or other persons with whom he or she has close ties.", "3. Sub-section 2 ( a ), ( b ), ( c ) and ( e ) shall not apply where", "a. close relatives of the asylum seeker or other persons with whom he or she has close ties are living in Switzerland;", "b. the asylum seeker manifestly has refugee status within the meaning of section 3;", "c. the Office possesses information indicating that the third country does not offer effective protection as regards the principle of non-refoulement referred to in section 5(1).”", "Section 42 Residence during the asylum proceedings", "“Any person who lodges an application for asylum in Switzerland may remain in the country until the proceedings have been concluded. ”", "Section 105 Appeals against decisions of the Office", "“Appeals against decisions of the Office shall be governed by the Federal Administrative Court Act of 17 June 2005.”", "Section 107a Dublin procedure", "“Appeals against decisions not to examine asylum applications lodged by asylum seekers who can travel to a country with competence under an international treaty to carry out the asylum and removal procedure shall not have suspensive effect. The asylum seeker concerned may request that suspensive effect be granted while the appeal is pending. The Federal Administrative Court shall give a ruling within five days from the lodging of the request. Where suspensive effect has not been granted within that period, the removal order may be enforced.”", "B. Asylum Ordinance 1 of 11 August 1999 concerning procedure ( Asylum Ordinance 1, OA 1), as in force at the relevant time", "23. The relevant Article of Asylum Ordinance 1 of 11 August 1999 concerning procedure provided:", "Article 29a Assessment of competence under Dublin Regulation ( Section 34 ( 2 )( d ), Asylum Act )", "“ 1 The FMO shall assess competence to deal with an asylum application in accordance with the criteria laid down in Regulation (EC) No 343/2003.", "2 If this assessment shows that another State is responsible for dealing with the asylum application, the FMO shall issue a decision declining to examine the application once the requested State has agreed to take charge of or take back the asylum seeker.", "3 The FMO may also, on humanitarian grounds, deal with the application even where the assessment shows that another State is competent.", "4 The procedure for taking charge of or taking back the asylum seeker by the competent State shall be carried out in accordance with Regulation (EC) No 1560/2003. ”", "C. Federal Court Act of 17 June 2005", "24. The relevant provision of the Federal Court Act of 17 June 2005 reads as follows:", "Section 123 Other grounds", "“ ...", "2 A request for revision may also be made", "...", "a. in civil and public-law cases, if the applicant later discovers relevant facts or conclusive evidence that he or she was unable to rely on in the previous proceedings, with the exception of facts or evidence subsequent to the judgment; ... ”", "D. Federal Administrative Court Act of 17 June 2005", "25. The relevant section of the Federal Administrative Court Act of 17 June 2005 reads as follows:", "Section 45 Principle", "“Sections 121 to 128 of the Federal Court Act of 17 June 2005 shall apply by analogy to the revision of judgments of the Federal Administrative Court.”", "E. Relevant case-law of the Federal Administrative Court", "26. The Federal Administrative Court, which rules at final instance on asylum matters, has set aside deportation orders or subjected them to conditions because the persons concerned fell into the category of “vulnerable persons”. It has done so in particular in the following situations:", "(i) a person deemed vulnerable by virtue of being an unaccompanied young woman (D-4267/2007 of 30 August 2007 );", "(ii) an elderly man with serious and debilitating health problems (E ‑ 6557/2009 of 23 October 2009 );", "(iii) a young man with no social or family network in Somaliland (E ‑ 2157/2011 of 18 November 2011 );", "(iv) a person deemed to be vulnerable because of her particular medical and social needs, in view of her psychological state and the fact that she had a small dependent child (E-188/2012 of 31 January 2012);", "(v) women, and in particular single women and widows, from certain regions or certain countries (E-3568/2012 of 1 May 2013 ).", "27. In three judgments (E-5194/2012 of 15 February 2013, E-1341/2012 of 2 May 2012 and D-1689/2012 of 24 April 2012 ), the Federal Administrative Court recognised that the conditions of detention in Malta, a State belonging to the “ Dublin ” system, could raise issues, in particular for individuals accompanied by a child. In another case (E-1574/2011 of 18 October 2013 ), concerning the removal to Italy of a Somalian family with three young children, it held that Switzerland should apply the “ sovereignty clause ” (see paragraph 3 2 below) provided for by the Dublin Regulation (see paragraph 2 9 below), which allows States to suspend deportation on humanitarian grounds, on account of the conditions in which the applicants would be taken charge of in Italy, which were judged to be inadequate, and the parents ’ state of health.", "III. RELEVANT EUROPEAN UNION LAW", "28. The relevant provisions of the Charter of Fundamental Rights of the European Union provide:", "Article 4 Prohibition of torture and inhuman or degrading treatment or punishment", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 18 Right to asylum", "“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”", "Article 19 Protection in the event of removal, expulsion or extradition", "“1. Collective expulsions are prohibited.", "2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”", "Article 24 The rights of the child", "“1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.", "2. In all actions relating to children, whether taken by public authorities or private institutions, the child ’ s best interests must be a primary consideration.", "3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”", "29. The relevant instruments of European Union secondary legislation were set forth in the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 57-86, ECHR 2011), which refers in particular to :", "– Council Directive 2003/9 /EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers in the Member States (“the Reception Directive”);", "– Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”);", "– Council Directive 2004/83 /EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”);", "– Council Directive 2005/85 /EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in the Member States (the “Procedures Directive”).", "30. Under the Dublin Regulation the Member States must determine, based on a hierarchy of objective criteria (Articles 5 to 14), which Member State bears responsibility for examining an asylum application lodged on their territory. The system is aimed at avoiding multiple applications and provides for each asylum seeker ’ s case to be dealt with by a single Member State ( Article 3 ( 1) ). Hence, where it is established that an asylum seeker has irregularly crossed the border into a Member State having come from a third country, the Member State thus entered is responsible for examining the application for asylum (Article 10 ( 1 ) ).", "31. Where the criteria in the Regulation indicate that another Member State is responsible, that State is requested to take charge of the asylum seeker and examine the application for asylum ( Article 17).", "32. By way of derogation from the principle articulated in Article 3 ( 1 ), a “sovereignty clause ” contained in Article 3 ( 2 ) allows any Member State to examine an application for asylum even if such examination is not its responsibility under the criteria laid down in the Regulation. Furthermore, the “humanitarian clause” contained in Article 15 allows any Member State, even where it is not responsible according to the same criteria, to examine an asylum application on humanitarian grounds based in particular on family or cultural considerations.", "33. In its judgment of 21 December 2011 in the cases N. S. v. Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (CJEU C-411/10 and C-493/10), the Grand Chamber of the Court of Justice of the European Union ( “ the CJEU ” ) held, on the subject of transfers under the Dublin Regulation, that although the Common European Asylum System was based on mutual confidence and a presumption of compliance by other Member States with European Union law and, in particular, with fundamental rights, that presumption was nonetheless rebuttable. The judgment stated, inter alia :", "“78. Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard.", "...", "80. In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter [of Fundamental Rights of the European Union], the Geneva Convention and the ECHR.", "81. It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights.", "82. Nevertheless, it cannot be concluded from the above that any infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member States to comply with the provisions of Regulation No 343/2003.", "83. At issue here is the raison d ’ être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights.", "84. In addition, it would be not be compatible with the aims of Regulation No 343/2003 were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible. Regulation No 343/2003 aims – on the assumption that the fundamental rights of the asylum seeker are observed in the Member State primarily responsible for examining the application – to establish ... a clear and effective method for dealing with an asylum application. In order to achieve that objective, Regulation No 343/2003 provides that responsibility for examining an asylum application lodged in a European Union country rests with a single Member State, which is determined on the basis of objective criteria.", "85. If the mandatory consequence of any infringement of the individual provisions of Directives 2003/9, 2004/83 or 2005/85 by the Member State responsible were that the Member State in which the asylum application was lodged is precluded from transferring the applicant to the first mentioned State, that would add to the criteria for determining the Member State responsible set out in Chapter III of Regulation No 343/2003 another exclusionary criterion according to which minor infringements of the abovementioned directives committed in a certain Member State may exempt that Member State from the obligations provided for under Regulation No 343/2003. Such a result would deprive those obligations of their substance and endanger the realisation of the objective of quickly designating the Member State responsible for examining an asylum claim lodged in the European Union.", "86. By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision.", "...", "104. ... the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable.", "105. In the light of those factors, .. European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.", "106. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘ Member State responsible ’ within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.”", "34. The Dublin Regulation is applicable to Switzerland under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community regarding criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland ( OJ L 53 of 27 February 2008). However, Switzerland is not formally bound by the three Directives referred to at paragraph 29 above.", "35. The Dublin II Regulation was recently replaced by Regulation no. 604/2013 of the European Parliament and of the Council of 26 June 2013 (“the Dublin III Regulation”), which is designed to make the “ Dublin ” system more effective and to strengthen the legal safeguards for persons subjected to the “ Dublin ” procedure. One of its aims is to ensure that families are kept together, and it pays particular attention to the needs of unaccompanied minors and other persons requiring special protection. In particular, Articles 6, 31, 32 and 33 of the Dublin III Regulation read as follows:", "Article 6 Guarantees for minors", "“1. The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation.", "...", "3. In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors:", "(a) family reunification possibilities;", "(b) the minor ’ s well-being and social development;", "(c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking;", "(d) the views of the minor, in accordance with his or her age and maturity.”", "Article 31 Exchange of relevant information before a transfer is carried out", "“ 1. The Member State carrying out the transfer of an applicant or of another person as referred to in Article 18(1)(c) or (d) shall communicate to the Member State responsible such personal data concerning the person to be transferred as is appropriate, relevant and non-excessive for the sole purposes of ensuring that the competent authorities, in accordance with national law in the Member State responsible, are in a position to provide that person with adequate assistance, including the provision of immediate health care required in order to protect his or her vital interests, and to ensure continuity in the protection and rights afforded by this Regulation and by other relevant asylum legal instruments. Those data shall be communicated to the Member State responsible within a reasonable period of time before a transfer is carried out, in order to ensure that its competent authorities in accordance with national law have sufficient time to take the necessary measures.", "2. The transferring Member State shall, in so far as such information is available to the competent authority in accordance with national law, transmit to the Member State responsible any information that is essential in order to safeguard the rights and immediate special needs of the person to be transferred, and in particular:", "(a) any immediate measures which the Member State responsible is required to take in order to ensure that the special needs of the person to be transferred are adequately addressed, including any immediate health care that may be required;", "(b) contact details of family members, relatives or any other family relations in the receiving Member State, where applicable;", "(c) in the case of minors, information on their education;", "(d) an assessment of the age of an applicant.", "3. The exchange of information under this Article shall only take place between the authorities notified to the Commission in accordance with Article 35 of this Regulation using the ‘ DubliNet ’ electronic communication network set-up under Article 18 of Regulation (EC) No 1560/2003. The information exchanged shall only be used for the purposes set out in paragraph 1 of this Article and shall not be further processed.", "4. With a view to facilitating the exchange of information between Member States, the Commission shall, by means of implementing acts, draw up a standard form for the transfer of the data required pursuant to this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2).", "5. The rules laid down in Article 34(8) to (12) shall apply to the exchange of information pursuant to this Article.”", "Article 32 Exchange of health data before a transfer is carried out", "“1. For the sole purpose of the provision of medical care or treatment, in particular concerning disabled persons, elderly people, pregnant women, minors and persons who have been subject to torture, rape or other serious forms of psychological, physical and sexual violence, the transferring Member State shall, in so far as it is available to the competent authority in accordance with national law, transmit to the Member State responsible information on any special needs of the person to be transferred, which in specific cases may include information on that person ’ s physical or mental health. That information shall be transferred in a common health certificate with the necessary documents attached. The Member State responsible shall ensure that those special needs are adequately addressed, including in particular any essential medical care that may be required.", "The Commission shall, by means of implementing acts, draw up the common health certificate. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2).", "2. The transferring Member State shall only transmit the information referred to in paragraph 1 to the Member State responsible after having obtained the explicit consent of the applicant and/or of his or her representative or, if the applicant is physically or legally incapable of giving his or her consent, when such transmission is necessary to protect the vital interests of the applicant or of another person. The lack of consent, including a refusal to consent, shall not constitute an obstacle to the transfer.", "3. The processing of personal health data referred to in paragraph 1 shall only be carried out by a health professional who is subject, under national law or rules established by national competent bodies, to the obligation of professional secrecy or by another person subject to an equivalent obligation of professional secrecy.", "4. The exchange of information under this Article shall only take place between the health professionals or other persons referred to in paragraph 3. The information exchanged shall only be used for the purposes set out in paragraph 1 and shall not be further processed.", "5. The Commission shall, by means of implementing acts, adopt uniform conditions and practical arrangements for exchanging the information referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2).", "6. The rules laid down in Article 34(8) to (12) shall apply to the exchange of information pursuant to this Article.”", "Article 33 A mechanism for early warning, preparedness and crisis management", "“1. Where, on the basis of, in particular, the information gathered by EASO pursuant to Regulation (EU) No 439/2010, the Commission establishes that the application of this Regulation may be jeopardised due either to a substantiated risk of particular pressure being placed on a Member State ’ s asylum system and/or to problems in the functioning of the asylum system of a Member State, it shall, in cooperation with EASO, make recommendations to that Member State, inviting it to draw up a preventive action plan.", "The Member State concerned shall inform the Council and the Commission whether it intends to present a preventive action plan in order to overcome the pressure and/or problems in the functioning of its asylum system whilst ensuring the protection of the fundamental rights of applicants for international protection.", "A Member State may, at its own discretion and initiative, draw up a preventive action plan and subsequent revisions thereof. When drawing up a preventive action plan, the Member State may call for the assistance of the Commission, other Member States, EASO and other relevant Union agencies.", "2. Where a preventive action plan is drawn up, the Member State concerned shall submit it and shall regularly report on its implementation to the Council and to the Commission. The Commission shall subsequently inform the European Parliament of the key elements of the preventive action plan. The Commission shall submit reports on its implementation to the Council and transmit reports on its implementation to the European Parliament.", "The Member State concerned shall take all appropriate measures to deal with the situation of particular pressure on its asylum system or to ensure that the deficiencies identified are addressed before the situation deteriorates. Where the preventive action plan includes measures aimed at addressing particular pressure on a Member State ’ s asylum system which may jeopardise the application of this Regulation, the Commission shall seek the advice of EASO before reporting to the European Parliament and to the Council.", "3. Where the Commission establishes, on the basis of EASO ’ s analysis, that the implementation of the preventive action plan has not remedied the deficiencies identified or where there is a serious risk that the asylum situation in the Member State concerned develops into a crisis which is unlikely to be remedied by a preventive action plan, the Commission, in cooperation with EASO as applicable, may request the Member State concerned to draw up a crisis management action plan and, where necessary, revisions thereof. The crisis management action plan shall ensure, throughout the entire process, compliance with the asylum acquis of the Union, in particular with the fundamental rights of applicants for international protection.", "Following the request to draw up a crisis management action plan, the Member State concerned shall, in cooperation with the Commission and EASO, do so promptly, and at the latest within three months of the request.", "The Member State concerned shall submit its crisis management action plan and shall report, at least every three months, on its implementation to the Commission and other relevant stakeholders, such as EASO, as appropriate.", "The Commission shall inform the European Parliament and the Council of the crisis management action plan, possible revisions and the implementation thereof. In those reports, the Member State concerned shall report on data to monitor compliance with the crisis management action plan, such as the length of the procedure, the detention conditions and the reception capacity in relation to the inflow of applicants.", "4. Throughout the entire process for early warning, preparedness and crisis management established in this Article, the Council shall closely monitor the situation and may request further information and provide political guidance, in particular as regards the urgency and severity of the situation and thus the need for a Member State to draw up either a preventive action plan or, if necessary, a crisis management action plan. The European Parliament and the Council may, throughout the entire process, discuss and provide guidance on any solidarity measures as they deem appropriate.”", "36. The Dublin III Regulation entered into force on 1 January 2014 and was passed into law by the Swiss Federal Council on 7 March 2014.", "V. RELEVANT COMPARATIVE LAW", "A. Relevant German case-law", "51. The Court notes that several German administrative courts, for instance the Stuttgart Administrative Court (on 4 February 2013), the Gelsenkirchen Administrative Court (on 17 May and 11 April 2013) and the Frankfurt am Main Administrative Court (on 9 July 2013) have ruled against the return of asylum seekers to Italy under the Dublin Regulation, irrespective of whether they belonged to categories deemed to be vulnerable. In its judgment of 9 July 2013 ( no. 7 K 560/11.F.A) in particular, the Frankfurt Administrative Court held that the shortage of places in Italian reception centres and the living conditions there would be liable to entail a violation of Article 3 of the Convention if a 24-year-old Afghan asylum seeker were sent back from Germany to Italy. In its judgment the Administrative Court held as follows:", "( Translation by the Registry )", "“ 25. The court is convinced that systemic deficiencies exist in the reception conditions for asylum seekers in Italy which constitute substantial grounds for believing that the applicant, if he were to be transferred to that country under the Dublin Regulation, would run a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights (see the ECJ judgment of 21 December 2011 – C-411/10, N. S. v Secretary of State for the Home Department and Others, EuGRZ 2012 24, § 94).", "...", "28. The reception and accommodation system in Italy is very confusing and the Italian authorities themselves seem to lack a full overview of its capacity and effectiveness (see the December 2012 expert report by Borderline-europe e.V. to the Braunschweig Administrative Court, p. 37). The Italian Government have admitted these shortcomings even before the European Court of Human Rights ( see Mohammed Hussein and Others, cited above, § 45, second sub-paragraph ).", "...", "49. The court does not possess any reliable information or reports capable of refuting, or even casting doubt on, the above finding. First of all, according to the case-law of both the European Court of Human Rights and the European Court of Justice, the rules on responsibility under the Dublin Regulation do not cease to apply only if it is established with certainty that the asylum seeker in question will be exposed to inhuman or degrading treatment if he is transferred to Italy. The facts do not support such a conclusion. Italy certainly has a number of acceptable reception facilities for asylum seekers and it can be assumed on the basis of the reports that at least one asylum seeker in two can be accommodated in accordance with the requirements of the Reception Directive. However, in view of the case-law cited above, it is sufficient for the person concerned to run a real risk of being subjected to inhuman or degrading treatment. Given that the chances of receiving accommodation that conforms to the above-mentioned requirements are at best 50%, it must in any event be concluded that such a risk exists. ... ”", "B. Relevant case-law of the Supreme Court of the United Kingdom", "52. In a judgment of 19 February 2014 ([2014] UKSC 12), the Supreme Court of the United Kingdom held that, irrespective of whether “ systemic deficiencies ” existed in the reception system for asylum seekers in Italy, the Court of Appeal should examine on a case-by-case basis the risk that appellants would be subjected to treatment contrary to the Convention if they were returned to Italy. Lord Kerr, with whom Lord Neuberger (President), Lord Carnwath, Lord Toulson and Lord Hodge agreed, stated as follows:", "“ ...", "42. Violation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings. It is self-evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system. If this requirement is grafted on to the presumption it will unquestionably make its rebuttal more difficult. And it means that those who would suffer breach of their article 3 rights other than as a result of a systemic deficiency in the procedure and reception conditions provided for the asylum seeker will be unable to avail of those rights in order to prevent their enforced return to a listed country where such violation would occur. That this should be the result of the decision of CJEU in NS [ N. S. v Secretary of State for the Home Department and M. E., A. S. M., M. T., K. P., E. H. v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (CJEU C-411/10 and C-493/10)] would be, as I have said, remarkable.", "...", "46. In paras 76-80 of its judgment, CJEU sets out the background to the need for mutual confidence among member states about the obligation of those states that participate in the Common European Asylum System to comply with fundamental rights including those based on the Convention relating to the Status of Refugees (the 1951 Convention) ((1951) Cmd 9171) and its 1967 Protocol ((1967) Cmnd 3906). In these paras the court also dealt with the assumption that needed to be made that the states will be prepared to fully comply. These twin considerations (the importance of the obligations and the assumption that they will be fulfilled) underpin the system – a system designed to ‘ avoid blockages ... as a result of the obligation on state authorities to examine multiple claims by the same applicant, and ... to increase legal certainty with regard to the determination of the state responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective ... to speed up the handling of claims in the interests both of asylum seekers and the participating member states. ’ – para 79.", "...", "48. Before examining what CJEU said on this issue, it can be observed that an exclusionary rule based only on systemic failures would be arbitrary both in conception and in practice. There is nothing intrinsically significant about a systemic failure which marks it out as one where the violation of fundamental rights is more grievous or more deserving of protection. And, as a matter of practical experience, gross violations of article 3 rights can occur without there being any systemic failure whatsoever.", "49. One must be careful, therefore, to determine whether CJEU referred to systemic failures in order merely to distinguish these from trivial infringements of the various European asylum directives or whether it consciously decided to create a new and difficult-to-fulfil pre-condition for asylum-seekers who seek to have recourse to their article 3 rights to prevent their return to a country where it can be shown that those rights will be violated. For there can be little doubt that such a condition would indeed be difficult to fulfil. Some of the facts in the present cases exemplify the truth of that proposition. ...", "...", "The correct approach", "58. I consider that the Court of Appeal ’ s conclusion that only systemic deficiencies in the listed country ’ s asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in Soering v United Kingdom (1989) 11 EHRR 439. The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR.", "...", "63. Where ... it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted.", "64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin), at para 42(i) as ‘ a significant evidential presumption ’ that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed.", "The first instance decisions", "65. In his first judgment in EM [2011] EWHC 3012 Admin, delivered on 18 November 2011, Kenneth Parker J referred approvingly to the statement in R v Home Secretary Ex p Adan [1999] 3 WLR 1274 to the effect that a system which will, if it operates as it usually does, provide the required standard protection for the asylum seeker will not be found to be deficient because of aberrations. He then said this at para 12:", "‘ Following KRS, the existence of such a system is to be presumed. It is for the claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory. (original emphasis [KRS judgment] ) ’", "66. ‘ Systematic ’ is defined as ‘ arranged or conducted according to a system, plan, or organised method ’ whereas the definition of the word ‘ systemic ’ is ‘ of or pertaining to a system ’. Taken in context, I believe that Kenneth Parker J ’ s statement that it had to be shown that there was a systematic and significant failure to comply with international obligations meant that the omissions were on a widespread and substantial scale. His approach is rather different from that of the Court of Appeal, therefore, in that it does not appear to suggest that it needed to be shown that there were inherent deficiencies in the system, merely that there were substantial operational problems. This approximates (at least) to what I consider is the true import of the decision in NS. On one view, therefore, Kenneth Parker J ’ s decision is in keeping with the correct test and his decision should stand.", "67. For two reasons, however, I have decided that this would not be the correct disposal. In the first place the Court of Appeal took a different view from that of Kenneth Parker J as to the effect of the evidence. As I pointed out, (in paras 26 and 31 above) the court indicated that, but for the effect of NS, it would have been bound to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk to exposing the appellants to inhuman or degrading treatment contrary to article 3 of ECHR. Secondly, there is an issue as to whether Kenneth Parker J ’ s approach accords precisely with that in Soering. In that case ECtHR had said that an extraditing contracting state will incur liability under the Convention if it takes action ‘ which has as a direct consequence the exposure of an individual to proscribed ill-treatment ’. In order to rebut the presumption a claimant will have to produce sufficient evidence to show that it would be unsafe for the court to rely on it. On proper analysis, it may well be that Kenneth Parker J was not suggesting that there was a requirement that a person subject to an enforced return must show that his or her risk of suffering ill-treatment contrary to article 3 of EHCR was the result of a significant and systematic omission of the receiving state to comply with its international obligations. It seems to me, however, that, to impose such an obligation in every instance would go beyond the Soering requirement. Since there was no reference to Soering in Kenneth Parker J ’ s judgment and in light of this court ’ s re ‑ assertion of the test articulated in that case, I consider that it would be sensible to have the matter revisited.", "68. ... Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill-treatment if there is an enforced return.", "Disposal", "...", "70. That examination can only be conducted properly if there is an assessment of the situation in the receiving country. In appropriate circumstances, this calls for a rigorous assessment – see Chahal v United Kingdom (1997) 23 EHRR 413 at para 96 and Vilvarajah v United Kingdom (1991) 14 EHRR 248 at para 108. The court must examine the foreseeable consequences of sending a claimant to the receiving country bearing in mind both the general situation there and the claimant ’ s personal circumstances, including his or her previous experience – see Vilvarajah at para 108 and Saadi v Italy (2009) 49 EHRR 30 at para 130. This approach has been followed by decisions of ECtHR subsequent to MSS – Hussein v Netherlands Application no. 27725/10 at paras 69 and 78 and Daytbegova v Austria Application no. 6198/12 at paras 61 and 67-69. ”", "THE LAW", "53. Relying on Article 3 of the Convention, the applicants submitted that if they were returned to Italy “in the absence of individual guarantees concerning their care”, they would be subjected to inhuman and degrading treatment linked to the existence of “ systemic deficiencies ” in the reception arrangements for asylum seekers in Italy. Article 3 provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "54. Under Article 8 of the Convention the applicants submitted that their return to Italy, where they had no ties and did not speak the language, would be in breach of their right to respect for their family life. Article 8 reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "55. The Court, as master of the characterisation to be given in law to the facts of the case (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Halil Yüksel Akıncı v. Turkey, no. 39125/04, § 54, 11 December 2012 ), considers it more appropriate to examine the complaint concerning the applicants ’ reception conditions in Italy solely from the standpoint of Article 3 of the Convention.", "56. Relying on Article 13 of the Convention taken in conjunction with Article 3, the applicants complained that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family in the procedure for their return to Italy, which they considered to be unduly formalistic and automatic, not to say arbitrary. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "A. The parties ’ submissions", "1. The applicants", "57. The applicants maintained that the reception arrangements for asylum seekers in Italy were beset by systemic deficiencies, relating to: difficulties in gaining access to the reception facilities owing to the slowness of the identification procedure; the accommodation capacity of those facilities, which they regarded in any case as insufficient; and the inadequate living conditions in the available facilities. In support of their arguments, the applicants referred to the findings of the following organisations: the Swiss Refugee Council (SFH-OSAR), Reception conditions in Italy: Report on the current situation of asylum seekers and beneficiaries of protection, in particular Dublin returnees, Berne, October 2013 (“the SFH-OSAR report”); PRO ASYL, Maria Bethke, Dominik Bender, Zur Situation von Flüchtlingen in Italien, 28 February 2011, www.proasyl.de (“the PRO ASYL report”); Jesuit Refugee Service-Europe (JRS), Dublin II info country sheets. Country: Italy, November 2011 (“the JRS report”); Office of the United Nations High Commissioner for Refugees, UNHCR Recommendations on important aspects of refugee protection in Italy, July 2012 (“the 2012 UNHCR Recommendations”); report by Nils Muižnieks, Council of Europe Commissioner for Human Rights, published on 18 September 2012 following his visit to Italy from 3 to 6 July 2012 (“the Human Rights Commissioner ’ s 2012 report); and the European network for technical cooperation on the application of the Dublin II regulation, Dublin II Regulation National Report on Italy, 19 December 2012 (“the Dublin II network 2012 report”).", "( a) Slowness of the identification procedure", "58. The applicants submitted that asylum seekers ’ entitlement to accommodation in the CARAs or in the facilities belonging to the SPRAR network ( Sistema di protezione per richiedenti asilo e rifugiati ) “[took] effect only after” formal registration by the police of the asylum application ( verbalizzazione ). They contended that, in practice, there was sometimes a time lag of several weeks or even several months between the time when the persons concerned reported to the immigration department of the competent police headquarters and the registration of the application. In the meantime, the persons concerned were homeless. In the applicants ’ submission, a formal finding to that effect had been made by the Frankfurt Administrative Court in a judgment of 9 July 2013 (see paragraph 51 above), on the basis of information supplied by the SFH-OSAR and by the organisation Borderline-europe. Hence, in their view, there were shortcomings in the implementation of the administrative procedure laid down by law. They acknowledged, however, that the situation was somewhat different with regard to asylum seekers returned to Italy under the Dublin Regulation, who in theory had immediate access not just to the CARAs and the facilities belonging to the SPRAR, but also to the facilities provided by the municipal authorities and those set up under the projects financed by the 2008-2013 European Refugee Fund (ERF).", "( b) Capacity of the reception facilities", "59. The applicants acknowledged that the facilities financed by the ERF were intended for persons transferred under the Dublin Regulation, but submitted that the number of places available was insufficient in relation to the number of transferees. Citing the SFH-OSAR report, they contended that in 2012 there had been only 220 places available in total for 3,551 transferees, of whom 2,981 had come from Switzerland.", "60. As to availability in the CARAs and in the facilities belonging to the SPRAR, the applicants maintained that it was difficult for “ Dublin ” returnees to gain access to those facilities.", "61. With regard to the facilities belonging to the SPRAR network, the applicants – again citing the SFH-OSAR report – maintained that only 5% of the persons housed there in 2012 had been transferred under the Dublin Regulation and that, of those, only 6.5% had come from Switzerland, although transfers from that country accounted for 85% of the total number of “ Dublin ” transfers to Italy. The applicants inferred from this that large numbers of people returned under the “ Dublin ” procedure were left without accommodation. They added that, according to the SFH-OSAR, there had been numerous cases in which families transferred to Italy had not been housed together.", "62. The applicants also supplied data concerning the accommodation of asylum seekers in general, irrespective of whether or not they were “ Dublin ” returnees. In that connection they submitted that 34,115 asylum applications had been made in Italy in 2011 and 15,715 in 2012, with a rise in the figures in 2013. According to the SFH-OSAR report there had been 64,000 refugees living in Italy in 2012. According to the same source, there had been only 8,000 places in the CARAs in 2012, with waiting lists so long that the majority of applicants had no realistic prospect of gaining access.", "63. As to the facilities belonging to the SPRAR, the SFH-OSAR report stated that the number of places was 4,800 and that 5,000 people were on the waiting list. The same report noted that, according to two other organisations (Caritas and the JRS), only 6% of the persons housed in the SPRAR facilities – where, moreover, the maximum stay was six months – managed to find work and integrate professionally into Italian society.", "64. With regard to the accommodation centres run by the municipal authorities, which were open to any person suffering hardship and not just to asylum seekers, the number of places also fell far short of what was needed. According to the SFH-OSAR report there were 1,300 places in Rome, with a waiting list of 1,000 and an average waiting time of three months. In Milan, there were only 400 places and families were systematically split up. The applicants added that, while it was true that some municipal authorities made social housing available to families, the number of places was clearly insufficient and the waiting list was around ten years. The accommodation offered by religious institutions and NGOs was also insufficient to meet demand. Lastly, asylum seekers had no access to private accommodation, as the economic situation in Italy, with rising unemployment, meant that they were unable to find work.", "65. In conclusion, the applicants argued that, owing to the shortage of places in the various types of reception facilities, large numbers of asylum seekers, including families with small children, were forced to live in insalubrious squats and other makeshift accommodation, or simply on the streets. By way of example, according to the SFH-OSAR report there were between 1,200 and 1,700 people housed in precarious conditions in Rome, and between 2,300 and 2,800 people sleeping on the streets in Italy as a whole.", "( c) Living conditions in the available facilities", "66. The applicants contended that conditions in the CARAs in particular were contrary to the provisions of the Reception Directive. They referred to the findings of the organisation Borderline-europe, according to which, in the CARAs in Trapani (Sicily), five or six people shared a space of 15 sq m. and were obliged to sleep on mattresses on the floor. These centres also had inadequate sanitation facilities and lacked privacy. The latter was even a recurring problem in the CARAs and had particularly negative consequences for children, especially when the family unit was broken up as happened systematically in Milan, for instance. In the CARA in Mineo (Sicily), the occupants reportedly received no spending money, the sanitation facilities were poor, there was inadequate access to health care and criminal activity and prostitution were rife.", "67. In their observations the applicants referred in particular to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report. They also attached considerable importance to the fact that the Frankfurt Administrative Court, in its judgment of 9 July 2013 (see paragraph 51 above), had held that 50% of asylum seekers risked being subjected to ill-treatment if returned to Italy, owing to reception conditions that did not comply with the European directives.", "68. Lastly, the applicants submitted that the Swiss Government had not produced any document certifying that attempts had been made to find a specific solution for taking charge of the applicants. According to them, no request for minimum guarantees appeared to have been addressed to the Italian authorities, who had not provided any assurances that the applicants would be housed in decent conditions and not separated. They also submitted that the living conditions in the CARA in Bari, where they had spent two days during their stay in Italy, had been unacceptable, particularly owing to the lack of privacy and the violence this caused.", "2. The Government", "( a) Slowness of the identification procedure", "69. The Government did not comment on the difficulties referred to by the applicants with regard to the slowness of the identification procedure.", "( b) Capacity of the reception facilities", "70. As to the capacity of the reception facilities, the Government submitted that 235 places were reserved in the ERF-financed facilities for asylum seekers facing return under the Dublin Regulation. The Government further stated that the capacity of the SPRAR network would be increased to 16,000 places over the period 2014-2016. They referred mainly to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report, and to the Court ’ s findings in Mohammed Hussein, cited above, and the follow-up decisions in the same vein ( Daytbegova and Magomedova v. Austria (dec.), no. 6198/12, 4 June 2013; Abubeker v. Austria and Italy (dec.), no. 73874/11, 18 June 2013; Halimi v. Austria and Italy (dec.), no. 53852/11, 18 June 2013; Miruts Hagos v. the Netherlands and Italy (dec.), no. 9053/10, 27 August 2013; Mohammed Hassan and Others v. the Netherlands and Italy (dec.), no. 40524/10, 27 August 2013; and Hussein Diirshi and Others v. the Netherlands and Italy (dec.), no. 2314/10, 10 September 2013).", "( c) Living conditions in the available facilities", "71. With regard to living conditions in the available facilities, the Government referred again to the 2012 UNHCR Recommendations and the Human Rights Commissioner ’ s 2012 report, submitting that there were no grounds for finding that the Reception Directive was being systematically violated in Italy. They added that they were unaware of any “ Dublin ” States which refused returns to Italy as a general rule and that neither UNHCR nor the Human Rights Commissioner had sought leave to intervene in the present proceedings, unlike in the case of M.S.S.", "72. With reference to the applicants ’ specific case the Government stated that on 22 November 2011 the FMO had submitted a request to the Italian authorities to take charge of the applicants in accordance with Article 17 of the Dublin Regulation. No explicit reply had been received within the two months provided for by Article 18(1) of the Regulation; in the Government ’ s submission, this was regarded as implicit acceptance and had been customary at the time between Switzerland and Italy.", "73. The practice had since changed and Italy now replied explicitly to requests to take charge emanating from Switzerland.", "74. In general, a transfer under the “ Dublin ” procedure was a measure prepared a long time in advance and not one used to deal with an emergency situation, so that it was possible to take account of the situation of persons requiring special protection, such as families with young children, before their arrival on Italian territory. Cooperation with the Italian authorities in this area worked well, owing in particular to the presence of a Swiss liaison officer in the Dublin department of the Italian Ministry of the Interior. Since the beginning of 2013 the Italian authorities had adopted a new practice consisting of indicating, at the same time as agreeing to take charge of the asylum seeker, the airport and reception facility of destination.", "75. In any event, at the hearing of 12 February 2014 the Government stated that they had been informed by the Italian authorities that, if returned to Italy, the applicants would be accommodated in an ERF-financed centre in Bologna. They did not provide any further details concerning the arrangements for transfer and the physical reception conditions envisaged by the Italian authorities.", "3. Observations of the Italian, Dutch, Swedish, Norwegian and United Kingdom Governments and of the organisations Defence for Children, the AIRE Centre, ECRE and Amnesty International, third ‑ party interveners", "( a) Slowness of the identification procedure", "76. According to the observations of the Italian Government, under Article 20 of Legislative Decree no. 25/2008 of 28 January 2008, individuals seeking international protection could be provided with accommodation in the CARAs for the time necessary for their identification, that is to say, prior to the registration of their asylum application (for a period not exceeding twenty days), and while the territorial commission examined their application (for a period not exceeding thirty-five days). If their application was granted they had access to the SPRAR centres. That being said, Article 6 of Legislative Decree no. 140/2005 of 30 May 2005 provided that, where it had been established that there was a lack of space in the SPRAR centres, asylum seekers who could demonstrate that they lacked any means of subsistence were entitled to remain in the CARAs. The Italian Government did not provide information on any cases where asylum seekers had been forced to wait several weeks or even months before gaining access to a CARA, either before or after they had been identified. They submitted, however, that the average time taken to examine asylum applications had been 72 days in 2012 and 92 days in 2013. The length of time taken was due to the fact that, since each asylum seeker ’ s interview with the territorial commission had to last at least one hour, each of the ten commissions could not, in practice, process more than ten applications a day. A law that had entered into force on 4 September 2013 (no. 97/2013) had enabled some additional sections to be created within the territorial commissions in order to speed up the examination of asylum applications.", "77. In common with the Swiss Government, the remaining third-party interveners did not comment on the practical aspects of this matter.", "(b) Capacity of the reception facilities", "78. In their observations the Italian Government explained that, by a decree of 17 September 2013, the Ministry of the Interior had decided to double the total capacity of the SPRAR network to 16,000 places by the end of the period 2014-2016. The network currently comprised 9,630 places, of which 1,230 had been created since the enactment of the decree. In addition, the prefects of the Sicily region had been requested in a circular of 7 October 2013 to identify additional accommodation facilities for refugees, including in the private sector. To date, approximately forty such facilities had been identified, offering a total of 1,834 places, and a further six were ready to be brought into service in the event of an increase in the influx of refugees. In the first six months of 2013, 14,184 asylum applications had been made (situation at 15 June 2013). Lastly, at the hearing of 12 February 2014, the representative of the Italian Government described the surge in the number of asylum requests registered over the previous two years as “a catastrophic situation”.", "79. The Dutch, Swedish, Norwegian and United Kingdom Governments endorsed in substance the position of the Swiss Government. Like the latter they observed that, in contrast to the case of Greece, UNHCR had not called for transfers of certain vulnerable groups to Italy to be halted.", "80. The Swedish Government observed that Italy and the European Asylum Support Office (EASO) had signed a Special Support Plan on 4 June 2013 aimed at improving reception conditions for asylum seekers. Furthermore, “ Dublin ” returns to Italy were the subject of a systematic exchange of information between the authorities of the two countries, which was particularly thorough in the case of vulnerable persons and especially unaccompanied children.", "81. The United Kingdom Government submitted that the reports to which the applicants referred in their assessment of the situation on the ground, and in particular the PRO ASYL report, often failed to make a distinction between “asylum seekers”, “recognised refugees” and “failed asylum seekers”. This distinction was critical, however, since the Reception Directive applied only to asylum seekers, whose status was inherently temporary, while the Qualification Directive, which applied to refugees, placed the latter on an equal footing with nationals in terms of access to employment, education and social welfare. The data contained in those reports therefore gave a false picture. By way of example, the United Kingdom Government pointed out that the SFH-OSAR report criticised conditions in the Tor Marancia shelter in Rome, while acknowledging that the shelter accommodated Afghan men with recognised refugee status.", "82. The organisation Defence for Children shared the applicants ’ view that the capacity to accommodate asylum seekers in Italy was clearly insufficient, arguing that this had particularly serious consequences for children, some of whom were forced to live in squats and other insalubrious accommodation. The NGO referred to the information published in the SFH-OSAR report.", "(c) Living conditions in the available facilities", "83. Like the applicants, the organisation Defence for Children, citing the SFH-OSAR report, contended that several families sent back to Italy under the Dublin Regulation had been separated on their arrival in the reception facilities, particularly in the CARAs. In Milan, this practice was even systematic. In their observations, Defence for Children stressed the concept of the “best interests of the child” as defined by the Convention on the Rights of the Child of 20 November 1989, and submitted that in “ Dublin ” return cases the social and emotional development of children should be a decisive factor in assessing their “ best interests ”. The NGO referred in particular to Article 6 of the Dublin III Regulation, which came into force on 1 January 2014 (see paragraph 3 5 above).", "84. Defence for Children stressed, in particular, the importance attached by the United Nations Committee on the Rights of the Child to protecting the family environment, and referred to the Court ’ s case-law on the detention of children, particularly migrants, with regard to living conditions. In conclusion, they requested the Court to prohibit the return of children to Italy on account of the precarious conditions in which asylum seekers were housed there.", "85. The AIRE Centre, ECRE and Amnesty International also referred to the concept of the “child ’ s best interests” and submitted that children should only be transferred to other Member States of the European Union if this was in their best interests.", "86. The Italian Government confirmed at the hearing of 12 February 2014 that there had been some episodes of violence at the CARA in Bari shortly before the applicants ’ arrival. However, they denied that families of asylum seekers were systematically split up; this occurred only in a few cases and for very short periods during the first few days when asylum seekers were being taken charge of and identified. In their observations they also stated that asylum seekers belonging to a category considered by the Italian authorities to be vulnerable – which was the case of the applicants, as a family with children – were taken charge of within the SPRAR system, which guaranteed them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation.", "B. The Court ’ s assessment", "87. The Court notes at the outset that, according to the Swiss Government, if they were returned to Italy the applicants would be accommodated in Bologna in a facility belonging to the network financed by the ERF (see paragraph 7 5 above). Even assuming that this factor raises an issue under Article 37 § 1 ( b) or ( c) of the Convention, the Court considers that it should be included in its examination of the merits of the application (see paragraph 121 below).", "1. Switzerland ’ s responsibility under the Convention", "88. The Court notes that, in the present case, Switzerland ’ s responsibility under Article 3 of the Convention is not disputed.", "Nevertheless, the Court considers it relevant to observe that, in the case of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, § 152, ECHR 2005 ‑ VI), it held that the Convention did not prohibit Contracting Parties from transferring sovereign power to an international organisation in order to pursue cooperation in certain fields of activity. The States nevertheless remain responsible under the Convention for all actions and omissions of their bodies under their domestic law or under their international legal obligations (ibid., § 153). State action taken in compliance with such legal obligations is justified as long as the relevant organisation is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the Convention provides. However, a State will be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it has exercised State discretion (ibid., §§ 155-57; see also Michaud v. France, no. 12323/11, §§ 102-04, ECHR 2012 ).", "It is true that, unlike Ireland in the Bosphorus case, Switzerland is not a Member State of the European Union. However, under the terms of the association agreement of 26 October 2004 between the Swiss Confederation and the European Community, Switzerland is bound by the Dublin Regulation (see paragraphs 34 to 36 above) and participates in the system established by that instrument.", "89. The Court notes that Article 3(2) of the Dublin Regulation provides that, by derogation from the general rule set forth in Article 3(1), each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called “sovereignty” clause (see paragraph 3 2 above). In such a case the State concerned becomes the Member State responsible for examining the asylum application for the purposes of the Regulation and takes on the obligations associated with that responsibility (see M.S.S., cited above, § 339). By virtue of the association agreement, this mechanism applies also to Switzerland.", "90. The Court concludes from this that the Swiss authorities could, under the Dublin Regulation, refrain from transferring the applicants to Italy if they considered that the receiving country was not fulfilling its obligations under the Convention. Consequently, it considers that the decision to return the applicants to Italy does not strictly fall within Switzerland ’ s international legal obligations in the context of the system established by the Dublin Regulation. Accordingly, the presumption of equivalent protection does not apply in this case ( see, mutatis mutandis, M.S.S., cited above, § 340).", "91. Switzerland must therefore be considered to bear responsibility under Article 3 of the Convention in the present case.", "2. Admissibility", "92. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It therefore declares it admissible.", "3. Merits", "( a) Recapitulation of general principles", "93. The Court reiterates that according to its well-established case-law the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country ( see Saadi v. Italy [GC], no. 37201/06, § 152, ECHR 2008; M.S.S., cited above, § 365; Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 103, Series A no. 125; H.L.R. v. France, 29 April 1997, § 34, Reports 1997-III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000 ‑ VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, ECHR 2007 ‑ I).", "94. The Court has held on numerous occasions that to fall within the scope of Article 3 the ill- treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, inter alia, Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI, and M.S.S., cited above, § 219).", "95. The Court has also ruled that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home ( see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001 ‑ I). Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005, and M.S.S., cited above, § 249).", "96. In the M.S.S. judgment (§ 250), the Court nevertheless took the view that what was at issue in that case could not be considered in those terms. Unlike in the Müslim case ( cited above, §§ 83 and 84), the obligation to provide accommodation and decent material conditions to impoverished asylum seekers had entered into positive law and the Greek authorities were bound to comply with their own legislation transposing European Union law, namely the Reception Directive. What the applicant held against the Greek authorities in that case was that, because of their deliberate actions or omissions, it had been impossible in practice for him to avail himself of those rights and provide for his essential needs.", "97. In the same judgment (§ 251), the Court attached considerable importance to the applicant ’ s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. It noted the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the European Union Reception Directive.", "98. Still in M.S.S. (§§ 252 and 253), having to determine whether a situation of extreme material poverty could raise an issue under Article 3, the Court reiterated that it had not excluded “the possibility that the responsibility of the State [might] be engaged [under Article 3] in respect of treatment where an applicant, who was wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity” (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009).", "99. With more specific reference to minors, the Court has established that it is important to bear in mind that the child ’ s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant ( see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 55, ECHR 2006 ‑ XI, and Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012 ). Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents ( see to this effect Popov, cited above, § 91).", "( b) Application of these principles to the present case", "100. The applicants argued in substance that if they were returned to Italy “ in the absence of individual guarantees concerning their care” they would be subjected to inhuman and degrading treatment linked to the existence of “systemic deficiencies” in the reception arrangements for asylum seekers.", "101. In order to examine this complaint the Court considers it necessary to follow an approach similar to that which it adopted in the M.S.S. judgment, cited above, in which it examined the applicant ’ s individual situation in the light of the overall situation prevailing in Greece at the relevant time.", "102. It first reiterates its well-established case-law according to which the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3 where “substantial grounds have been shown for believing” that the person concerned faces a “real risk” of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country ( see paragraph 9 3 above ).", "103. It is also clear from the M.S.S. judgment that the presumption that a State participating in the “ Dublin ” system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of “ systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State ” ( see paragraph 3 3 above ).", "104. In the case of “ Dublin ” returns, the presumption that a Contracting State which is also the “ receiving ” country will comply with Article 3 of the Convention can therefore validly be rebutted where “substantial grounds have been shown for believing” that the person whose return is being ordered faces a “real risk” of being subjected to treatment contrary to that provision in the receiving country.", "The source of the risk does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person ’ s removal. It does not exempt that State from carrying out a thorough and individualised examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman or degrading treatment be established.", "The Court also notes that this approach was followed by the United Kingdom Supreme Court in its judgment of 19 February 2014 (see paragraph 5 2 above).", "105. In the present case the Court must therefore ascertain whether, in view of the overall situation with regard to the reception arrangements for asylum seekers in Italy and the applicants ’ specific situation, substantial grounds have been shown for believing that the applicants would be at risk of treatment contrary to Article 3 if they were returned to Italy.", "( i ) Overall situation with regard to the reception arrangements for asylum seekers in Italy", "106. As regards the overall situation, in its decision in Mohammed Hussein ( cited above, § 78), the Court noted that the UNHCR Recommendations and the Human Rights Commissioner ’ s report, both published in 2012, referred to a number of failings. According to the applicants, these were “ systemic ” and stemmed from the slowness of the identification procedure, the inadequate capacity of the reception facilities and the living conditions in the available facilities (see paragraphs 5 6 to 6 7 above).", "( α) Slowness of the identification procedure", "107. As regards the problems allegedly linked to the slowness of the identification procedure, the Court notes that the applicants have already been identified and that the Swiss and Italian authorities now have all the relevant information concerning them. It further observes that it took the Italian authorities only ten days to identify the applicants on their arrival in Stignano, despite the fact that they had supplied a false identity to the police (see paragraph 10 above). Accordingly, this aspect of the applicants ’ complaint is no longer directly relevant to the examination of the case and the Court sees no need to dwell on it further.", "( β ) Capacity of the reception facilities", "108. With regard to the capacity of the accommodation facilities for asylum seekers, the applicants based their submissions on detailed studies carried out by non-governmental organisations, according to which the number of asylum applications in Italy was 34, 115 in 2011 and 15, 715 in 2012, with the figures rising in 2013. According to the SFH- OSAR report, there were 64,000 refugees living in Italy in 2012; however, in 2012 there were only 8,000 places in the CARAs, with waiting lists so long that the majority of applicants had no realistic prospect of gaining access. As to the facilities belonging to the SPRAR network, the SFH-OSAR report stated that there were 4,800 places and 5,000 people on the waiting list. The same report observed that, according to two other organisations, Caritas and the JRS, only 6% of the persons housed in the SPRAR facilities – where, moreover, the maximum stay was six months – managed to find work and integrate professionally into Italian society. With regard to the accommodation centres run by the municipal authorities, which were open to any person suffering hardship and not just to asylum seekers, the number of places also fell far short of what was needed. According to the SFH ‑ OSAR report there were 1,300 places in Rome, with a waiting list of 1,000 and an average waiting time of three months. In Milan, there were only 400 places and families were systematically split up.", "109. The Court notes that these figures were not disputed by the Swiss Government, which simply emphasised the efforts undertaken by the Italian authorities to cope as best they could with the uninterrupted flow of asylum seekers into the country over the past few years. In their observations, the Italian Government stated that the measures being taken by the Italian authorities were focused on increasing reception capacity for asylum seekers. In particular, it had been decided in September 2013 to increase the overall capacity of the SPRAR system to 16,000 places over the period 2014-2016; 1,230 places had already been created, bringing the total of available places to 9,630 (see paragraph 7 8 above).", "110. The Court notes that the methods used to calculate the number of asylum seekers without accommodation in Italy are disputed. Without entering into the debate as to the accuracy of the available figures, it is sufficient for the Court to note the glaring discrepancy between the number of asylum applications made in 2013, which according to the Italian Government totalled 14,184 by 15 June 2013 (see paragraph 7 8 above), and the number of places available in the facilities belonging to the SPRAR network (9,630 places), where – again according to the Italian Government – the applicants would be accommodated (see paragraph 7 6 above). Moreover, given that the figure for the number of applications relates only to the first six months of 2013, the figure for the year as a whole is likely to be considerably higher, further weakening the reception capacity of the SPRAR system.", "The Court further notes that neither the Swiss nor the Italian Government claimed that the combined capacity of the SPRAR system and the CARAs would be capable of absorbing the greater part, still less the entire demand for accommodation.", "( γ ) Reception conditions in the available facilities", "111. As regards living conditions in the available facilities, the studies cited by the applicants referred to certain accommodation centres where lack of privacy, insalubrious conditions and violence were allegedly widespread (see paragraphs 6 6 to 6 7 above). The applicants themselves also claimed to have witnessed violent incidents during their short stay in the Bari CARA. They further submitted that, in some centres, families of asylum seekers were systematically split up.", "112. The Court notes that in its Recommendations for 2013 UNHCR did indeed describe a number of problems, relating in particular to the varying quality of the services provided, depending on the size of the facilities, and to a lack of coordination at national level. However, while it observed a degree of deterioration in reception conditions, particularly in 2011, and a problem of overcrowding in the CARAs, UNHCR did not refer to situations of widespread violence or insalubrious conditions, and even welcomed the efforts undertaken by the Italian authorities to improve reception conditions for asylum seekers. The Human Rights Commissioner, in his 2012 report (see paragraph 4 9 above), also noted the existence of problems in “some of the reception facilities”, voicing particular concern with regard to legal aid, care and psychological assistance in the emergency reception centres, the time taken to identify vulnerable persons and the preservation of family unity during transfers.", "113. Lastly, the Court notes that at the hearing of 12 February 2014 the Italian Government confirmed that violent incidents had occurred in the Bari CARA shortly before the applicants ’ arrival. They denied, however, that the families of asylum seekers were systematically separated, stating that this occurred only in a few cases and for very short periods, notably during the identification procedures.", "114. In view of the foregoing, the current situation in Italy can in no way be compared to the situation in Greece at the time of the M.S.S. judgment, cited above, where the Court noted in particular that there were fewer than 1,000 places in reception centres to accommodate tens of thousands of asylum seekers and that the conditions of the most extreme poverty described by the applicant existed on a large scale. Hence, the approach in the present case cannot be the same as in M.S.S.", "115. While the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court ’ s view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded.", "ii. The applicants ’ individual situation", "116. As regards the applicants ’ individual situation, the Court notes that, according to the findings of the Italian police and the identification forms annexed to the observations of the Italian Government, the couple and their five oldest children landed on the coast of Calabria on 16 July 2011 and were immediately subjected to an identification procedure, having supplied a false identity. The same day, the applicants were placed in a reception facility provided by the municipal authorities of Stignano, where they remained until 26 July 2011. On that date, once their true identity had been established, they were transferred to the CARA in Bari. They left that centre without permission on 28 July 2011, bound for an unknown destination.", "117. Accordingly, just as the overall situation of asylum seekers in Italy is not comparable to that of asylum seekers in Greece as analysed in the M.S.S. judgment (see paragraph 11 4 above), the specific situation of the applicants in the present case is different from that of the applicant in M.S.S. Whereas the applicants in the present case were immediately taken charge of by the Italian authorities, the applicant in M.S.S. was first placed in detention and then left to fend for himself, without any means of subsistence.", "118. The Court reiterates that to fall within the scope of Article 3 the ill ‑ treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see paragraph 9 4 above). It further reiterates that, as a “particularly underprivileged and vulnerable” population group, asylum seekers require “ special protection ” under that provision (see M.S.S ., cited above, § 251).", "119. This requirement of “special protection” of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability. This applies even when, as in the present case, the children seeking asylum are accompanied by their parents ( see Popov, cited above, § 91). Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not “create ... for them a situation of stress and anxiety, with particularly traumatic consequences” ( see, mutatis mutandis, Popov, cited above, § 102). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention.", "120. In the present case, as the Court has already observed (see paragraph 11 5 above), in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in M.S.S., the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together.", "121. The Court notes that, according to the Italian Government, families with children are regarded as a particularly vulnerable category and are normally taken charge of within the SPRAR network. This system apparently guarantees them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation (see paragraph 8 6 above). However, in their written and oral observations the Italian Government did not provide any further details on the specific conditions in which the authorities would take charge of the applicants.", "It is true that at the hearing of 12 February 2014 the Swiss Government stated that the FMO had been informed by the Italian authorities that, if the applicants were returned to Italy, they would be accommodated in Bologna in one of the facilities funded by the ERF (see paragraph 7 5 above). Nevertheless, in the absence of detailed and reliable information concerning the specific facility, the physical reception conditions and the preservation of the family unit, the Court considers that the Swiss authorities do not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children.", "122. It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3", "123. The applicants complained that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family in the procedure for their return to Italy, which they considered to be unduly formalistic and automatic, not to say arbitrary.", "124. The Swiss Government contested that argument. In their view, the risk of treatment contrary to Article 3 had been duly examined by the Swiss authorities before the applicants ’ removal to Italy had been ordered. At the interview of 15 November 2011, which had been conducted in a language they understood, the applicants had been invited to explain in detail the possible grounds for not returning them to Italy, but had invoked only general economic grounds. Only after their application had been dismissed for the first time by the Federal Administrative Court had they provided further details concerning their reception conditions in Italy. In any event, that new information had not been capable of altering the decision to remove them and had been dismissed by the Federal Administrative Court in its decision of 21 March 2012.", "125. At the hearing of 12 February 2014 the Government stated that the Swiss authorities did not hesitate to apply the sovereignty clause provided for by Article 3(2) of the Dublin Regulation where they deemed it necessary. This was borne out by the examples provided by the AIRE Centre, ECRE and Amnesty International, some twenty of which concerned returns to Italy.", "126. The Court reiterates that an applicant ’ s complaint alleging that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention “must imperatively be subject to close scrutiny by a ‘ national authority ’ ” (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 198, ECHR 2012). That principle has led the Court to rule that the notion of “effective remedy” within the meaning of Article 13 taken in conjunction with Article 3 requires, firstly, “independent and rigorous scrutiny” of any complaint made by a person in such a situation, where “there exist substantial grounds for fearing a real risk of treatment contrary to Article 3” and, secondly, “the possibility of suspending the implementation of the measure impugned” (ibid. ).", "127. In the present case the Court notes that the applicants were interviewed by the FMO on 15 November 2011, in a language they understood, and asked to explain in detail the possible grounds for not returning them to Italy.", "128. Following the decision of the FMO of 24 January 2012 to reject their claim for asylum and return them to Italy, on 2 February 2012 the applicants were able to lodge an application with the Federal Administrative Court. They submitted before that court that the reception conditions in Italy were in breach of the Convention. The Federal Administrative Court ruled promptly on the application and dismissed it on 9 February 2012, that is, seven days after it had been lodged.", "129. Following that dismissal the applicants decided to file a request with the FMO “to have the asylum proceedings reopened”. That request, based on a reworded account by the applicants of their stay in Italy, was sent to the Federal Administrative Court, which classified it as a “request for revision” of the judgment of 9 February 2012 and declared it inadmissible on the grounds that it was essentially a reclassification of the facts of the case.", "130. The Court notes that it is not disputed that at the time of the Federal Administrative Court ’ s judgment of 9 February 2012 the applicants had not produced any evidence before the national authorities to suggest that their safety would be at risk if they were returned to Italy. It also notes that the aforementioned judgment of the Federal Administrative Court dealt unambiguously with the specific situation of the applicants as a family with young children, addressed in detail the complaints raised by the applicants and was fully reasoned. Furthermore, the Court does not discern the slightest arbitrariness in the Federal Administrative Court ’ s decision not to take account of the reworded description by the applicants of their stay in Italy and to declare their request for revision inadmissible. It also notes that this type of application is lodged in extraordinary proceedings and, with regard to factual considerations, cannot be declared admissible unless “the applicant later discovers relevant facts or conclusive evidence that he or she was unable to rely on in the previous proceedings ” ( section 123 of the Federal Administrative Court Act), which is not the case here.", "131. Furthermore, the fact that the Federal Administrative Court has opposed the return of asylum seekers to “Dublin” States in some cases, including that of a family with young children who were to be deported to Italy, or made it subject to conditions (see paragraphs 26 and 27 above), also suggests that that court normally undertakes a thorough examination of each individual situation and, as stressed by the Swiss Government, does not hesitate to invoke the “sovereignty clause” contained in Article 3(2) of the Dublin Regulation.", "132. It follows that the applicants had available to them an effective remedy in respect of their Article 3 complaint. Accordingly, their complaint under Article 13 of the Convention taken in conjunction with Article 3 must be rejected as manifestly ill - founded, in accordance with Article 35 §§ 3 ( a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "133. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "134. The applicants did not submit any claim for just satisfaction in respect of pecuniary damage. Accordingly, the Court considers that it is unnecessary to make an award under this head.", "135. The applicants claimed the sum of 7,500 euros (EUR) in respect of non-pecuniary damage.", "136. The Government stressed that the applicants had not been transferred to Italy and submitted that the finding that such a transfer would be in breach of Article 3 of the Convention would constitute sufficient just satisfaction.", "137. The Court considers that its finding in paragraph 122 of the present judgment constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants (see, to this effect, Beldjoudi v. France, 26 March 1992, §§ 79 and 86, Series A no. 234-A; M. and Others v. Bulgaria, no. 41416/08, §§ 105 and 143, 26 July 2011; and Nizamov and Others v. Russia, nos. 22636/13, 24034/13, 24334/13 and 24328/13, § 50, 7 May 2014).", "B. Costs and expenses", "138. Before the Chamber, the applicants had also claimed EUR 3,585 in respect of the fees paid to their representatives and 262 Swiss francs (CHF) (EUR 215) for interpretation costs in connection with their meetings with their representatives.", "139. The Government did not object to this claim.", "140. On 3 April 2014 the applicants submitted a further claim for just satisfaction in addition to that submitted before the Chamber. The additional claim concerned the cost of preparing for and being represented at the hearing of 12 February 2014. The additional costs totalled CHF 10,196.", "141. The Government contested this additional claim, arguing that it had been submitted out of time.", "142. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers the sum of EUR 7,000 to be reasonable to cover costs under all heads, and awards it to the applicants.", "C. Default interest", "143. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1980 and lives in Krefeld ( Germany ).", "8. On 25 August 2001 she gave birth to a child in Germany whose father, A., is a Portuguese national.", "9. In October 2001 the child ’ s father was sentenced by the court of Krefeld to five years ’ imprisonment for drug trafficking. His exclusion from Germany having been ordered, he was deported to Portugal in November 2004.", "10. The applicant and the child ’ s father separated while he was in prison.", "11. In January 2005, accompanied by a paternal uncle, the child went to Portugal to visit his father.", "12. On 14 January 2005 the applicant travelled to Portugal to collect her child. She returned alone to Germany on 22 February 2005.", "A. The civil proceedings for the child ’ s return", "13. In March 2005 the applicant lodged, with the Federal Attorney - General, a request for the child ’ s return to Germany in accordance with the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 ( “ the Hague Convention ” ).", "14. On 27 October 2005 the German public prosecution service sent a request to the Portuguese authorities to obtain the child ’ s return, alleging that the child had been wrongfully removed from Portugal in breach of Article 3 of the Hague Convention.", "15. The request was served on the child ’ s father, who opposed the return. A. denied, in particular, that the child ’ s removal had been wrongful and stated that the decision for the child ’ s trip had been taken by both parents. He explained that the child ’ s movement had been decided by both parents because the child ’ s mother had envisaged settling in Portugal.", "16. On 24 January 2006 the Braga Family Court gave a judgment to the effect that the child should not be returned to Germany, finding that the child ’ s retention in Portugal was not wrongful within the meaning of Article 3 of the Hague Convention or of Article 11 of Council Regulation (EC) no. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“ Council Regulation no. 2201/2003”).", "17. On 2 February 2006 the applicant appealed against the judgment before the Guimarães Court of Appeal arguing, among other things, that she had not been heard by the Braga Family Court.", "18. In a judgment of 21 June 2006, the Guimarães Court of Appeal granted the applicant ’ s request. Annulling the judgment of the Braga Family Court, the Court of Appeal referred the case back to it, directing in particular that it should hear the child ’ s mother.", "19. The child ’ s father appealed against the judgment of the Guimarães Court of Appeal before the Supreme Court, which dismissed his appeal on 7 November 2006.", "20. On 15 August 2007, pursuant to an international letter of request from the Braga Family Court dated 14 February 2007, the mother was heard by the Krefeld court.", "21. On 13 September 2007 the Krefeld court reported back to the Braga Family Court, sending the record of the hearing.", "22. In a judgment of 21 May 2008, the Braga Family Court again rejected the request for the child ’ s return, finding that the child ’ s removal had not been wrongful as it had been agreed between the two parents.", "23. On 12 June 2008 the applicant lodged an appeal before the Guimarães Court of Appeal. Her appeal was dismissed by a judgment of 9 January 2009.", "24. In its judgment, the Court of Appeal stated :", "“... it must be concluded that from the time when the mother of L. returned to Germany without her son, he began to be wrongfully retained in Portugal. Her return request showed, categorically, that she did not wish her son to remain in Portugal. ”", "25. Even though the Court of Appeal recognised that the case concerned a situation of wrongful retention of a child, under the terms of Council Regulation no. 2201/2003, it found it preferable for the child to remain in Portugal for the following reasons :", "“The facts of the case show that the child, who has been looked after by his great - grandmother since March 2008, has a particular emotional attachment to her, seeing in her a mother figure, to the point of almost forgetting the image of his mother. His great - grandmother is the person who takes care of him day - to - day, with tenderness ... The mother very rarely calls her child, and when she does so, the child does not consider it very important. The child sees his great - grandmother, at the current stage of his development, as a figure of authority who brings him security and tranquillity, as shown in his behaviour at school and in his relationships with others. He is content in the environment in which he lives and has been very successful at school. Accordingly, to change his environment and take him away from the person to whom he relates would risk causing him psychological harm ...", "All the conditions are thus met for the respondent State to prevent the child ’ s return, in the light of the child ’ s best interests, which must take precedence over the free movement of children – even if this is done safely – in accordance with Article 13 ( b) of the Hague Convention [on the Civil Aspects of International Child Abduction] of 1980. Taking the view that a return to Germany would be harmful for the child, the respondent State has acted in accordance with Article 13 of the Hague Convention .”", "B. The proceedings in respect of parental responsibilities", "26. On 2 March 2005 the public prosecutor at the Braga court opened proceedings in respect of parental responsibilities ( regulação do poder paternal ) vis-à-vis the child. Custody was provisionally awarded to the father.", "27. On 3 October 2005 the Braga Family Court held its first conciliation hearing. As they failed to reach an agreement, the parents were requested to submit pleadings.", "28. On 19 October 2005 the applicant filed her pleadings. Submitting that the child ’ s retention in Portugal was wrongful, the applicant argued that the Braga Family Court lacked territorial jurisdiction, as in her view the German courts had jurisdiction in accordance with Council Regulation no. 2201/2003.", "29. The child ’ s father, in his pleadings of 21 October 2005, requested the court to award him custody.", "30. On 27 October 2005 the public prosecutor at the Braga Family Court submitted that the decision should be deferred until the completion of the proceedings before the German courts concerning the child ’ s return.", "31. In a decision of 31 July 2006, the Braga Family Court amended the provisional allocation of parental authority in respect of the child, transferring it to the child ’ s great - grandmother.", "32. On 4 January 2008 the applicant (represented by her lawyer ) and the child ’ s father jointly requested the Braga Family Court to award custody of the child to the applicant.", "33. On 30 January 2008 the applicant requested the court to speed up the proceedings.", "34. On 27 February 2008 the child ’ s father was remanded in custody in connection with an investigation into false imprisonment, extortion, drug trafficking, unlawful carrying of a weapon and theft.", "35. On 10 March 2008 the applicant reiterated her request to the Braga Family Court to obtain parental authority of the child. In a decision of 4 April 2008, the court dismissed the applicant ’ s request, indicating that the proceedings had been stayed.", "36. On 15 May 2008 the child ’ s great - grandmother requested the court to grant her permanent custody of the child.", "37. Following the judgment of the Guimarães Court of Appeal of 9 January 2009, the Braga Family Court decided on 3 May 2009 that the proceedings in respect of parental responsibilities should be resumed.", "38. On 26 January and 15 May 2009 the applicant requested the Braga Family Court to award her custody of the child, invoking her agreement with the child ’ s father.", "39. By an international letter of request, the court sought information from the German social services about the applicant ’ s social and financial circumstances.", "40. On 12 October 2009 the Braga Family Court received the reports that had been requested from the German authorities. On 20 October 2009 it received a report from the Portuguese social services showing the child ’ s general situation of well-being in Portugal.", "41. To date, the proceedings are still pending before the Braga Family Court.", "C. The application for infringement proceedings before the European Commission", "42. On 2 April 2008 the applicant filed a complaint with the European Commission alleging an infringement of Council Regulation no. 2201/2003. She complained about the excessive length of the proceedings before the Braga Family Court, relying on Article 11 of the Regulation.", "43. On 15 September 2008 the applicant sent various documents in support of her application to the European Commission.", "44. On 7 May 2009 the Commission ’ s Directorate-General for Justice, Freedom and Security asked the applicant for additional information concerning the proceedings for the return of the child on grounds of wrongful removal and retention. On 15 June 2009 the applicant sent that information to the Directorate-General, submitting a copy of the Guimarães Court of Appeal ’ s judgment of 9 January 2009.", "45. According to the most recent information from the applicant, dating from 2 July 2010, the proceedings thus initiated before the European Commission were still pending." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "...", "B. Relevant European Union law", "...", "2. Filing of a complaint with the European Commission", "4 8. The relevant part of Article 17 of the Treaty on European Union provides as follows :", "“1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union ’ s external representation. It shall initiate the Union ’ s annual and multiannual programming with a view to achieving interinstitutional agreements. ”", "4 9. Article 258 of the Treaty on the Functioning of the European Union ( formerly Article 226 of the Treaty establishing the European Community ) provides as follows :", "“If the Commission considers that a member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.", "If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.”", "50. In addition, the relevant part of Article 260 of the Treaty on the Functioning of the European Union ( formerly Article 228 of the Treaty establishing the European Community ) provides as follows :", "“ 3. ... If the Court [of Justice of the European Union] finds that there is an infringement it may impose a lump sum or penalty payment on the member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.”", "5 1. The explanatory note accompanying the complaint form [1] to be addressed to the European Commission for non-compliance with European Union law explains as follows :", "“ Anyone may lodge a complaint with the Commission against a member State about any measure (law, regulation or administrative action) or practice which they consider incompatible with a provision or a principle of Community law. Complainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are principally and directly concerned by the infringement complained of. To be admissible, a complaint has to relate to an infringement of Community law by a member State. ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "...", "A. Admissibility", "...", "2. Objection relating to admissibility under Article 35 § 2 ( b) of the Convention", "59. The Government raised a further objection to the admissibility of the application under Article 35 § 2 ( b) of the Convention, arguing that the applicant had submitted the same application to the European Commission.", "60. The Court observes that the applicant, on 2 April 2008, filed a complaint with the European Commission in respect of the same facts.", "61. The relevant parts of Article 35 § 2 (b) of the Convention read as follows:", "“2. The Court shall not deal with any application submitted under Article 34 that", "...", "(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”", "62. The Court reiterates that Article 35 § 2 ( b) seeks to avoid a plurality of international proceedings relating to the same cases ( see Calcerrada Fornieles and Cabeza Mato v. Spain, no. 17512/90, Commission decision of 6 July 1992, Decisions and Reports (DR) 73, p. 220; Folgerø and Others v. Norway ( dec. ), no. 15472/02, 14 February 2006; and Smirnova v. Russia ( dec. ), nos. 46133/99 and 48183/99, 3 October 2002). Under the Convention, the Court cannot therefore deal with any application which has already been investigated or is being investigated by an international body ( see Celniku v. Greece, no. 21449/04, § 39, 5 July 2007). The term “another procedure” refers to judicial or quasi-judicial proceedings similar to those set up by the Convention ( see Lukanov v. Bulgaria, no. 21915/93, Commission decision of 12 January 1995, DR 80- A, p. 108). The Court must therefore determine whether the nature of the supervisory body, the procedure followed thereby and the effects of its decisions are such that Article 35 § 2 ( b) precludes the Court ’ s jurisdiction ( see, in respect of the “1503 procedure” before the United Nations Commission on Human Rights, Mikolenko v. Estonia ( dec. ), no. 16944/03, 5 January 2006, and Celniku, cited above, §§ 39-41; for other United Nations bodies see the decisions in Folgerø and Others, cited above; Smirnova, cited above; and Malsagova and Others v. Russia ( dec. ), no. 27244/03, 6 March 2008; for a complaint before the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, see Zagaria v. Italy ( dec. ), no. 24408/03, 3 June 2008, and De Pace v. Italy, no. 22728/03, §§ 25-2 7, 17 July 2008).", "63. The Court must therefore determine whether, in the present case, the application is “substantially the same” as the matter submitted to the European Commission. An application is considered “substantially the same” where it concerns the same persons, facts and complaints ( see Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995, DR 80 ‑ A, p. 170, and contrast Folgerø and Others, decision cited above ).", "64. In the present case, there is no doubt that the applicant has submitted the same facts and complaints to both the Court and the European Commission.", "65. It should now be determined whether the procedure before the European Commission is similar, in its procedural aspects and potential effects, to the individual applications provided for in Article 34 of the Convention.", "66. The European Commission, the executive organ of the European Union, also “ensure[s] the application of the Treaties, and of measures adopted by the institutions pursuant to them”, as provided by Article 17 of the Treaty on European Union.", "67. Anyone may lodge a complaint with the European Commission against a member State about any measure (law, regulation or administrative action) or practice which they consider incompatible with a provision or a principle of European Union law. The complaint may be submitted by ordinary letter or using the form accessible on the European Union ’ s Internet server [2].", "68. To be admissible, a complaint has to relate to an infringement of Community law by a member State. According to the settled case-law of the Court of Justice of the European Union, the European Commission has the discretion to decide whether or not infringement proceedings should be opened and then whether or not to refer the case to the Court of Justice of the European Union in accordance with Article 258 of the Treaty on the Functioning of the European Union (formerly Article 226 of the Treaty establishing the European Community ), which provides that “[ i ]f the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union”.", "6 9. As was stated by the Court of First Instance of the European Communities [3] in the judgment Syndicat Départemental de Défense du Droit des Agriculteurs ( SDDDA ) v. Commission of the European Communities, “[t]he Commission is not bound to initiate an infringement procedure against a member State; on the contrary, it has a discretionary power of assessment, which rules out any right for individuals to require it to adopt a particular position” ( Case T-47/96 [1996] European Court Reports II-1559, § 42 (12 November 1996) ).", "70. The sole purpose of the “infringement proceedings” or “pre-litigation phase” is to enable the member State to conform voluntarily with the requirements of European Union law.", "71. There are several formal stages in the infringement procedure. The Commission may first have to carry out some investigation, as is the case when infringement procedures are launched further to a complaint. The letter of formal notice represents the first stage in the pre-litigation procedure, during which the Commission requests a member State to submit its observations on an identified problem regarding the application of European Union law within a given time- limit. The purpose of the reasoned opinion is to set out the Commission ’ s position on the infringement and to determine the subject matter of any action, requesting the member State to comply within a given time- limit. The reasoned opinion must give a coherent and detailed statement of the reasons that have led the Commission to conclude that the member State concerned has failed to fulfil one or more of its obligations under the Treaties.", "72. Where a case is referred to the Court of Justice of the European Union, Article 260 of the Treaty on the Functioning of the European Union provides that if an infringement is found the court “ may impose a lump sum or penalty payment on the member State concerned not exceeding the amount specified by the Commission ”, in order to compel the State to comply with European Union law.", "73. The explanatory note accompanying the complaint form to be addressed to the European Commission ( see paragraph 51 above ) indicates that “ any finding of an infringement by the Court of Justice [ of the European Union ] has no impact on the rights of the complainant, since it does not serve to resolve individual cases. It merely obliges the member State to comply with Community law. More specifically, any individual claims for damages would have to be brought by complainants before the national courts ”. For that reason the note adds: “ [c] omplainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are principally and directly concerned by the infringement complained of .”", "74. While the Court of Justice of the European Union adjudicates upon costs ( Article 38 of its Statute ), it cannot award individual reparation, and individual actions for damages must therefore be brought before the national courts ( see the judgment of the Court of Justice of the European Union in Brasserie du Pêcheur SA v. Federal Republic of Germany and The Queen v. Secretary of State for Transport, ex parte Factortame Ltd and Others, Joined Cases C-46/93 and C-48/93 (5 March 1996) ).", "75. Having regard to the foregoing, the Court takes the view that the applicant ’ s European Commission procedure is not similar, in either its procedural aspects or its potential effects, to the individual application provided for in Article 34 of the European Convention on Human Rights.", "76. The Court thus concludes that where the European Commission decides, as in the present case, on a complaint by a private individual, this does not constitute a “procedure of international investigation or settlement”, within the meaning of Article 35 § 2 ( b) of the Convention. The objection raised by the Government must therefore be dismissed.", "77. Lastly, the Court finds that the complaints raised by the applicant are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other ground for declaring them inadmissible has been established. They should therefore be declared admissible.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. Mr Fernand Ullens de Schooten and Mr Ivan Rezabek live in Bonlez and Brussels respectively. They were directors of an accredited clinical biology laboratory called Biorim, whose services were eligible for reimbursement through the National Institute for Sickness and Invalidity Insurance (Institut national d’assurance maladie invalidité – the “INAMI”).", "A. Application no. 3989/07", "5. The Biorim laboratory was searched on 21 November 1989 following a complaint from the Special Tax Inspectorate. The applicants were arrested and remanded in custody. Proceedings were brought against them and eleven other individuals for offences related to the management of the laboratory, including forgery and failure to comply with Article 3 of Royal Decree no. 143 of 30 December 1982.", "The Article in question laid down, in respect of clinical biology services, the conditions to be met by medical laboratories so that the cost of their services could be reimbursed to users through the sickness insurance scheme. In the version of the text that was in force until 24 May 2005, it stipulated in particular that only laboratories that were run by doctors, pharmacists or persons qualified in chemical sciences were entitled to carry out clinical tests that were eligible for reimbursement.", "1. Proceedings before the Brussels Court of First Instance", "6. On 29 June 1993 the investigating judge concluded the preparation of the case. On 3 April 1995 the Crown Prosecutor finalised his written submissions and, on 29 May 1996, the Committals Division made an order committing the applicants (and eleven other defendants) to stand trial before the Brussels Court of First Instance, sitting as a criminal court.", "The fraudulent intent referred to in the committal submissions for offences classified as acts of “forgery” consisted in the fact of deceiving the authorities “responsible for monitoring implementation of the legislation on the operation of medical laboratories, in particular the provisions of Royal Decree no. 143”.", "7. The oral proceedings began on 20 June 1997 and were spread over forty hearings.", "8. A number of mutual insurance companies applied to join the proceedings as civil parties. They sought compensation for damage stemming from two causes. They claimed that the applicants had, firstly, engaged in a practice of fee sharing and, secondly, had run a clinical biology laboratory in breach of the provisions of Article 3 of Royal Decree no. 143. Under the second head they claimed 19,908,531 euros, corresponding to the total amount paid to the Biorim laboratory between 1 January 1990 (date on which Royal Decree no. 143 entered into force) and 16 April 1992 (last day of the period in which the offences were committed).", "9. On 30 October 1998 the criminal court convicted the applicants, imposing prison sentences and fines, for various offences that had been committed in connection with the management of Biorim. It found in particular that between 1 January 1990 and 10 June 1997 the laboratory had been run by the first applicant at a time when he did not fulfil the conditions of Article 3 of Royal Decree no. 143, and that he had devised various means of circumventing the legislation.", "The court declared the civil parties’ claims admissible, but awarded them only a token amount of one euro on the ground that the damage had not been sufficiently substantiated.", "2. Proceedings before the Brussels Court of Appeal", "10. Before the Brussels Court of Appeal, the applicants argued in particular that Article 3 of Royal Decree no. 143 was incompatible with Article 86 of the Treaty establishing the European Community, taken together with Articles 82 (prohibition of the abuse of a dominant position) and 43 (freedom of establishment) of the Treaty and that it should be declared inapplicable on account of the direct effect and primacy of Community law. They requested in this connection that the question be referred to the Court of Justice of the European Communities for a preliminary ruling.", "11. In a judgment of 7 September 2000 the Brussels Court of Appeal, after examining the above-mentioned argument on the merits, found that Article 3 of Royal Decree no. 143 was compatible with Community law. It emphasised, in particular, that “national measures capable of hindering or rendering less attractive the exercise of the fundamental freedoms guaranteed by the Treaty” had to fulfil four conditions and that the measure in question did so, being non-discriminatory, justified by compelling reasons in the general interest, appropriate to ensure the fulfilment of the aim pursued, and not going beyond what was necessary to that end.", "The Court of Appeal then decided “that there [was] no need to refer questions for a preliminary ruling”.", "12. ...", "The Court of Appeal thus handed down convictions – mainly for tax fraud – sentencing the first applicant to five years’ imprisonment, with a five-year suspension for the part of the main prison sentence in excess of four years, and to a fine of 500,000 Belgian francs (about EUR 12,395), and the second applicant to three years’ imprisonment, with a five-year suspension for the part of the main prison sentence in excess of two years, and to a fine of 300,000 Belgian francs (about EUR 7,437). As to the requests of the civil parties, the Court of Appeal declared them inadmissible.", "3. First set of cassation proceedings", "13. Ruling on appeals by the applicants and the civil parties, the Court of Cassation, in a judgment of 14 February 2001, dismissed the appeals in so far as they were directed against the criminal provisions of the judgment of 7 September 2000, finding in particular that there was no need to refer questions to the Court of Justice of the European Communities. It quashed the judgment, however, in respect of its findings on the civil actions and, within that limit, referred the case back to the Mons Court of Appeal.", "4. The reasoned opinion of the European Commission and the subsequent reform of Royal Decree no. 143", "14. On 7 December 1999 the first applicant had lodged a complaint against Belgium with the European Commission, arguing that Article 3 of Royal Decree no. 143 was incompatible with the Treaty establishing the European Community.", "In May 2001 the European Commission initiated the infringement procedure provided for in Article 226 of the Treaty establishing the European Community and requested the Belgian authorities to submit their observations on the compatibility of Article 3 of Royal Decree no. 143 with Article 43 of that Treaty, concerning freedom of establishment.", "15. On 17 July 2002 the European Commission adopted a reasoned opinion finding that Article 3 of the Royal Decree was incompatible with Article 43 of the Treaty. It requested Belgium to amend that provision, which had the effect of placing non-Belgian operators wishing to run clinical biology laboratories in Belgium and establish themselves there at a disadvantage in relation to certain Belgian professionals (in particular doctors, pharmacists or persons qualified in chemical sciences). In the Commission’s opinion, the fact that only those laboratories which fulfilled the prescribed conditions could provide services eligible for reimbursement through the health insurance system discouraged beneficiaries of that insurance from going to other laboratories and thus restricted the effectiveness of the freedom of establishment, in breach of Article 43 of the Treaty establishing the European Community.", "16. On 24 May 2005 Belgium enacted a law amending Article 3 of Royal Decree no. 143, abolishing the requirement to have particular qualifications to operate a laboratory carrying out clinical tests eligible for reimbursement under the sickness and invalidity insurance scheme.", "5. Proceedings in the Mons Court of Appeal, after remittal of the case", "17. On 22 September 2003 the parties wrote to the office of the public prosecutor at the Mons Court of Appeal seeking the organisation of a preparatory hearing. It took place between 13 February 2004 and 4 April 2005.", "18. The debate concerning the reimbursement of clinical tests focussed on the question of the compatibility with Community law of Article 3 of Royal Decree no. 143. In the applicants’ submission, that provision was in breach of certain rules of the Treaty establishing the European Community, in particular those concerning freedom of establishment (Article 43 of the Treaty), the free movement of capital (Article 56), the free provision of services (Article 49) and the rules on free competition (Articles 82 and 86). Referring in particular to the European Commission’s opinion of 17 July 2002 (see above), they concluded that Article 3 of Royal Decree no. 143 could not have produced ab initio any legal effect and that, being bound by the primacy of Community law, the Court of Appeal could not take account of the convictions handed down, not even considering the offences as mere torts. In the alternative, the second applicant requested that a question be referred to the Court of Justice of the European Communities for a preliminary ruling on the conformity of Article 3 of Royal Decree no. 143 with the provisions of Articles 43, 49, 56, 82 and 86 of the Treaty establishing the European Community.", "19. In a judgment of 23 November 2005 the Court of Appeal dismissed the applicants’ arguments. It emphasised that the European Commission’s reasoned opinion of 17 July 2002 was not binding and that the Brussels Court of Appeal’s judgment of 7 September 2000, of which the criminal provisions had the authority of res judicata, had found Article 3 of Royal Decree no. 143 to be compatible with Community law. Further noting that the Court of Cassation, in its decision of 14 February 2001, had decided that there was no need to refer preliminary questions to the Court of Justice of the European Communities, it reached the same conclusion, on the ground that such questions were not “indispensable for adjudication”.", "20. Upholding the civil claims, the Mons Court of Appeal ordered the applicants to pay various amounts to the civil parties, including six mutual insurance companies jointly, for a total of EUR 1,859,200.", "6. Second set of proceedings before the Court of Cassation", "21. On 1 December 2005 the applicants appealed on points of law against the judgment of 23 November 2005. They reiterated in particular the argument that Article 3 of Royal Decree no. 143 was incompatible with the Treaty establishing the European Community, a higher source of law. They further submitted that, whilst the Court of Cassation itself had not found the provisions incompatible, it had a duty, under Article 234 of the Treaty establishing the European Community, to refer the matter to the Court of Justice of the European Communities for a preliminary ruling on the issue of incompatibility and the requisite solution, in the circumstances of the case, to the conflict between the principle of the authority of res judicata and the primacy of Community law. In their submission, the fact that the Mons Court of Appeal had upheld the authority of res judicata in the Brussels Court of Appeal’s judgment, whereas developments following that decision had revealed it to be erroneous, constituted a breach of the right to a fair hearing under Article 6 of the Convention and more specifically the entitlement to a hearing by an impartial tribunal.", "22. On 14 June 2006 the Court of Cassation dismissed the applicants’ appeals. It reiterated among other things the principle that the authority of res judicata in criminal matters precluded the court hearing any subsequent civil claims from calling into question what had been adjudicated with final effect, certainty and necessity as to the existence of a fact forming the common basis of the criminal proceedings and the civil suit. It concluded that the Mons Court of Appeal had rightly held that the finding of the Brussels Court of Appeal of 7 September 2000 concerning the conformity of Article 43 of Royal Decree no. 143 with Community law had been correct, being in line with that principle.", "The Court of Cassation, moreover, considered that the question whether the principle of the primacy of Community law should take precedence over that of the authority of res judicata had already been settled by the Court of Justice of the European Communities in its judgments in Eco Swiss China Time Ltd and Benetton International NV (C-126/97) of 1 June 1999 and Rosemarie Kapferer v. Schlank & Schlick GmbH (C-234/04) of 16 March 2006. It noted in this connection that the Luxembourg Court had concluded in those judgments that the second principle prevailed, finding that “Community law [did] not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue”, and had explained in the Kapferer judgment that “the obligation of the body concerned to review a final decision, which would appear to have been adopted in breach of Community law [was] subject, in accordance with Article 10 EC, to the condition, inter alia, that that body should be empowered under national law to reopen that decision”. The Court of Cassation concluded that “there [was] no need to submit once again to the Court of Justice of the European Communities the point of law that it [had] thus resolved, regardless of the nature of the proceedings which [had given] rise to its case-law and despite the questions at issue not strictly being the same”.", "B. Application no. 38353/07", "23. On 18 March 1999 the Minister for Public Health issued a decision suspending the laboratory’s accreditation for a twelve-month period. Referring to the Brussels Criminal Court’s judgment of 30 October 1998 (see paragraph 9 above), the decision was based on a failure to comply with Royal Decree no. 143.", "The company Biorim unsuccessfully lodged an administrative appeal: the suspension was confirmed by a ministerial decision of 9 July 1999.", "24. In the meantime, on 8 June 2000, a fresh ministerial decision had extended the suspension of accreditation for a twelve-month period “on account of the continuing infringements of Article 3 of Royal Decree no. 143”.", "In a decision of 24 July 2000 the Minister dismissed the administrative appeal lodged by Biorim and confirmed the suspension, on the ground that the company had not put an end to the situation which had justified the first suspension of accreditation, the applicant having continued to run the laboratory.", "25. On 13 September 1999 and 21 September 2000 Biorim applied to the Conseil d’Etat for the annulment of the ministerial decisions of 9 July 1999 (G/A 85.522/VI-15.170; the “first set of proceedings”) and of 24 July 2000 (G/A 94.649/VI-15.635; the “second set of proceedings”).", "26. The applicant was a third-party intervener in the proceedings.", "27. The company Biorim and the applicant claimed in particular that Article 3 of Royal Decree no. 143, on which the impugned decisions had been based, was in breach of Articles 43 (freedom of establishment), 49 (free provision of services) and 56 (free movement of capital) of the Treaty establishing the European Community, and of Article 86 taken together with Articles 82 (prohibition of abuse of dominant position), 43, 49 or 56. They concluded that those decisions were devoid of admissible basis and should therefore be annulled.", "In the alternative, the applicant requested the Conseil d’Etat to refer questions to the Court of Justice of the European Communities for a preliminary ruling to determine whether the above-mentioned Articles of the Treaty establishing the European Community were to be interpreted as precluding the application of legislation imposing the various restrictions provided for in Article 3 of Royal Decree no. 143.", "28. In his report of 22 September 2005, the Auditeur (legal assistant at the Conseil d’Etat ) declared the argument well-founded and took the view that the impugned decisions should be annulled on the ground that Article 3 of Royal Decree no. 143 was not in conformity with Community law.", "The Auditeur observed first of all that the Belgian courts had to refuse to give effect to any provisions of domestic law that ran counter to provisions of international law having direct effect. This was the case for national legislation concerning the services of medical laboratories, which had to be compatible with the rules of Community law on freedom of establishment and the free provision of services, since the Court of Justice of the European Communities had held that those rules applied to such services (CJEC, 11 March 2004, C-496/01). He added that it was invalid in the present case to argue that the legislation bore no relation to trade between two EC member States – especially as, in his opinion, factors of such nature were present – as justification for finding the provisions inapplicable, referring in this connection to the case-law of the Luxembourg court to the effect that since the fundamental freedoms enshrined in Community law extended in their application to the potential effects of legislation, they could not be considered inapplicable simply because the facts of the specific case were confined to a single member State (CJEC, C-321/94 to C-324/94). He went on to observe that “national measures capable of hindering or rendering less attractive the exercise of such fundamental freedoms” were admissible only under certain conditions, in particular where they did not go beyond what was necessary to achieve the aim pursued. In the present case, firstly, Article 3 of Royal Decree no. 143 hindered and rendered less attractive the freedom of establishment, the free provision of services and the free movement of capital as regards the operation of clinical biology laboratories; secondly, the measure implemented was disproportionate to the aim pursued – to avoid over-consumption of clinical biology services – as that aim could be achieved by means that were less restrictive of freedoms.", "29. In two judgments of 21 February 2007, the Conseil d’Etat dismissed the submission that there had been a violation of the above-mentioned Articles of the Treaty establishing the European Community.", "It first observed that, under Article 86 § 1 of the Treaty, “[i]n the case of public undertakings and undertakings to which member States grant[ed] special or exclusive rights, member States [could] neither enact nor maintain in force any measure contrary to the rules contained in that Treaty, in particular to the rules provided for in Article 12 and Articles 81 to 89”. Finding that the laboratories referred to in Article 3 of Royal Decree no. 143 did not fall within those categories, it declared Article 86 of the Treaty inapplicable in the present case.", "As to the other provisions of the Treaty relied upon in the submission, the Conseil d’Etat referred to the case-law of the Court of Justice of the European Communities to the effect that the Treaty’s rules in matters of free circulation of persons and services did not affect any restrictions applying to nationals of a member State on the territory of that State where the situation in which they found themselves had no link to any of the situations envisaged by Community law. According to the Conseil d’Etat, the dispute did not, in the present case, contain any extraneous elements capable of justifying the application of Community law. In that connection it explained as follows:", "“... [Biorim] is a company incorporated under Belgian law and operating in Belgium. As it operates within the Belgian market, it has not availed itself of the freedom of establishment or the free provision of services provided for respectively by Articles 43 and 49 of the Treaty establishing the European Community. The alleged circumstance ... that Community nationals established in other member States could make use of the services of [Biorim] does not constitute, in respect of the company, a link to Community law within the meaning of the above-cited case-law of the Court of Justice of the European Communities.", "[The applicant] is Belgian and in order to run the laboratory of [Biorim] he did not make use of freedom of movement within the European Community. Although it has been shown in the criminal-court decisions that he used “financing packages”, in particular through the intermediary of the Luxembourg company [T.], this factor has no bearing on the grounds for the impugned decision. The case against [Biorim] is not that it was operated by that company, or that it was financed by foreign capital, but precisely that it was run by [the applicant], whereas he did not have one of the qualifications required to do so, as shown by the criminal-court decisions. The [applicant’s] situation in this connection is confined exclusively to the national sphere ...”", "The Conseil d’Etat further refused to refer the applicant’s questions to the Court of Justice of the European Communities for a preliminary ruling, observing as follows:", "“... Article 234 of the Treaty establishing the European Community does not oblige courts or tribunals against whose decisions there is no judicial remedy under national law to refer a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case. The same applies when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case, where previous decisions of the Court have already dealt with the point of law in question, even though the questions at issue are not strictly identical, or where the correct application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved ... In the present case, there is no reasonable doubt as to the inapplicability of Article 86 § 1 of the Treaty establishing the European Community to the laboratories referred to in Article 3 ... of Royal Decree no. 143 .... In addition, for the reasons given, an answer by the Court as to the interpretation of Articles 43, 49 and 56 of the Treaty establishing the European Community could not affect the outcome of the present dispute ...”", "30. The company Biorim additionally argued, inter alia, that there had been a breach of Articles 10 and 11 of the Constitution concerning equality before the law and the prohibition of discrimination.", "The Conseil d’Etat held that, in so far as Biorim was complaining of a difference in treatment between Belgian nationals established in Belgium and those established in other member States or nationals of other member States, on the ground that the latter categories enjoyed more rights and guarantees in the context of the application of Article 3 of Royal Decree no. 143, this was a new submission raised only in its rejoinder and was thus belated and inadmissible.", "In response to Biorim’s argument that, by reserving the intervention of the sickness insurance scheme to laboratories run by doctors, pharmacists or persons qualified in chemical sciences, Article 3 of Royal Decree no. 143 introduced, between those persons and other business operators, a prohibited difference in treatment, the Conseil d’Etat found that its decision should be reserved in order to submit a question on that subject to the Constitutional Court for a preliminary ruling. The Constitutional Court responded by a judgment of 19 December 2007 that the said provision did not breach Articles 10 and 11 of the Constitution.", "31. In addition, in the context of the second set of proceedings, the Conseil d’Etat partly re-opened the case, requesting the Auditeur to pursue the investigation and produce a supplementary report on arguments other than those alleging a breach of Community law.", "The Auditeur found that the ministerial decision of 24 July 2000 should be annulled on grounds related to the reasoning of the impugned decision, being unconnected to the complaints submitted by the applicant to the Court.", "32. The Conseil d’Etat dismissed the applications by two judgments of 10 September and 22 December 2008." ]

[ "II. RELEVANT DOMESTIC AND COMMUNITY LAW", "33. Article 234 of the Treaty establishing the European Community (former Article 177 and, since 1 December 2009, Article 267 of the Treaty on the Functioning of the European Union) provides for preliminary rulings of the Court of Justice of the European Communities as follows:", "“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:", "(a) the interpretation of this Treaty;", "(b) the validity and interpretation of acts of the institutions of the Community ...;", "...", "Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.", "Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”", "34. In the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health (283/81, Rec. 1982, p. 3415) the Court of Justice of the European Communities had received a request from the Italian Court of Cassation for a ruling as to whether the third paragraph of Article 234 of the Treaty establishing the European Community (former Article 177) laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt.", "In its judgment the Court of Justice explained, firstly, as follows:", "“... 6. The second paragraph of that article [Article 234] provides that any court or tribunal of a Member State may, if it considers that a decision on a question of interpretation is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. The third paragraph of that article provides that, where a question of interpretation is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, bring the matter before the Court of Justice.", "7. That obligation to refer a matter to the Court of Justice is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice. More particularly, the third paragraph of Article [234] seeks to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law. The scope of that obligation must therefore be assessed, in view of those objectives, by reference to the powers of the national courts, on the one hand, and those of the Court of Justice, on the other, where such a question of interpretation is raised within the meaning of Article [234].", "8. In this connection, it is necessary to define the meaning for the purposes of Community law of the expression “where any such question is raised” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before the Court of Justice.", "9. In this regard, it must in the first place be pointed out that Article [234] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article 177. ...”", "The Court of Justice went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “whether a decision on a question of Community law [was] necessary to enable them to give judgment”. It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations: (1) where the question was not relevant, in the sense that the answer to the question, regardless of what it might be, could in no way affect the outcome of the case; (2) where the question was materially identical with question which had already been the subject of a preliminary ruling in a similar case, or where previous decisions of the Court had already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue were not strictly identical; or (3) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved (bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member States and to the Court of Justice, and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it).", "The judgment then concluded as follows (point 21):", "“... the third paragraph of Article [234] of the EEC treaty is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”", "35. Articles 43, 49, 56, 82 and 86 of the Treaty establishing the European Community (Title III “Free Movement of Persons, Services and Capital”) read as follows:", "Article 43", "“Within the framework of the provisions set out below [on the right of establishment], restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.", "Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital.”", "Article 49", "“Within the framework of the provisions set out below [on services], restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.", "The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.”", "Article 56", "“1. Within the framework of the provisions set out in this chapter [on capital and payments], all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.", "2. Within the framework of the provisions set out in this chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.”", "Article 82", "“Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.", "...”", "Article 86", "“1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to 89.", "...”", "36. Article 21 ter of the Preliminary Title of the Code of Criminal Procedure reads as follows:", "“Should the length of criminal proceedings exceed a reasonable time, the court may convict by a mere declaration of guilt or hand down a lesser sentence than that provided for by law ...”", "THE LAW", "...", "II. ALLEGED VIOLATIONS OF THE RIGHT TO A FAIR HEARING", "38. In application no. 3989/07 the applicants complained of a violation by the ordinary courts of their right to a fair hearing. They alleged that the Mons Court of Appeal had not taken account of the incompatibility of Article 3 of Royal Decree no. 143 with Community law, whereas that incompatibility was certain and determined the very existence of the damage alleged by the civil parties. They further criticised the Court of Cassation: for finding that the Brussels Court of Appeal’s ruling on that same question could no longer be challenged in the context of the second appeal on points of law on the ground that it had (apparently) not been challenged in the first; for erroneously giving precedence to the authority of res judicata over the primacy of Community law; and for refusing to uphold their request for a question to be referred to the Court of Justice of the European Communities for a preliminary ruling on the compatibility of Article 3 of Royal Decree no. 143 with Community law and on the principle of the primacy of Community law in relation to the authority of res judicata. They relied on Article 6 § 1 of the Convention, which provides as follows:", "Article 6 § 1", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”", "39. In application no. 38353/07 the first applicant further complained that there had been a breach of his right to a fair hearing in the context of the proceedings before the Conseil d’Etat, alleging that the latter had failed to take account of the illegality, albeit manifest, of Article 3 of Royal Decree no. 143 in the light of Community law and that it had refused to refer this question to the Court of Justice of the European Communities for a preliminary ruling. In additional observations of 11 June 2009, he added that this refusal was all the more arbitrary as the Conseil d’Etat had shown disregard for the adversarial principle by failing to invite the parties to submit argument as to the scope of the Community case-law on which it relied. ...", "B. The parties’ arguments", "1. The Government", "40. The Government referred to the Cilfit judgment of the Court of Justice of the European Communities (cited above), observing that, when receiving a request for a preliminary reference to be made to that court, notwithstanding the wording of the third paragraph of Article 234 of the Treaty establishing the European Community, the “courts or tribunals of a Member State against whose decisions there [was] no judicial remedy under national law”, such as the Conseil d’Etat and the Court of Cassation, had discretion to ascertain whether a decision of the Luxembourg court on a point of Community law was necessary to enable them to give judgment.", "The Government further observed that there were a number of situations, as enumerated in the Cilfit judgment, in which the national court was not bound by the obligation to refer a matter: where the question of Community law raised before it was not relevant; where an interpretation of the Community-law provision in question had already been given by the Luxembourg court, even if the questions at issue were not strictly identical (notion of “ acte éclairé ”); and where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt (notion of “ acte clair ”).", "41. According to the Government, which observed that it was not for this Court to ascertain whether the Belgian courts had correctly applied Community law, the decisions taken in the present case by the Conseil d’Etat and the Court of Cassation fell within those exceptions.", "42. They pointed out that the request made to the Conseil d’Etat for a preliminary reference to the Court of Justice concerned questions as to whether Articles 43, 49, 56 of the Treaty establishing the European Community and Article 86, taken together with those Articles and with Article 82, precluded the application of Article 3 of Royal Decree no. 143 of 30 December 1982.", "The Conseil d’Etat had found that the laboratories referred to in Royal Decree no. 143 were not public undertakings and did not enjoy any exclusive or special rights within the meaning of Article 86 of the Treaty, and that there was no reasonable doubt as to the inapplicability of that provision. The Conseil d’Etat had thus been confronted with an “ acte clair ”, justifying its refusal to grant the request for a preliminary reference.", "The Conseil d’Etat had further relied on the case-law of the Luxembourg Court to the effect that the Treaty’s provisions in matters of free movement could not be applied to a “purely internal situation”, namely, a situation “where all the facts [were] confined to a single member State” or which, in other words, had no “link” to one of the situations envisaged by Community law. Concluding, with in-depth reasoning, that there were no extraneous factors connecting the dispute to Community law, the Conseil d’Etat had found that the question concerning the compatibility of Article 3 of Royal Decree no. 143 with Articles 43, 49 and 56 of the Treaty did not affect the outcome of the case and that there was no need to refer it to the Court of Justice.", "43. According to the Government, as the Community law provisions relied upon were inapplicable, the first applicant’s arguments as to the incompatibility of Article 3 of Royal Decree no. 143 with Community law and his claim that the Conseil d’Etat should have ruled accordingly were irrelevant.", "44. As regards the proceedings before the Court of Cassation, the Government first observed that the Mons Court of Appeal, whose judgment was appealed against, had ruled after the quashing of the civil-law part of the Brussels Court of Appeal’s judgment of 7 September 2000, and that it considered itself to be bound by that judgment which, having the authority of res judicata in its criminal-law part, had concluded in particular that Article 3 of Royal Decree no. 143 was compatible with Community law. They emphasised that the judgment of 7 September 2000 had contained comprehensive reasoning, thus showing that the Brussels Court of Appeal had examined the question in depth and without arbitrariness.", "The Government further observed that the preliminary question that the applicants wished to have referred related in this context to the authority of res judicata of a judicial decision allegedly in breach of Community law. In its judgment of 14 June 2006 the Court of Cassation had legitimately found, in the light of the Court of Justice’s judgments in Eco Swiss, 1 June 1999 (C-126/97) and Kapferer, 16 March 2006 (C-234/04), that Community law did not require national courts to refrain from applying domestic rules of procedure conferring the authority of res judicata on a decision, even if this were necessary in order to prevent a breach of Community law by the decision in question. They added that, whilst the Luxembourg court laid down the principles of equivalence and effectiveness as provisos to the primacy of the res judicata, those principles had been upheld in the present case in so far as the applicants had had the possibility of initiating proceedings for the revision of the Mons Court of Appeal’s judgment with a view to the correct application of European law.", "In sum, according to the Government, not only was the Luxembourg court’s case-law clear on the point that the applicants wished to have referred to it, but, in addition, the question had already been the subject of a preliminary ruling in a similar case.", "45. The Government acknowledged that the applicants had received criminal convictions, which had become final with the Court of Cassation’s judgment of 14 February 2001, partly on the basis of a provision that was likely to have been illegal under Community law. That being said, they emphasised that the European Commission’s reasoned opinion of 17 July 2002 had postdated that judgment and was devoid of authority, and that the Law of 24 May 2005 amending Article 3 of Royal Decree no. 143 had no retrospective effect. As indicated previously, they took the view – without, however, deriving from it any plea of inadmissibility – that, in this very specific normative context, being confronted with the authority of res judicata of the 14 February 2001 judgment, the applicants could have lodged a request for a re-trial. They added that, whilst the conditions for lodging such a request were very restrictive, they were not “excessively difficult”. In the Government’s submission, this possibility preserved the principle of effectiveness, whereby the exercise of rights derived from European law could not be rendered impossible or excessively difficult by the procedure of national courts.", "46. The Government added – still without any inference of inadmissibility – that, as regards both the proceedings before the administrative court and those before the ordinary court, the applicants could also have brought, in Belgium, proceedings to establish the State’s responsibility for erroneous application and interpretation of European law in the adjudication. Referring in particular to the judgment of the Court of Justice of the European Communities in Gerhard Köbler v. Austria (30 September 2003, C-224/01, Reports, p. I-10239), they observed in this connection that the member States of the European Union were obliged to make good damage caused to individuals by infringements of Community law for which they were responsible where the rule of Community law infringed was intended to confer rights on individuals, where the breach was sufficiently serious, and where there was a direct causal link between that breach and the loss or damage sustained. In the Government’s submission, that would have afforded the applicants a final opportunity to request the Belgian courts to refer their preliminary questions to the Court of Justice.", "2. The applicants", "47. The applicants observed that, under Article 234 of the Treaty establishing the European Community, last-instance courts and tribunals had an obligation to refer matters to the Court of Justice of the European Communities for a preliminary ruling on any question of interpretation of the Treaty, and emphasised that the exceptions allowed by that court’s Cilfit case-law had to be construed narrowly. They further observed that the aim of that provision was to introduce cooperation between domestic courts and the Luxembourg court in order to “to prevent discrepancies in the interpretation of Community law and to ensure its uniform application in all member States”. They added that Article 10 of the Treaty establishing the European Community imposed on member States a duty of cooperation and loyal assistance vis-à-vis the Community with, specifically, the objective of uniform interpretation of Community law, and that a refusal to refer a matter on account of a misinterpretation of Community law or a manifestly erroneous assessment of the “absence of doubt” or “obviousness of Community law” tests constituted a breach of Article 10 taken together with Article 234 of the Treaty establishing the European Community.", "The applicants maintained that the denial of their request for a preliminary reference had arbitrarily deprived them of the protection of Community law and of their access to a “tribunal established by law” (“that to which they were entitled”), and that they had thus been prevented from enjoying effective judicial protection, since the refusals emanated from national courts ruling in the last instance and there was some doubt as to the interpretation of Community law governing the outcome of the dispute. In their view, as a result of the mere existence of such doubt, however tenuous, the refusals to make the preliminary reference had been arbitrary in nature.", "48. As regards, more specifically, the proceedings before the Court of Cassation, the applicants took the view that, in rejecting their request for a preliminary reference, that court had wrongly considered the Court of Justice of the European Communities to have already settled the question of the conflict between the authority of res judicata and the primacy of Community law in favour of the former. In their view, the Kapferer judgment, to which the Court of Cassation had referred, only concerned the situation where a court wished to “re-examine” and “quash” a final judicial decision which had been proven incompatible with Community law. The preliminary question they had sought to have submitted had in fact concerned a different situation: not one where a court would have to re-examine or quash a decision that was incompatible with Community law but where it would take another decision based on the former, and thus breach Community law once again. Absent any Community case-law clarifying which of the above-mentioned principles had to take precedence in such a case, the Court of Cassation could not conclude that the application of Community law was so obvious that there was no reasonable doubt as to how the question should be resolved. That court had thus been obliged, under Article 234 of the Treaty establishing the European Community, to refer the matter to Luxembourg.", "The applicants further relied on the fact that, subsequently, in the Olimpliclub judgment of 3 September 2009 (C-2/08), the Court of Justice had reached a conclusion that supported their position, to the effect that whilst a final decision that was erroneous in the light of Community law should not necessarily be set aside or quashed, it should at least not serve as the basis for other decisions.", "49. The applicants further pointed out that it had been impossible for them to lodge an application for revision, in view of the strict and restrictive conditions for the use of this extraordinary remedy. In particular, they would have to prove the existence of a new fact or material circumstance, which were not constituted by the error of law committed by the convicting court or by the enshrining of a new legal solution in case-law. This was necessarily true of a legal opinion such as that given in the present case by the European Commission in its reasoned opinion of 17 July 2002, especially as such an opinion was not binding.", "They added that in July 2007 they had brought an action for damages before the Brussels Court of First Instance on account of a breach of Community law by the respondent State – declared partly inadmissible for being time-barred in 2009 – but explained that this remedy did not provide redress for the violation of Article 6 § 1 arising from the arbitrary refusal by the Court of Cassation and the Conseil d’Etat to refer their preliminary questions to the Court of Justice.", "50. In the applicants’ submission, the refusal by the Conseil d’Etat to refer a matter to the Court of Justice for a preliminary ruling on the application of Articles 43, 49 and 56 of the Treaty establishing the European Community, on account of the “purely internal” nature of the situation, had been similarly arbitrary, for a number of reasons. Firstly, the approach by the highest administrative court in this connection had been an isolated one, as the ordinary courts ruling in the present case had not called into question the applicability of those provisions. Secondly, the Conseil d’Etat had failed to follow the position firmly established by its Auditeur, who had found them applicable. Thirdly, it had thus disregarded the guidelines that the Court of Justice of the European Communities had itself given at a colloquium of the Association of the Councils of State and Supreme Administrative Jurisdictions ( sic ) of the European Union, held in Helsinki on 20 and 21 May 2002, to the effect that the notion of “purely internal situation” should be interpreted very narrowly, that the effects of the preliminary reference procedure should be broadened and that the full scope of Community law should be guaranteed. Fourthly, in assuming that Article 3 of Royal Decree no. 143 did not apply in the same manner to Belgian nationals and other Community nationals, the Conseil d’Etat had taken it for granted that the legislature had decided to create reverse discrimination, whereas that had not been its intention. Fifthly, its conclusion had been based on an error of law as regards the scope of the “purely internal situation” concept.", "On that last point, the applicants first observed that Community case-law had evolved. Whereas the Luxembourg court traditionally considered that Community law could not be applied in a dispute on the merits that was devoid of any extraneous factors, a “purely internal” situation being one “which did not comprise any elements linking it to the scope of Community law”, it had acknowledged in its Pistre and Others judgment of 7 May 1997 (C-321/94 to C-324/94) that it was possible to apply the rules of free movement of goods even to situations that were apparently purely internal, in so far as the national measure at issue was discriminatory and hindered, at least potentially, intra-Community trade: the test as to whether there was a link to Community law thus included any potential effect of the legislation at issue. (In the applicants’ submission, the rejection by the Conseil d’Etat of their preliminary reference request on the ground that the Pistre judgment concerned the free movement of goods and not, as in the present case, free establishment and the free circulation of services and capital, was devoid of justification.) The Court of Justice had subsequently, in the Guimont judgment of 5 December 2000 (C-448/98), confirmed the application of the Pistre case-law to national rules that were applicable “without distinction”, and had then extended that reasoning to the free movement of capital (see Reisch, 5 March 2002, C-515/99) and to the free movement of services (see a number of judgments delivered in 2005 and 2006: C-250/03, C-451/03, C-94/04 and C-202/04). Therefore, according to the applicants, under Community law as it stood, whenever national rules were applicable to Community nationals they created a situation which was not purely internal, and this was the case for Article 3 of Royal Decree no. 143, since it hindered the establishment in Belgium of anyone wishing to run a clinical biology laboratory. Moreover, nothing in the wording of that decree suggested that its application was confined to situations involving Belgians alone; neither did the law of 2005 amending the decree make any such distinction between Belgian and foreign nationals.", "The applicants observed that, in any event, there had been concrete extraneous elements in their situation that the Conseil d’Etat had unduly ignored: the capital invested by the first applicant in the Biorim laboratory had come from other member States, Luxembourg in particular; a company established under Luxembourg law was involved in its operation; Community nationals were the actual and potential users of its laboratory services.", "51. The refusal to make a preliminary reference concerning the application of Article 86 of the Treaty establishing the European Community, taken together with Articles 43, 49 and 56, was also arbitrary according to the applicants. They argued that the Conseil d’Etat had wrongly found in that connection that clinical biology laboratories could not qualify as undertakings to which Member States granted special or exclusive rights, within the meaning of Article 86, and had then applied the theory of the “ acte clair ” without showing that there was no reasonable doubt on this point.", "In the applicants’ submission, by reserving the right to operate clinical biology laboratories eligible for sickness insurance coverage to a given category of undertakings (run, in particular, by doctors, pharmacists and persons qualified in chemical sciences accredited to carry out medical tests), Royal Decree no. 143 did indeed grant special or exclusive rights to them within the meaning of Article 86 of the Treaty establishing the European Community. In dismissing that argument, the Conseil d’Etat had merely mentioned factors that had no relevance for the application of that notion (the fact the legislation did not itself designate the accredited laboratories, that the accreditation was not reserved for a limited number of laboratories, and that it could be obtained by any laboratory meeting the requisite conditions), and had not even begun to analyse what the notion specifically entailed. Under Community law, the factors to be taken into account in order to determine the existence of an exclusive or special right consisted in the granting of an advantage to certain undertakings that rendered the activity difficult to carry on for others, and in the creation, through a State-initiated measure, of hindrance to market access, in a non-transparent, discriminatory and disproportionate context. For the applicants, the Conseil d’Etat should at least have found that reasonable doubt existed as to the inapplicability of Article 86 of the Treaty in the present case.", "B. The Court’s assessment", "52. The Court first reiterates that the safeguards of Article 6 § 1, implying the full panoply of safeguards in any judicial procedure, are in principle stricter than, and absorb, those of Article 13 (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000 ‑ XI). Article 6 § 1 being applicable in the present case – a point that has not in fact been a matter of dispute between the parties –, this part of the applications should be examined under that provision alone.", "...", "2. Merits", "54. The Court reiterates that, under Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with Community law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see, mutatis mutandis, Waite and Kennedy, cited above, § 54; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 143, ECHR 2005 ‑ VI).", "55. That being said, the Court finds that the main question arising in the present case is whether the refusal by the Court of Cassation and the Conseil d’Etat to respond to the applicants’ request to refer to the Court of Justice of the European Communities (now known as the Court of Justice of the European Union), for a preliminary ruling on the interpretation of Community law, questions that they had submitted in the course of proceedings before those courts, entailed a violation of Article 6 § 1 of the Convention.", "56. The Court first observes that, under the third paragraph of Article 234 of the Treaty establishing the European Community (former Article 177 and, since 1 December 2009, Article 267 of the Treaty on the Functioning of the European Union), when a question concerning, in particular, the interpretation of the Treaty is raised in a case pending before a national court or tribunal against whose decisions there is no judicial remedy under national law – such as, in the present case, the Court of Cassation and the Conseil d’Etat –, that court or tribunal is required to bring the matter before the Court of Justice for a preliminary ruling.", "However, this obligation is not absolute. It transpires from the Cilfit case-law of the Court of Justice that it is for the national courts against whose decisions there is no judicial remedy under national law, like other national courts, to decide “whether a decision on a question of Community law is necessary to enable them to give judgment”. The Cilfit judgment states in this connection that, accordingly, they are not obliged to refer a question concerning the interpretation of Community law raised before them if they establish that the question “is irrelevant”, that “the Community provision in question has already been interpreted by the Court [of Justice]” or that “the correct application of Community law is so obvious as to leave no scope for any reasonable doubt” (see paragraph 34 above).", "57. The Court would further point out, firstly, that the Convention does not guarantee, as such, any right to have a case referred by a domestic court to another national or international authority for a preliminary ruling (see, in particular, Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 114, ECHR 2000-VII; Wynen v. Belgium, no. 32576/96, §§ 41-43, ECHR 2002-VIII; and Ernst and Others v. Belgium, no. 33400/96, § 74, 15 July 2003).", "Secondly, where, in a given legal system, according to other sources of law, a particular field of law may be interpreted only by a particular court and other courts are required to refer to that court all questions relating to that field, it is in accordance with the functioning of such a mechanism for the court to verify, before responding to a request for a preliminary reference, whether the question must be answered before it can determine the case before it (ibid.).", "58. The matter is not, however, unconnected to Article 6 § 1 of the Convention which, in establishing that “everyone is entitled to a ... hearing ... by [a] ... tribunal established by law”, also leaves to the competent court, in accordance with the applicable law, the task of hearing any legal questions that may arise in the course of proceedings.", "That aspect takes on particular significance in the jurisdictional context of the European Union. The purpose of implementing the third paragraph of Article 234 of the Treaty establishing the European Community (now Article 267 of the Treaty on the Functioning of the European Union) is, as the Court of Justice has pointed out, to ensure “the proper application and uniform interpretation of Community law in all the Member States”, and more particularly “to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law” (see paragraph 34 above).", "59. It should further be observed that the Court does not rule out the possibility that, where a preliminary reference mechanism exists, refusal by a domestic court to grant a request for such a referral may, in certain circumstances, infringe the fairness of proceedings – even if that court is not ruling in the last instance (see, among other authorities Predil Anstalt S.A. v. Italy (dec.), no. 31993/96, 8 June 1999, and Herma v. Germany (dec.), no. 54193/07, 8 December 2009) –, whether the preliminary ruling would be given by a domestic court (see Coëme and Others, Wynen, and Ernst and Others, cited above, same references) or a Community court (see, for example, Société Divagsa v. Spain, no. 20631/92, Commission decision of the 12 May 1993, Decisions and Reports (DR) 74; Desmots v. France (dec.), no. 41358/98, 23 March 1999; Dotta v. Italy (dec.), no. 38399/97, 7 September 1999; Moosbrugger v. Austria (dec.), no. 44861/98, 25 January 2000; John v. Germany (dec.), no. 15073/03, 13 February 2007; and the Predil Anstalt S.A. and Herma decisions, cited above). The same is true where the refusal proves arbitrary (ibid.), that is to say where there has been a refusal even though the applicable rules allow no exception to the principle of preliminary reference or no alternative thereto, where the refusal is based on reasons other than those provided for by the rules, and where the refusal has not been duly reasoned in accordance with those rules.", "60. Article 6 § 1 thus imposes, in this context, an obligation on domestic courts to give reasons, in the light of the applicable law, for any decisions in which they refuse to refer a preliminary question, especially where the applicable law allows for such a refusal only on an exceptional basis.", "61. Consequently, when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal has been duly accompanied by such reasoning. That being said, whilst this verification has to be made thoroughly, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law.", "62. In the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (Article 267 of the Treaty on the Functioning of the European Union), this means that national courts against whose decisions there is no remedy under national law, which refuse to refer to the Court of Justice a preliminary question on the interpretation of Community law that has been raised before them, are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the Court of Justice. They will thus be required, in accordance with the above-mentioned Cilfit case-law, to indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the Court of Justice, or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt.", "63. The Court observes that this obligation to give reasons has been fulfilled in the present case.", "64. Accordingly, before the Court of Cassation, the applicants argued that Article 3 of Royal Decree no. 143, on which their criminal conviction had been based, was incompatible with various provisions of Community law. They added that the Mons Court of Appeal had unduly upheld the authority of res judicata of the Brussels Court of Appeal’s judgment in so far as it had found that there was no incompatibility. They explained in this connection that elements of Community law emerging after that decision had revealed it to be erroneous. They requested the Court of Cassation in this context to refer the matter to the Luxembourg court for a preliminary ruling on the requisite solution to the conflict between the rule of the authority of res judicata and that of the primacy of Community law.", "The Court of Cassation rejected their request on the ground that one of the exceptions provided for in the above-cited Cilfit case-law came into play. More specifically, it found that the question whether the principle of the primacy of Community law should prevail over that of the authority of res judicata had already been settled by the Court of Justice, setting out comprehensive reasons in this connection with reference to the case-law of that court (see paragraph 22 above).", "65. Before the Conseil d’Etat, the company Biorim and the applicant asserted in particular that Article 3 of Royal Decree no. 143, on which the impugned decisions were based, was incompatible with Articles 43, 49 and 56 of the Treaty establishing the European Community, and with Article 86, taken together with Articles 82, 43, 49 or 56. They concluded that the decisions in question were devoid of admissible basis and therefore had to be annulled, and the applicant requested the Conseil d’Etat to refer preliminary questions to the Court of Justice in order to determine whether those Articles of the Treaty had to be interpreted as precluding the application of legislation containing the restrictions provided for in Article 3 of Royal Decree no. 143.", "The Conseil d’Etat rejected that request on the ground, like the Court of Cassation, that the exceptions provided for in the Cilfit case-law came into play. With demonstrative reasoning, it found that there was no reasonable doubt as to the inapplicability of Article 86 of the Treaty to the laboratories referred to in Article 3 of Royal Decree no. 143, and that an answer by the Court of Justice as to the interpretation of the other above-mentioned provisions of the Treaty “could not affect the outcome of the present dispute” (see paragraph 29 above).", "66. The Court acknowledges that the applicants challenged the interpretation of Community law adopted by the Court of Cassation and the Conseil d’Etat, which they regarded as erroneous, and set out detailed arguments in this connection (see paragraphs 47-48 and 50-51 above). However, as indicated previously, this is an area that falls outside the Court’s jurisdiction.", "As to the first applicant’s allegation that the Conseil d’Etat had shown disregard for the adversarial principle by failing to invite the parties to submit argument on the scope of the Community case-law on which it had relied, the Court will not take this into account in so far as, in any event, the allegation was made for the first time on 11 June 2009, that is to say, after the time-limit fixed by Article 35 § 1 of the Convention.", "67. In conclusion, having regard to the reasons given by the Court of Cassation and the Conseil d’Etat in support of their refusal to grant the applicants’ requests to refer to the Court of Justice preliminary questions on the interpretation of Community law that they had submitted in the course of the proceedings before those courts, and considering those proceedings as a whole, the Court finds that there has been no violation of the applicants’ right to a fair hearing within the meaning of Article 6 § 1 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1960 and lives in Marsala (Trapani).", "6. The applicant, who subsequently acquired Italian nationality, was at the relevant time a Tunisian national who had entered Italy on the basis of a lawful residence and work permit. He was employed by company A. and insured with the National Social Security Agency ( Istituto Nazionale della Previdenza Sociale – “the INPS ” ). His family was made up of his wife and their four minor children. His income for the year 1999 totalled 30, 655, 000 Italian lira (ITL – approximately 15, 832 euros (EUR)).", "7. On 24 May 2001 the applicant lodged an application with the Marsala District Court, acting as an employment tribunal, seeking payment of the family allowance ( assegno per nucleo familiare ) provided for by section 65 of Law no. 448 of 1998. Under the terms of that provision, the allowance in question was paid by the INPS to families made up of Italian nationals living in Italy with at least three minor children, whose annual income was below the amounts set out in the table appended to Legislative Decree no. 109 of 31 March 1998 ( in this instance, the amount applicable to families with five members, namely ITL 36 million ( approximately EUR 18,592 ) ).", "8. The applicant submitted that even though he did not have Italian nationality as required by Law no. 448 of 1998, the allowance was nevertheless due to him under the association agreement between the European Union and Tunisia – known as the Euro-Mediterranean Agreement – which had been ratified by Italy (Law no. 35 of 3 February 1997). Article 65 of the Agreement provides as follows:", "“1. Subject to the provisions of the following paragraphs, workers of Tunisian nationality and any members of their families living with them shall enjoy, in the field of social security, treatment free from any discrimination based on nationality relative to nationals of the Member States in which they are employed.", "The concept of social security [1] shall cover the branches of social security dealing with sickness and maternity benefits, invalidity, old-age and survivors ’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits.", "These provisions shall not, however, cause the other coordination rules provided for in Community legislation based on Article 51 of the EC Treaty to apply, except under the conditions set out in Article 67 of this Agreement.", "2. All periods of insurance, employment or residence completed by such workers in the various Member States shall be added together for the purpose of pensions and annuities in respect of old age, invalidity and survivors ’ benefits and family, sickness and maternity benefits and also for that of medical care for the workers and for members of their families resident in the Community.", "3. The workers in question shall receive family allowances for members of their families who are resident in the Community.", "4. The workers in question shall be able to transfer freely to Tunisia, at the rates applied by virtue of the legislation of the debtor Member State or States, any pensions or annuities in respect of old age, survivor status, industrial accident or occupational disease, or of invalidity resulting from industrial accident or occupational disease, except in the case of special non-contributory benefits.", "5. Tunisia shall accord to workers who are nationals of a Member State and employed in its territory, and to the members of their families, treatment similar to that specified in paragraphs 1, 3 and 4.”", "9. In a judgment of 10 April 2002 the Marsala District Court rejected the applicant ’ s application.", "10. The applicant appealed. He requested, among other things, that a question be referred to the Court of Justice of the European Union ( “ the CJEU ” ) for a preliminary ruling as to whether, under Article 65 of the Euro ‑ Mediterranean Agreement, a Tunisian worker could be refused the family allowance provided for by section 65 of Law no. 448 of 1998.", "11. In a judgment of 21 October 20 04 the Palermo Court of Appeal dismissed the applicant ’ s appeal. It observed that, as the allowance in question was based solely on the income and family situation of the recipients, it fell within the sphere of social assistance ( assistenza sociale ). The allowance had initially been intended only for Italian citizens and had subsequently been extended to all European Union nationals. However, the Euro-Mediterranean Agreement related only to social - security benefits ( prestazioni previdenziali ) and was therefore not applicable to the family allowance provided for by section 65 of Law no. 448 of 1998.", "12. The applicant lodged an appeal on points of law, reiterating his request for a preliminary ruling to be sought from the CJEU.", "13. In a judgment of 15 April 2008 which was deposited with the registry on 29 September 2008, the Court of Cassation dismissed the appeal.", "14. In its reasons, the Court of Cassation observed first of all that Article 64(1) and (2) of the Euro-Mediterranean Agreement provided, inter alia, as follows:", "“1. The treatment accorded by each Member State to workers of Tunisian nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals.", "2. All Tunisian workers allowed to undertake paid employment in the territory of a Member State on a temporary basis shall be covered by the provisions of paragraph 1 with regard to working conditions and remuneration.”", "15. Noting that the text in question referred explicitly to employment relationships and the elements that comprised them, the Court of Cassation inferred from this that it applied only to social - security benefits and not to social-assistance benefits of the kind claimed by the applicant, to which Tunisian citizens resident in Italy were not entitled. According to the Court of Cassation, this interpretation was confirmed by Article 65 (1) and ( 2 ) of the Euro-Mediterranean Agreement, which referred in particular to “sickness and maternity benefits, invalidity, old-age and survivors ’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits”. The Court of Cassation stressed that its interpretation was not based solely on the reference in the text to “ social security ” ( previdenza sociale ) but, as indicated by the CJEU, on the elements comprising each benefit.", "16. This judgment was served on the applicant on 2 October 2008." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "17. The applicant alleged that the Court of Cassation had ignored his request for a question to be referred to the CJEU for a preliminary ruling concerning the interpretation of the Euro-Mediterranean Agreement.", "He relied on Article 6 § 1 of the Convention, which, in its relevant parts, provides:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”.", "18. The Government contested the applicant ’ s argument.", "A. Admissibility", "1. The Government ’ s preliminary objection that the application was out of time", "19. The Government submitted at the outset that the application was out of time, observing that it had not been lodged until 2 April 2009, whereas the judgment of the Court of Cassation had been deposited with the registry on 29 September 2008 (see paragraph 13 above).", "20. The applicant submitted in reply that his application had been lodged on 28 March 2009, the date on which he had sent a copy to the Court ’ s Registry by fax and by post. He pointed out that the judgment of the Court of Cassation had not been served on him until 2 October 2008 (see paragraph 16 above). It was the latter date that should be taken as the starting point of the six-month period.", "21. The Court notes that on 28 March 2009 the applicant sent a copy of the application form, duly completed, by fax to the Registry, which received it the same day. A further copy was sent by post and reached the Registry of the Court on 2 April 2009. The application should therefore be considered to have been lodged on 28 March 2009. Accordingly, even supposing that, as the Government argued, the starting point for the six-month period provided for in Article 35 § 1 of the Convention should be 29 September 2008, the six-month time-limit was in any event complied with.", "22. It follows that the Government ’ s objection that the application was out of time cannot be upheld.", "2. The Government ’ s objection of failure to exhaust domestic remedies", "23. In their additional observations of 17 January 2014 the Government argued for the first time that the applicant had failed to exhaust domestic remedies. If the Court of Cassation had misapplied the “ acte clair ” doctrine and failed in its duty to refer a question to the CJEU for a preliminary ruling, the applicant could have brought a civil action to establish non ‑ contractual liability on the part of the State, as advocated by the CJEU in its judgments in Kobler (30 September 2003, Case C-224/01) and Traghetti del Mediterraneo (13 June 2006, Case C-173/03). Actions of this kind were routinely examined by the domestic courts.", "24. The Court points out that according to Rule 55 of the Rules of Court any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). In the present case the Government did not raise any objection as to failure to exhaust domestic remedies in their observations of 9 October 2013 on admissibility and the merits (in which, on the contrary, they stated that the judgment of the Court of Cassation “constitute [d] exhaustion of domestic remedies”). The fact that the applicant had not brought a civil action to establish non-contractual liability on the part of the State was first mentioned in their additional observations on the merits and on just satisfaction. The Government did not provide any explanation for this delay and the Court cannot discern any exceptional circumstances that might exempt them from their obligation to raise any plea of inadmissibility in good time.", "25. It follows that the Government are estopped from raising the objection of non-exhaustion of domestic remedies.", "3. Other grounds of inadmissibility", "26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other ground. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a) The applicant", "27. The applicant stressed that, in so far as it had been called upon to rule as the court of last instance, the Court of Cassation had been required to request a preliminary ruling where there was doubt as to the interpretation of Community law. The applicant submitted that he had cited the case-law in which the CJEU had recognised the direct applicability of the principle of non-discrimination in the field of social security, contained in the agreement between the European Union and the Kingdom of Morocco (and in other agreements between the European Union and the Maghreb countries – Kziber, Case C-18/90, judgment of 31 January 1991). In the applicant ’ s view, that line of case-law, initially developed in the context of the cooperation agreements, was “ fully transposable ” to the relevant provisions of the association agreements. The CJEU had also added that its interpretation was compatible with the requirements of Article 14 of the Convention and Article 1 of Protocol No. 1. Furthermore, the interpretation of the concept of “ social security ” by the CJEU was sufficiently broad to encompass social-assistance benefits. In these circumstances, the applicant argued, it had not been open to the Court of Cassation to ignore the request to refer the question for a preliminary ruling.", "28. The applicant added that the Court of Cassation had given no reasons for refusing to seek a preliminary ruling and had misunderstood the “ personal ” and “ material ” aspects of the non-discrimination principle, which were two quite separate concepts. The allowance in question had been placed in the “ social assistance ” category solely on the basis of domestic law, without reference to the criteria established by the CJEU ( namely the statutory nature and dual function of the benefit and its connection to one of the risks referred to in Article 4(1) of Regulation No 1408/71). Hence, the “ Community ” dimension of that categorisation operation had been overlooked. In the applicant ’ s submission, it was clear from the European legislation and the case - law of the CJEU that State ‑ funded “ non-contributory ” benefits could not be automatically excluded from the scope of the non - discrimination principle established by the Agreement (the applicant cited, by way of example, the cases of Yousfi, Case C-58/93, judgment of 20 April 1994, concerning the granting of a disability allowance; Commission v. Greece, Case C-185/96, judgment of 29 October 1998, concerning various categories of benefits for large families; and Hughes, Case C-78/91, judgment of 16 July 1992, on the subject of the “ family credit ” in the United Kingdom ). On the basis of his references to that case-law, the Court of Cassation should either, of its own accord, have included the allowance he was claiming within the scope of Regulation no. 1408/71, by analogy, or referred the question to the CJEU, which had not yet ruled on the nature of this particular allowance.", "29. The applicant also noted that section 13 of Law no. 97 of 6 August 2013 (which entered into force on 4 September 2013) had provided for the allowance introduced by section 65 of Law no. 448 of 19 98 to be extended to third - country nationals in possession of a long-term residence permit. In judgment no. 133 of 2013 the Constitutional Court had found that the requirement to have been resident for five years in the region concerned in order to qualify for a regional allowance of a similar nature was unreasonable and incompatible with the principle of equality before the law (the applicant also cited judgment no. 222 of 2013).", "(a) The Government", "30. The Government submitted that the Court of Cassation had expressly examined the scope of the Euro-Mediterranean Agreement and had found that the allowance for families with at least three minor children could not come within the scope of the concept of social security, even in the broad sense in which it was construed at Community level. The Court of Cassation had therefore considered the provision it had been asked to interpret to be clear; accordingly, it had fulfilled its obligations under Article 6 § 1 of the Convention.", "2. The Court ’ s assessment", "31. The Court points out that in the case of Vergauwen and Others v. Belgium (( dec. ), no. 4832/04, §§ 89-90, 10 April 2012) it set forth the following principles:", "– Article 6 § 1 requires the domestic courts to give reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling;", "– when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal has been duly accompanied by such reasoning;", "– whilst this verification has to be made thoroughly, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law;", "– in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (current Article 267 of the Treaty on the Functioning of the European Union (TFEU) ), this means that national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of European Union law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU. They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.", "32. In the present case the applicant requested the Court of Cassation to seek a preliminary ruling from the CJEU as to whether, under Article 65 of the Euro-Mediterranean Agreement, a Tunisian worker could be refused the family allowance provided for by section 65 of Law no. 448 of 1998 (see paragraphs 10 and 12 above). As no judicial appeal lies against its decisions under domestic law, the Court of Cassation was under a duty to give reasons for its refusal to request a preliminary ruling, in the light of the exceptions provided for by the case-law of the CJEU.", "33. The Court has examined the Court of Cassation judgment of 15 April 2008 and found no reference to the applicant ’ s request for a preliminary ruling to be sought or to the reasons why the court considered that the question raised did not warrant referral to the CJEU. It is therefore not clear from the reasoning of the impugned judgment whether that question was considered not to be relevant or to relate to a provision which was clear or had already been interpreted by the CJEU, or whether it was simply ignored (see, conversely, Vergauwen and Others, cited above, § 91, where the Court found that the Belgian Constitutional Court had duly provided reasons for refusing to refer questions for a preliminary ruling). The Court observes in this connection that the reasoning of the Court of Cassation contains no reference to the case-law of the CJEU.", "34. That finding is sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "35. The applicant considered that he had been the victim of discrimination based on his nationality when it came to claiming entitlement to the allowance provided for by section 65 of Law no. 448 of 1998.", "He relied on Articles 8 and 14 of the Convention, which provide:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "1. The parties ’ submissions", "( a ) The applicant", "36. The applicant referred to the Court ’ s case-law (citing, in particular, the following judgments: Gaygusuz v. Austria, 16 September 1996, Reports of Judgments and Decisions 1996-IV; Petrovic v. Austria, 27 March 1998, Reports 1998-II; Niedzwiecki v. Germany, no. 58453/00, 25 October 2005; Okpisz v. Germany, no. 59140/00, 25 October 2005; Weller v. Hungary, no. 44399/05, 31 March 2009; Fawsie v. Greece, no. 40080/07, 28 October 2010; and Saidoun v. Greece, no. 40083/07, 28 October 2010 ). He submitted that the allowance in question gave practical effect to the right of large families on low incomes to a financial contribution towards maintaining family life. Its introduction had resulted from a deliberate act on the part of the State based on the realisation that large families faced higher costs, linked mainly to their children ’ s upkeep and education.", "The applicant disputed the Government ’ s argument that the allowance in question fell into the category of social assistance. Basing his assertions on the changes made to the system of family allowances in Italy, he submitted that they were actually aimed at improving the specific benefits paid to workers. The Court had repeatedly ruled that similar “ welfare benefits ” were a means by which States could “ demonstrate their respect for family life within the meaning of Article 8 ” and thus came within the ambit of that provision or of Article 1 of Protocol No. 1, without this being dependent on the prior payment of contributions by the recipient (the applicant referred, in particular, to Stec and Others v. the United Kingdom [GC] ( dec. ), nos. 65731/01 and 65900/01, §§ 49-56, ECHR 2005-X).", "37. The applicant noted that the sole obstacle to granting him the allowance had been his nationality. This amounted to discrimination compared with Italian citizens in a comparable financial and family situation to his own.", "( b) The Government", "38. The Government took the view that the subject matter of the application did not come within the scope of Article 8 of the Convention, as the social-assistance benefit claimed by the applicant could not be characterised as “primary” assistance.", "2. The Court ’ s assessment", "( a) Applicability of Article 14 of the Convention taken in conjunction with Article 8", "39. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports 1997-I; Petrovic, cited above, § 22; and Zarb Adami v. Malta, no. 17209/02, § 42, ECHR 2006-VIII).", "40. The Court considers first of all that the authorities ’ refusal to grant the applicant the allowance in issue was not aimed at breaking up his family, nor did it have such an effect, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question ( see Petrovic, cited above, § 26; Zeïbek v. Greece, no. 46368/06, § 32, 9 July 2009; and Fawsie, cited above, § 27).", "41. Nevertheless, the Court has previously held that, by granting benefits to large families, States are able to “ demonstrate their respect for family life ” within the meaning of Article 8 of the Convention and that such benefits therefore come within the ambit of Article 8 ( see Okpisz, cited above, § 32; Niedzwiecki, cited above, § 31; Fawsie, cited above, § 28; and Saidoun, cited above, § 29; see also, mutatis mutandis, Petrovic, cited above, §§ 27-29, in the context of a parental leave allowance, and Weller, cited above, § 29, in the context of maternity benefit ). The subject matter of the application thus falls within the ambit of Article 8 of the Convention. Accordingly, Article 14 is applicable.", "( b) Other grounds of inadmissibility", "42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other ground. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a) The applicant", "43. The applicant observed that the Government sought to justify the difference in treatment between himself and European Union nationals and/or refugees by reference to the categorisation of the allowance (which allegedly fell into the category of “ social assistance ” ) and to the financial cost of extending the allowance to new categories of individuals. In his view, these factors did not provide sufficient justification from the standpoint of the Convention and the case-law of the Italian Constitutional Court.", "The applicant conceded that in the case of Ponomaryovi v. Bulgaria ( no. 5335/05, § 54, ECHR 2011), the Court had found that the preferential treatment of nationals of Member States of the European Union was based on an objective and reasonable justification because the Union formed a special legal order, which had, moreover, established its own citizenship. However, it was necessary to take account of the fact that non-Community nationals also made an active contribution to the country ’ s resources, in particular through their additional contribution to social - insurance schemes and the fact that they were subject to income tax. The applicant added that the discrimination to which he had been subjected had been based on his nationality and not on his immigration status as conferred by law ( he cited, conversely, Bah v. the United Kingdom, no. 56328/07, ECHR 2011). Moreover, it had to be borne in mind that Directive 2003/109/EC was aimed at ensuring the integration of third-country nationals who were long-term residents of a Member State.", "( b) The Government", "44. The Government submitted that the decision not to extend entitlement to the allowance in question had been made purely for budgetary reasons and not on discriminatory grounds.", "2. The Court ’ s assessment", "( b) General principles", "45. According to the Court ’ s settled case-law, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in comparable situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013). The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94).", "46. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see X and Others v. Austria, cited above, § 98, and Vallianatos and Others, cited above, § 76). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention ’ s requirements rests with the Court. A wide margin is usually allowed to the State when it comes to general measures of economic or social strategy ( see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008; Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010; Şerife Yiğit v. Turkey [GC], no. 3976/05, § 70, 2 November 2010; and Stummer v. Austria [GC], no. 37452/02, § 89, ECHR 2011). However, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention ( see Gaygusuz, cited above, § 42; Koua Poirrez v. France, no. 40892/98, § 46, ECHR 2003 - X; Andrejeva v. Latvia [GC], no. 55707/00, § 87, ECHR 2009; and Ponomaryovi, cited above, § 52).", "47. Since the Convention is first and foremost a system for the protection of human rights, the Court must also have regard to the changing conditions within Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved ( see Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012, and Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013).", "( b) Whether there was a difference in treatment between persons in similar situations", "48. In the Court ’ s view, it is beyond doubt that the applicant was treated differently compared with workers who were nationals of the European Union and who, like him, had large families. Unlike them, the applicant was not entitled to the family allowance provided for by section 65 of Law no. 448 of 1998. Moreover, this was not disputed by the Government.", "49. The Court further observes that the refusal to grant the allowance was based exclusively on the nationality of the applicant, who at the time was not a national of a European Union Member State. It was not alleged that the applicant did not satisfy the other statutory conditions for entitlement to the benefit in question. Hence, it is clear that he was treated less favourably than others in a relevantly similar situation, on account of a personal characteristic ( see, mutatis mutandis, Ponomaryovi, cited above, § 50).", "( c) Whether there was an objective and reasonable justification", "50. The Court notes that in several cases cited above which were similar to the present case ( Niedzwiecki; Okpisz; Weller; Fawsie; and Saidoun ), and which also concerned welfare benefits for the families of non-nationals, it found a violation of Article 14 taken in conjunction with Article 8 on the ground that the authorities had not provided any reasonable justification for the practice of excluding non-nationals lawfully settled in the countries concerned from entitlement to certain allowances on the sole basis of their nationality.", "51. In particular, in the cases of Fawsie and Saidoun, cited above, which like the present case concerned allowances for large families, the Court ’ s finding of a violation was based especially on the fact that the applicants and the members of their families had been granted political refugee status and that the criterion chosen by the Government (which had focused mainly on whether the persons concerned were Greek nationals or of Greek origin) in order to determine eligibility for the allowance did not appear to be relevant in the light of the legitimate aim pursued (namely to deal with the country ’ s demographic situation ).", "52. The Court is of the view that similar considerations apply, mutatis mutandis, in the present case. It notes in that connection that at the relevant time the applicant had been in possession of a lawful residence and work permit in Italy and had been insured with the INPS (see paragraph 6 above). He paid contributions to that insurance agency in the same capacity and on the same basis as workers who were European Union nationals ( see, mutatis mutandis, Gaygusuz, cited above, § 46). He was not an alien residing in the country for a short period or in breach of the immigration legislation. Hence, he did not belong to the category of persons who, as a rule, do not contribute to the funding of public services and in relation to whom a State may have legitimate reasons for curtailing the use of resource-hungry public services such as social insurance schemes, public benefits and health care ( see, mutatis mutandis, Ponomaryovi, cited above, § 54).", "53. As to the “ budgetary reasons ” advanced by the Government (see paragraph 44 above), the Court recognises that protection of the State ’ s budgetary interests constitutes a legitimate aim of the distinction at issue. Nevertheless, that aim cannot by itself justify the difference in treatment complained of. It remains to be determined whether there was a reasonable relationship of proportionality between the above-mentioned legitimate aim and the means employed in the present case. The Court points out in that connection that the national authorities ’ refusal to grant the family allowance to the applicant was based solely on the fact that he was not a national of a European Union Member State. It is not disputed that a citizen of such a State in the same position as the applicant would receive the allowance in question. Nationality was therefore the sole criterion for the distinction complained of. However, the Court reiterates that very weighty reasons would have to be put forward before it could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention (see paragraph 46 above). In these circumstances, and notwithstanding the wide margin of appreciation left to the national authorities in the field of social security, the arguments submitted by the Government are not sufficient to satisfy the Court that there was a reasonable relationship of proportionality in the instant case that would render the impugned distinction compatible with the requirements of Article 14 of the Convention ( see, mutatis mutandis, Andrejeva, cited above, §§ 86 ‑ 89).", "( d) Conclusion", "54. In view of the foregoing, the justification advanced by the Government does not appear reasonable and the difference in treatment that has been established is thus discriminatory for the purposes of Article 14 of the Convention. There has therefore been a violation of Article 14 taken in conjunction with Article 8 of the Convention", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "55. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "56. The applicant claimed 9, 416. 05 euros ( EUR ) in respect of pecuniary damage. This amount corresponded to the unpaid allowances for the period 1999 to 2004 ( EUR 8, 016 .05 ), plus statutory interest ( EUR 1 ,400 ).", "57. He also requested that an award be made for non-pecuniary damage, but did not specify the amount.", "58. The Government did not submit any observations on this point.", "59. The Court observes that it found a violation of Article 14 of the Convention taken in conjunction with Article 8 on the ground that the refusal to grant the applicant the family allowance provided for in section 65 of Law no. 448 of 1998 amounted to discrimination on the basis of nationality. Accordingly, the pecuniary damage sustained by the applicant corresponds to the amount of the unpaid allowances, totalling EUR 8,016.05, a figure not contested by the Government. As statutory interest must be added to this amount, the Court awards the applicant the amount claimed, that is to say, EUR 9,416.05.", "60. The Court further considers that the applicant undoubtedly suffered non-pecuniary damage. In view of the information in its possession, it awards the applicant the sum of EUR 10,000 under this head.", "B. Costs and expenses", "61. The applicant did not submit a claim for reimbursement of the costs and expenses incurred before the Court or the domestic courts. Accordingly, the Court considers that there is no call to award him any sum on that account.", "C. Default interest", "62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1968 and lives in Apeldoorn.", "8. In a judgment of 29 October 2008, the Zutphen Regional Court ( rechtbank ) convicted the applicant of the transportation of 2, 800 grams of heroin and of seven counts of people trafficking ( mensensmokkel ) as defined in Article 197a of the Criminal Code ( Wetboek van Strafrecht ), committed jointly with other perpetrators. It sentenced him to a partially suspended term of 40 months ’ imprisonment.", "9. Both the applicant and the prosecution appealed against the Regional Court ’ s judgment.", "10. On 19 July 2011 the Arnhem Court of Appeal ( gerechtshof ) gave its judgment, upholding the conviction for the offence of transporting heroin and also of four counts of people trafficking, and acquitting him on the three other counts. It sentenced him to 40 months ’ imprisonment less the time spent in pre-trial detention. Based on the evidence submitted, the Court of Appeal found established that the applicant and his co-perpetrators had, for purposes of financial gain, between 10 November 2006 and 17 January 2007 facilitated the unauthorised residence of a total of 20 Iraqi migrants in the Netherlands, Germany and Denmark.", "11. The applicant lodged an appeal in cassation ( cassatie ), the scope of which is limited to procedural conformity and points of law, with the Supreme Court ( Hoge Raad ). In his written grounds of appeal of 8 August 2013, the applicant raised, inter alia, a complaint regarding the four counts of people trafficking of which he had been convicted by the Court of Appeal. The applicant contended that the Court of Appeal had convicted him of facilitation of unauthorised “residence”, as defined in Article 197a § 2 of the Criminal Code, whereas the evidence relied on by the Court of Appeal to uphold that conviction did not prove that the Iraqi migrants had had “residence” in the Netherlands, Germany or Denmark. Instead, the evidence demonstrated that the applicant had organised and financed the Iraqi migrants ’ transportation to Denmark via the Netherlands and Germany, which had been intercepted on each occasion in Germany. As the migrants ’ stay in the Netherlands and Germany had only been brief and transitory, and given that they had never even entered Denmark, there was, according to the applicant, no proof of “residence” in those countries. In that regard, the applicant referred to European Union law, namely Council Directive 2002/90/EG of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (hereinafter “the Directive”) and Council Framework Decision 2002/946/JBZ of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (hereinafter “the Framework Decision”). Submitting that Article 197a of the Criminal Code had been amended in order to implement the Directive, the applicant argued that the notion of the facilitation of unauthorised “residence” within the meaning of Article 197a § 2 should be understood as entailing a long-term stay, to be distinguished from “transit” or “entry” as defined in the first paragraph of Article 197a, which had been added to Article 197a when the Directive was implemented. The applicant ’ s grounds of appeal in cassation did not include a request that the Supreme Court put a question to the CJEU for the purpose of obtaining a preliminary ruling.", "12. In his advisory opinion of 10 December 2013, the Advocate General ( advocaat-generaal ) to the Supreme Court expressed his view that the applicant ’ s appeal should be dismissed with the exception of the first of the grounds of the appeal, which pertained to the length of the proceedings: the duration of the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention, for which a reduction of sentence was to be applied. With regard to the applicant ’ s complaint that the evidence did not show that there had been any “residence” of the migrants in the countries at issue, the Advocate General was of the opinion that Article 197a § 2 of the Criminal Code called for a broad interpretation of “residence”, as had been the case prior to the implementation of the Directive and the Framework Decision. Since that implementation was intended to broaden the scope of Article 197a of the Criminal Code, the second paragraph of that provision retained its broad meaning of “residence”, thereby encompassing “transit”. The separate penalisation in the first paragraph of Article 197a of the facilitation of unauthorised “transit and entry” did not change the broad scope of paragraph 2. The Advocate General thus concluded that the applicant ’ s complaint in this matter should be dismissed.", "13. On 24 December 2013, the applicant submitted written comments in reply to the Advocate General ’ s advisory opinion ( a so-called “Borgers letter” [1] ) in which he made a tentative request for questions to be referred to the CJEU for a preliminary ruling about the interpretation of “residence”, “entry” and “transit” within the context of the Directive and whether the Directive contained minimum rules or constituted a general framework of terms, if the Supreme Court were to concur with the Advocate General.", "14. On 4 March 2014 the Supreme Court gave its judgment, which read:", "“[the applicant ’ s counsel ] have submitted written grounds of appeal. That document is annexed to this judgment, of which it is a component part.", "The Advocate General [ ... ] has advised that the impugned judgment be quashed − but only as regards the prison sentence imposed, reducing it due to the violation of the right to adjudication within a reasonable time − and that the remainder of the appeal be dismissed.", "Counsel [for the applicant] have submitted a written reply. ”", "15. The Supreme Court went on to hold that the applicant ’ s complaint that the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention was well-founded and that the sentence imposed on the applicant should be reduced as a consequence thereof. The Supreme Court further considered:", "“ 4. Assessment of the remaining grievances", "The grievances cannot lead to cassation [of the impugned judgment] ( de middelen kunnen niet to cassatie leiden ). Based on section 81 (1) of the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ), this requires no further reasoning as the grievances do not give rise to the need for a determination of legal issues in the interests of legal uniformity or legal development. ”", "16. The Supreme Court thus quashed the Court of Appeal ’ s judgment as regards the imposed sentence, reduced the sentence to 34 months ’ imprisonment, and dismissed the remainder of the grounds of appeal. No further appeal lay against the Supreme Court ’ s judgment." ]

[ "II. RELEVANT DOMESTIC AND EUROPEAN LAW", "A. The Judiciary (Organisation) Act", "1. Section 80a of the Judiciary (Organisation) Act", "17. Section 80a of the Judiciary (Organisation) Act entered into force on 1 July 2012. It provides as follows (references to other domestic legislation omitted):", "“1. The Supreme Court may, after having taken cognisance of the advisory opinion of the Procurator General (gehoord de procureur-generaal ), declare an appeal in cassation inadmissible if the complaints raised do not justify an examination in cassation proceedings (de aangevoerde klachten geen behandeling in cassatie rechtvaardigen), because the appellant party obviously has insufficient interest in the cassation appeal (klaarblijkelijk onvoldoende belang heeft bij het cassatieberoep) or because the complaints obviously cannot succeed (klaarblijkelijk niet tot cassatie kunnen leiden).", "2. The Supreme Court shall not take a decision as referred to in the first paragraph without first having taken cognisance of:", "a. [in civil cases:] the summons or request [introducing the cassation appeal] ... and the memorandum in reply (conclusie van antwoord) or the statement of defence (verweerschrift), if submitted;", "b. [in criminal cases:] the written statement of the grounds of the cassation appeal (de schriftuur, houdende de middelen van cassatie) ...; or, as the case may be,", "c. [in tax cases:] the written statement introducing the cassation appeal (het beroepschrift waarbij beroep in cassatie wordt ingesteld) ... and the statement of defence, if submitted.", "3. The cassation appeal shall be considered and decided by three members of a multi-judge Chamber (meervoudige kamer), one of whom shall act as president.", "4. If the Supreme Court applies the first paragraph, it may, in stating the grounds for its decision, limit itself to that finding.”", "2. Section 81 of the Judiciary (Organisation) Act", "18. Section 81 of the Judiciary (Organisation) Act reads:", "“ 1. If the Supreme Court considers that a complaint does not constitute grounds for overturning the impugned judgment and does not give rise to the need for a determination of legal issues in the interests of legal uniformity and legal development, it may, in giving reasons for its decision on such complaint, limit itself to that finding.", "2. The appeal in cassation shall be considered and determined by three members of a multi-judge Chamber (meervoudige kamer), one of whom shall act as president. ”", "3. Relevant case-law", "19. In a judgment of 11 September 2012 (ECLI:NL:HR:2012:BX0129) the Supreme Court clarified its understanding of sections 80a and 81 of the Judiciary (Organisation) Act as applicable in criminal cases, which reads, as far as relevant to the present case:", "“2.1.2. The explanatory memorandum ( memorie van toelichting ) to the Bill that led to this Act (Parliamentary Documents, Lower House of Parliament ( Kamerstukken II ) 2010/11, 32 576, no. 3), includes the following:", "‘ 1. Introduction", "Aim pursued by the Bill", "This Bill aims to strengthen the role of the cassation procedure ( versterking van de cassatierechtspraak ) by establishing different and new requirements for lawyers who act as representatives before the Supreme Court and by introducing the possibility for the Supreme Court to declare inadmissible a cassation appeal at the beginning of the procedure. The Bill is intended to enable the Supreme Court to concentrate on its core tasks as a court of cassation. The adequate execution of these core tasks is under pressure as a result of cassation appeals being lodged in cases that do not lend themselves to a review in cassation, and because certain issues about which it would be desirable for the Supreme Court itself to pronounce do not reach the Supreme Court in time or at all. The establishment of quality requirements for counsel is aimed at ensuring that cassation appeals are accompanied by statements of grounds of appeal that are of decent quality.", "...", "Accelerated inadmissibility", "Another measure [in addition to establishing new quality requirements for legal representatives] is the introduction of a mechanism for disposing of cases that goes beyond that of the current section 81 of the Judiciary (Organisation) Act. Section 81 of the Judiciary (Organisation) Act enables the Supreme Court to limit the reasoning of the rejection of a cassation grievance to the finding that the complaint raised therein “does not constitute grounds for overturning the impugned judgment and does not give rise to the need to determine legal issues in the interests of legal uniformity and legal development”.", "Section 81 of the Judiciary (Organisation) Act has in recent years played an important part in keeping the workload of the Supreme Court manageable. The Supreme Court now applies this provision in approximately half of its cases. However, the limits of its application are discernible. Moreover, section 81 is applied only at the end of cassation proceedings and, (invariably, in civil and criminal cases) after an advisory opinion from the Procurator General. However, the possibility of rejecting cases that have no prospect of success at an earlier stage of the proceedings and in a simple manner would constitute a considerable alleviation for the parties to the proceedings and the Supreme Court alike. ...", "Pursuant to Article 118 § 2 of the Constitution ( Grondwet ), the Supreme Court is charged, in the cases and within the limits prescribed by law, with overturning judicial decisions that are contrary to the law ( de cassatie van uitspraken wegens schending van het recht ). The Bill explicitly does not seek to change the Supreme Court ’ s task. Nor does [ the Bill] involve a leave-to-appeal system in which a court has to give prior permission before a legal remedy can be used. The freedom of parties to lodge cassation appeals remains unimpaired. What is new is the latitude given to the Supreme Court to declare an appeal inadmissible on the (substantive) finding that the grounds of appeal submitted do not justify a detailed review in cassation proceedings ( geen nadere beoordeling in cassatie rechtvaardigen ). The appeal may, for instance, be manifestly ill-founded ( klaarblijkelijke ongegrondheid ), because the impugned ruling rests on two grounds, each of which is capable of supporting the decision by itself but only one of which is challenged, or there may be a lack of interest, for example because a ground for the appeal, although well-founded, cannot, after the overturning of the impugned ruling, lead to an outcome other than the one to which that ruling had led. ’", "...", "2.2.2. Section 80a of the Judiciary (Organisation) Act does, however, bring about a change in cases in which an omission hitherto necessitated the overturning of the impugned ruling, even though the person bringing the cassation appeal did not actually have a sufficient interest − deserving to be respected in law ( niet voldoende in rechte te respecteren belang ) − in such an overturning and a possible rehearing after remittal or referral of the case. In this context, it is to be noted that the mere possibility – regardless of the reason for which the appeal is considered well-founded – that in that situation a different, and possibly more advantageous, ruling could be given (for example, a reduction of sentence pursuant to the length of the proceedings before and after remittal or referral of the case, or in relation to changed personal circumstances) cannot be considered an interest that deserves to be upheld in law in cassation proceedings.", "...", "Consequences for the content of the statement of grounds of appeal in cassation and the ‘ Borgers letter ’", "2.6.1. Pursuant to the second paragraph of section 80a of the Judiciary (Organisation) Act the Supreme Court will not issue a decision of the kind referred to in the first paragraph without first having taken cognisance of the written statement of grounds of appeal in cassation ... If the ‘ selection at the gate ’ ( selectie aan de poort ) which the legislature has introduced by way of section 80a of the Judiciary (Organisation) Act is to achieve its intended aim, then the lawyer who acts as legal representative, or the public prosecution service as the case may be, can reasonably be expected – in the words of the explanatory memorandum – to submit ‘ statements of grounds of appeal ... that are of decent quality ’.", "...", "2.6.3. Section 80a of the Judiciary (Organisation) Act provides that in the cases referred to therein, the Supreme Court may declare the cassation appeal inadmissible after having heard the Procurator General. It must be presumed that the Procurator General will express his point of view as to the applicability of section 80a of the Judiciary (Organisation) Act on a hearing day set by the judge in charge of the Supreme Court ’ s list of cases ( rolraadsheer ) and also that if the Procurator General is of the opinion that the case lends itself to the application of section 80a of the Judiciary (Organisation) Act, he will express this point of view in writing. In that case, counsel for the person by whom or on whose behalf the appeal has been lodged may respond in writing to that point of view within a period of two weeks thereafter.”", "20. In its judgment of 26 May 2015 (ECLI:NL:HR:2015:1332) the Supreme Court explained its practice as regards the application of sections 80a and 81 of the Judiciary (Organisation) Act in relation to a request for referral to the CJEU made in that case. It held, as far as relevant to the present case:", "“2.1. The Supreme Court finds that the complaints raised do not justify an examination in cassation proceedings because the appellant party obviously has insufficient interest in the cassation appeal or because the complaints obviously cannot succeed. The Supreme Court will therefore – based on section 80a of the Judiciary (Organisation) Act and after having taken cognisance of the advisory opinion of the Procurator General − declare the appeal in cassation inadmissible.", "2 .2.1. It is inherent therein ( daarin ligt besloten) that the request contained in the written grounds of appeal to put a preliminary question to the Court of Justice of the European Union cannot be granted (voor inwilliging vatbaar). The reasons are as follows.", "2. 2.2. A judgment in which the appeal in cassation is declared inadmissible or dismissed by application of and with reference to section 80a or 81 of the Judiciary (Organisation) Act contains an abridged reasoning of that decision. Furthermore, such a judgment contains the conclusion that no issues arise that justify an examination in cassation proceedings or give rise to the need for a determination of issues in the interests of legal uniformity, legal development or legal protection. Since preliminary questions within the meaning of Article 267 of the Treaty on the Functioning of the European Union concern the interpretation of Community law and are issues of law (rechtsvragen), it is inherent in such a judgment that there is no need to put preliminary questions. The judgment also implies that the case in question concerns one of the situations where there is no need for such referral of preliminary questions, namely when the preliminary question raised is not relevant for the resolution of the dispute or can be answered in the light of the case-law of the Court of Justice [of the European Union] or that no reasonable doubt exists as to the manner in which the question concerning the rules of Community law was to be resolved. ”", "B. European Union law", "Article 267 of the Treaty on the Functioning of the European Union", "21. Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) [2] provides as follows:", "“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:", "(a) the interpretation of the Treaties;", "(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union ...;", "Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.", "Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”", "22. On 25 November 2016, the CJEU published its (updated) Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2016/C 439/01), which reads, as far as relevant to the present case:", "“3. The jurisdiction of the Court to give a preliminary ruling on the interpretation or validity of EU law is exercised exclusively on the initiative of the national courts and tribunals, whether or not the parties to the main proceedings have expressed the wish that a question be referred to the Court. In so far as it is called upon to assume responsibility for the subsequent judicial decision, it is for the national court or tribunal before which a dispute has been brought – and for that court or tribunal alone – to determine, in the light of the particular circumstances of each case, both the need for a request for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. ”", "Relevant case-law of the CJEU", "23. In the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health ( C- 283/81, ECLI: EU:C:1982:335), the CJEU received a request from the Italian Court of Cassation for a preliminary ruling. This request concerned the question as to whether the third paragraph of Article 177 of the EEC Treaty [3] laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified, or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt.", "24. In its judgment of 6 October 1982 the CJEU explained, firstly, as follows:", "“... 6. The second paragraph of that article [ current Article 267] provides that any court or tribunal of a Member State may, if it considers that a decision on a question of interpretation is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. The third paragraph of that article provides that, where a question of interpretation is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.", "7. That obligation to refer a matter to the Court of Justice is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice. More particularly, the third paragraph of Article [267] seeks to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law. The scope of that obligation must therefore be assessed, in view of those objectives, by reference to the powers of the national courts, on the one hand, and those of the Court of Justice, on the other, where such a question of interpretation is raised within the meaning of Article [267].", "8. In this connection, it is necessary to define the meaning for the purposes of Community law of the expression ‘ where any such question is raised ’ in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before the Court of Justice.", "9. In this regard, it must in the first place be pointed out that Article [267] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article [267]. ...”", "25. The CJEU went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “whether a decision on a question of Community law [was] necessary to enable them to give judgment”. It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations: (1) where the question was not relevant, in the sense that the answer to the question, regardless of what it might be, could in no way affect the outcome of the case; (2) where the question was materially identical to a question which had already been the subject of a preliminary ruling in a similar case, or where previous decisions of the Court had already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue were not strictly identical; or (3) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved (bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member States and to the Court of Justice, and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it).", "26. The judgment then concluded as follows (point 21):", "“... the third paragraph of Article [267] of the [Treaty on the Functioning of the European Union] is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court [ of Justice ], unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”", "27. In the case of György Katz v. István Roland Sós (C-404/07, ECLI:EU:C:2008:553 ), the CJEU delivered its judgment on 9 October 2008 which, as far as relevant to the present case, reads :", "“ 37. [ ... ] It is for the national court, not the parties to the main proceedings, to bring a matter before the Court of Justice. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties may not change their tenor [ ... ]. ”", "28. In its judgment of 9 November 2010 in the case of VB Pénzügyi Lízing Zrt. v. Ference Schneider (C-137/08, ECLI:EU:C:2010:659), the CJEU stated, as far as relevant to the present case:", "“ 28. [ ... ] the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties [ ... ].”", "29. In the case of Lucio Cesare Aquino v. Belgische Staat (C-3/16, ECLI:EU:C:2017:209), the CJEU gave judgment on 15 March 2017, stating, as far as relevant to the present case:", "“43. It follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts referred to in the third paragraph have the same discretion as all other national courts as to whether a decision on a question of EU law is necessary to enable them to give judgment. They are not therefore obliged to refer a question of the interpretation of EU law raised before them if the question is not relevant, that is to say, if the answer to that question, whatever it may be, cannot have any effect on the outcome of the case [ ... ].", "44. Consequently, if in accordance with the procedural rules of the Member State concerned, the pleas in law raised before a court referred to in the third paragraph of Article 267 TFEU must be declared inadmissible, a request for a preliminary ruling cannot be regarded as necessary and relevant for that court to be able to give judgment.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "30. The applicant complained that the Supreme Court had refused to refer a question to the CJEU for a preliminary ruling, despite his request in that regard and, by only providing summary reasoning based on section 81 of, the Judiciary (Organisation) Act, had failed to provide adequate reasons for its refusal, in breach of his right to a fair hearing within the meaning of Article 6 § 1 of the Convention, which in its relevant part reads as follows:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”", "31. The Government contested that argument.", "A. Admissibility", "32. The applicability of Article 6 § 1 of the Convention was not in dispute between the parties, and the Court also has no doubt that the proceedings at issue fall within the scope of this provision.", "33. The Government argued that the applicant had failed to exhaust all available domestic remedies by not bringing an action in tort ( onrechtmatige daad ) against the State before the civil courts on the grounds that the Supreme Court ’ s judgment was unlawful. According to the Government, since the alleged violation of Article 6 of the Convention occurred at the very last stage of the criminal proceedings in question, no domestic court had had the opportunity to consider the applicant ’ s claim that his rights under Article 6 had been violated by the Supreme Court ’ s summary reasoning, which should, therefore, have been argued before the civil courts.", "34. The applicant contested this argument, pointing out that the Government had failed to provide evidence, through legal provisions or case-law, of such a civil action being available and effective both in theory and practice. According to the applicant, civil tort proceedings did not in fact constitute an effective remedy as they could never have resulted in the reopening of the criminal case against him.", "35. The Court reiterates the relevant principles concerning exhaustion of domestic remedies set out in its judgment of 28 July 1999 in Selmouni v. France ([GC] no. 25803/94, §§ 74-77, ECHR 1999 ‑ V), including the principle that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. In their brief remarks about the remedy before the civil courts, the Government have not referred to any domestic case-law showing that that remedy would have been effective for the applicant ’ s complaint. In these circumstances, the application cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.", "36. The Court further finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Argument before the Court", "37. The applicant alleged that the refusal of the Supreme Court to seek a preliminary ruling from the CJEU upon his request violated his rights under Article 6 of the Convention. He submitted that it follows from the Court ’ s case-law that the Supreme Court had a duty under Article 6 of the Convention to provide reasons for denying his request for a referral to the CJEU by indicating which of the Cilfit grounds (see paragraphs 23 - 26 above) was applicable, accompanied by an explanation. In the applicant ’ s view, a mere reference to section 81 of the Judiciary (Organisation) Act, as contended by the Government, could not be accepted as adequate in this regard. The applicant contested the Government ’ s argument that it followed from Hansen v. Norway ( no. 15319/09, 2 October 2014 ) that the refusal of a request for a preliminary ruling without providing specific reasons is compatible with Article 6 of the Convention when a legal provision allowing summary reasoning by an appellate court has been applied. He noted that Hansen did not concern a request for a preliminary ruling by the CJEU but a filtering procedure on appeal. Furthermore, according to the applicant, unless the Court unequivocally decided otherwise, the “ Cilfit obligation” was a special obligation to provide reasons, with its own requirements.", "38. The Government argued that it could not be inferred from this Court ’ s case-law that Article 6 of the Convention requires domestic courts to refer a case to the CJEU or to provide specific reasons for refusing such a referral, irrespective of the content or grounds of that request. According to the Government, the duty to provide reasons when refusing to refer a question to the CJEU for a preliminary ruling is “a specific element of the general duty of courts to give reasoned decisions” and, referring to Hansen (cited above, § 80), an appellate court was not required to provide more detailed reasoning when it applied a specific legal provision to dismiss an appeal in cassation as having no prospects of success, without further explanation. Therefore, in the Government ’ s view, the Supreme Court ’ s judgment containing a summary reasoning based on section 81 of the Judiciary (Organisation) Act was compliant with Article 6 of the Convention and it should be read as that court ’ s conclusion that the applicant ’ s request for the referral of a question to the CJEU did not relate to a point of law that required answering.", "2. The Court ’ s assessment", "39. The Court recalls that it is for the national courts to interpret and apply domestic law, if applicable in conformity with EU law, and to decide on whether it is necessary to seek a preliminary ruling from the CJEU to enable them to give judgment. It reiterates that the Convention does not guarantee, as such, the right to have a case referred by a domestic court to another national court or to the CJEU for a preliminary ruling. The Court has previously observed that this matter is, however, not unconnected to Article 6 § 1 of the Convention since a domestic court ’ s refusal to grant a referral may, in certain circumstances, infringe the fairness of proceedings where the refusal proves to have been arbitrary. Such a refusal may be deemed arbitrary in cases where the applicable rules allow no exception to the granting of a referral or where the refusal is based on reasons other than those provided for by the rules, or where the refusal was not duly reasoned. Indeed, the right to a reasoned decision serves the general rule enshrined in the Convention which protects the individual from arbitrariness by demonstrating to the parties that they have been heard and obliges the courts to base their decision on objective reasons ( see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 2011, § § 54 -59). As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention (see, among many other authorities, mutatis mutandis, Roche v. the United Kingdom [GC], no. 32555/96, § 116, ECHR 2005-X). In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society (see Taxquet v. Belgium [GC], 16 November 2010, no. 926/05, § 90 and the cases cited therein ).", "40. The obligation under Article 6 § 1 of the Convention for domestic courts to provide reasons for their judgments and decisions cannot, however, be understood to mean that a detailed answer to every argument is required. The extent to which the duty to provide reasons applies may vary according to the nature of the decision. It is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question of whether or not a court has failed to fulfil the obligation to provide reasons − deriving from Article 6 of the Convention − can only be determined in the light of the circumstances of the case ( see Borovská and Forrai v. Slovakia, no. 48554/10, § 57, 25 November 2014; García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; Kok v. the Netherlands (dec.), no. 43149/98, 4 July 2000; and Ruiz Torija v. Spain, no. 18390/91, § 29, 9 December 1994).", "41. These principles are reflected in the Court ’ s case-law where the issue of due reasoning by domestic courts when refusing a request for a referral to the CJEU has been considered in the light of Article 6 § 1 of the Convention.", "42. For example, the Court has held that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable under Article 6 of the Convention for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue ( see John v. Germany ( dec .) no. 15073/03, 13 February 2007) or for lack of prospects of success without dealing explicitly with the request ( see Wallishauser v. Austria (No. 2), no. 14497/06, § 85, 20 June 2013; see also Rutar Marketing D.O.O. v. Slovenia (dec. ), no. 62020/11, § 22, 15 April 2014 and Moosbrugger v. Austria, no.44861/98, 25 January 2000 ).", "43. Furthermore, in the case of Stichting Mothers of Srebrenica and others v. the Netherlands ( no. 65542/12, § 173, ECHR 2013 ) the Court found that the summary reasoning used by the Supreme Court to refuse a request for a preliminary ruling was sufficient, pointing out that it followed already from a conclusion reached in another part of the Supreme Court ’ s judgment that a request to the CJEU for a preliminary ruling was redundant. In Astikos Kai Paratheristikos Oikodomikos Synetairismos Axiomatikon and Karagiorgos v. Greece ( (dec.), nos. 29382/16 and 489/17, § 47, 9 May 2017 ) the Court observed that the preliminary ruling requested by the applicant in that case would not have changed the conclusion reached by the Council of State of Greece since his appeal had been declared inadmissible due to the non-compliance with statutory requirements for the admissibility of appeal.", "44. In other cases, not concerning a context of domestic accelerated proceedings, the Court has held that national courts against whose decisions there is no remedy under national law are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the CJEU ( Ullens de Schooten and Rezabek, cited above, § 62 ). In Dhahbi v. Italy (no. 17120 /09, § 31, 8 April 2014; see also Schipani and others v. Italy, no. 38369/09, § 42, 21 July 2015), the Court formulated the following principles regarding the domestic courts ’ duty under Article 6 of the Convention when a request is made for a referral to the CJEU for a preliminary ruling, and where the request was accompanied by a due argumentation :", "“ ... Article 6 § 1 requires domestic courts to provide reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling;", "– when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal was duly accompanied by such reasoning;", "– whilst this verification has to be carried out in a thorough manner, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law; and", "– in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (current Article 267 of the TFEU), this means that national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of EU law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU. They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. ”", "45. Turning to the present case, the Court observes that the Supreme Court partly dismissed the applicant ’ s appeal in cassation, including his request for a referral to the CJEU for a preliminary ruling, using a summary reasoning based on section 81 of the Judiciary (Organisation) Act (see paragraph 15 above). It is the applicant ’ s contention that Article 6 § 1 of the Convention militated against the Supreme Court ’ s confining itself to that summary reasoning in respect of his request for a referral of a question to the CJEU.", "46. The Court recalls that it has previously held that it is acceptable under Article 6 § 1 of the Convention for national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John, cited above ). It has also considered that it is likewise not contrary to that provision for these courts to dismiss an appeal on points of law as having no prospect of success, without further explanation ( see Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009, and Gorou v. Greece (no.2) [GC], no. 12686/03, § 41, 20 March 2009). This principle was reiterated by the Court in Talmane v. Latvia ( no. 47938/07, § 29, 13 October 2016 with further references ). It must, also in this context, ascertain that decisions of national courts are not flawed by arbitrariness or otherwise manifestly unreasonable, this being the limit of the Court ’ s competence in assessing whether domestic law has been correctly interpreted and applied (see Talmane, cited above, § 31).", "47. The Court accepts that, in line with the aim of the legislature (see paragraph 19 above), section 81 of the Judiciary (Organisation) Act ‒ which allows the Supreme Court to dismiss an appeal in cassation for not constituting grounds for overturning the impugned judgment and not giving rise to the need for a determination of legal issues ‒ and section 80a of the same Act ‒ which allows the Supreme Court to declare an appeal in cassation inadmissible for not having any prospect of success ‒ are aimed at keeping the length of proceedings reasonable and also allow courts of cassation or similar judicial bodies to concentrate efficiently on their core tasks, such as ensuring the uniform application and correct interpretation of the law.", "48. Taking into account the Supreme Court ’ s explanation that it is inherent in a judgment in which the appeal in cassation is declared inadmissible or dismissed by application of and with reference to section 80a or 81 of the Judiciary (Organisation) Act that there is no need to seek a preliminary ruling since the matter did not raise a legal issue that needed to be determined (see paragraph 20 above ), the Court furthermore accepts that the summary reasoning contained in such a judgment implies an acknowledgment that a referral to the CJEU could not lead to a different outcome in the case.", "49. The Court also notes that the CJEU has ruled that the domestic courts referred to in the third paragraph of Article 267 TFEU are not obliged to refer a question about the interpretation of EU law raised before them if the question is not relevant, that is to say, if the answer to that question, whatever it may be, cannot have any effect on the outcome of the case (see paragraph 29 above ).", "50. The Court therefore considers that, in the context of accelerated procedures within the meaning of section 80a or 81 of the Judiciary (Organisation) Act, no issue of principle arises under Article 6 § 1 of the Convention when an appeal in cassation which includes a request for referral is declared inadmissible or dismissed with a summary reasoning where it is clear from the circumstances of the case that the decision is not arbitrary or otherwise manifestly unreasonable (see paragraph 46 above ).", "51. The Court observes that pursuant to section 81(2) of the Judiciary (Organisation) Act (see paragraph 18 above), an appeal in cassation is considered and decided by three members of the Supreme Court. The Court further observes that, in the case at hand, the applicant ’ s request for a question to be referred to the CJEU, which he raised in his written reply to the Advocate General ’ s advisory opinion, was dismissed by the Supreme Court with summary reasoning on the basis of section 81 of the Judiciary (Organisation) Act, after having taken cognisance of the applicant ’ s written grounds of appeal, and both the Advocate General ’ s advisory opinion and the applicant ’ s written reply thereto (see paragraph 14 above ).", "52. In these circumstances the Court is satisfied that the Supreme Court has duly examined the grounds of the applicant ’ s appeal on points of law. The Court can thus discern no appearance of unfairness in the proceedings before the Supreme Court.", "53. There has accordingly been no violation of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1939 and lives in Vác.", "6. He was awarded a disability pension on 6 May 1995. Since he had accrued service periods in both Hungary and Austria, his pension was established accordingly, both under the Act no. LXXXI of 1997 on Social Security Pension Benefits (“the 1997 Pensions Act”) and the Social Security Agreement between Hungary and Austria. On 1 May 2004 (the date of Hungary ’ s accession to the EU ) his monthly pension was 74,361 Hungarian forints (HUF ) ( approximately 250 euros (EUR) ).", "7. On 18 April 2006 he requested a review of his pension rights in accordance with Article 94(5) of Regulation 1408/71/EEC of the Council of the European Communities on the Application of Social Security Schemes to Employed Persons and their Families Moving within the Community (hereinafter “the Regulation”). The provision stipulated that the rights of a person to whom a pension had been awarded prior to the entry into force of the Regulation could, at the request of the person concerned, be reviewed, taking into account the provisions of the Regulation. With regard to the applicant, the date of “entry into force” was Hungary ’ s EU accession.", "8. On 1 September 20 0 6 the applicant ’ s monthly pension was reviewed by the Budapest and Pest County Pensions Board ( Fővárosi és Pest Megyei Nyugdíjbiztosítási Igazgatóság ), acting as a first - instance pension authority. The applicant ’ s pension was increased to HUF 13 4, 566 (approximately EUR 4 49 ) per month with effect from 1 May 2004.", "9. On 7 September 2006 the applicant appealed against that decision, because the pension authority had calculated an overlap period (during which he had worked in Austria but had also had to pay social security contributions in Hungary) as a mere Hungarian service period with a very low average salary.", "10. Despite the appeal, the decision was implemented with immediate effect and the applicant received HUF 1,996,104 (approximately EUR 6,650) in arrears.", "11. On 16 January 2007 the Central Hungary Regional Pensions Board ( Közép-Magyarországi Regionális Nyugdíjbiztosítási Igazgatóság ), acting as a second-instance pension authority, increased the applicant ’ s monthly pension to HUF 135,450 (approximately EUR 452) with effect from 1 May 2004. For the period 1 May 2004 to 28 February 2007 he received a total of HUF 42,065 (approximately EUR 140) in arrears and interest.", "12. The applicant challenged the final administrative decision in court and requested that a question concerning the correct interpretation of the Regulation be referred to the Court of Justice of the European Union (“ CJEU ”) for a preliminary ruling.", "13. On 12 October 2007 the Budapest Labour Court dismissed the applicant ’ s action and upheld the pension authority ’ s decision.", "14. The applicant lodged a petition with the Supreme Court for review of the Budapest Labour Court ’ s judgment. On 6 March 2009, in the review proceedings, he submitted written pleadings to the Supreme Court.", "The pleadings were not submitted to the Court in the present proceedings and the parties ’ submissions differed as to the content of the document containing them. According to the Government, the applicant withdrew his request for a preliminary ruling on that date, whereas the applicant alleged that he had only submitted that the reference to the CJEU was not necessarily inevitable, provided that his interpretation of EU case-law was followed. However, in his view, this did not amount to a withdrawal of the request for a reference for a preliminary ruling.", "15. On 3 June 2009 the Supreme Court reversed the Budapest Labour Court ’ s judgment and ordered new proceedings, insisting that the EU law principle concerning the prevention of overlapping of benefits be taken into account.", "In response to the applicant ’ s request for a reference for a preliminary ruling, the Supreme Court held that the procedure appeared to be unnecessary “because the conditions had not been fulfilled”.", "16. In the case remitted to it, the Labour Court quashed the decision of the pension authority and instructed it to recalculate the applicant ’ s pension in accordance with EU rules (without counting the overlap period as a mere Hungarian service period). The judgment became final on 1 9 March 2010.", "17. On 7 July 2010 the Central Hungary Regional Pensions Board adopted a new decision in accordance with the instructions of the Budapest Labour Court and increased the applicant ’ s monthly pension to HUF 139,545 (approximately EUR 465) with effect from 1 May 2004. The decision ordered the payment, in arrears, of the difference between the pension due and the amount already paid.", "The 1997 Pensions Act provides that if a pension authority has made a mistake to the detriment of an applicant, the difference is to be paid for only the last five years preceding the date the mistake was discovered (the duration of the statutory limitation period). Payment of the difference was therefore ordered for the period after 19 March 2005 only ( namely from the date exactly five years before the date on which the Labour Court ’ s judgment became final, see paragraph 16 above). The amount paid to the applicant in arrears and interest was HUF 581,515 (approximately EUR 1,940).", "18. On 23 July 2010 the applicant appealed against the decision, claiming the arrears for the whole period following Hungary ’ s EU accession.", "19. On 11 November 2010 the Pension Appeals Board ( Nyugdíjbiztosítási Jogorvoslati Igazgatóság ) amended the decision of 7 July 2010 (see paragraph 17 above), reduced the applicant ’ s monthly pension to HUF 138,170 (approximately EUR 460) with effect from 1 May 2004, but limited payment to the period following 19 March 2005.", "20. The Appeals Department of the National Pensions Administration ( Országos Nyugdíjbiztosítási Főigazgatóság Jogorvoslati Főosztály ) conducted a repeated second-instance review and, in a decision dated 5 November 2011, amended the decision of 11 November 2010 (see paragraph 19 above). It increased the applicant ’ s monthly pension to HUF 139,605 (approximately EUR 465) with effect from 1 May 2004, retaining however the limitation of payment as regards the period preceding 19 March 2005.", "21. The applicant requested a court review of the pension authority ’ s decision of 7 July 2010, as amended by the decisions of 11 November 2010 and 5 November 2011. He relied on Article 94(6) of the Regulation.", "22. On 29 February 2012 the Budapest Labour Court upheld the pension authority ’ s decisions (see paragraphs 17, 19 and 20 above).", "23. On 22 March 2012 the applicant submitted a petition for review of the Budapest Labour Court ’ s judgment. He argued that domestic law was to be interpreted and applied in conformity with EU law, of which the relevant provision, Article 94(6) of the Regulation, was directly applicable and had direct effect in the case. He contended, in essence, that he had a right, as acknowledged in the decisions of the pension authority, to an adjusted pension for the whole period following 1 May 2004. The national rule restricting the very payment of that pension to a shorter period of time constituted a “limitation of rights” prohibited by the Regulation. He was of the opinion that the Budapest Labour Court ’ s judgment, in giving precedence to the rule of national law over the relevant provision of the Regulation, had violated the principles of primacy and effectiveness of EU law.", "In his petition for review, the applicant did not request that the case be referred to the CJEU for a preliminary ruling; instead, he requested what he considered to be a correct application of Article 94(6) of the Regulation. Nevertheless, he argued that the Budapest Labour Court ’ s judgment had violated Article 234 of the Treaty Establishing the European Community ( “EC Treaty”, now Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) ), without providing a detailed explanation on this point.", "24. On 26 June 2013 the Kúria upheld the judgment of the Budapest Labour Court.", "Both the Budapest Labour Court and the Kúria reasoned that the Regulation concerned only the acquisition of rights but not the actual payment of allowances. In the courts ’ view, the applicant had indeed acquired a right to an amended pension from 1 May 2004 and his rights in this regard were not subject to any forfeiture or limitation; it was only the actual payment of the increased amount which had been limited. In the courts ’ opinion, therefore, the relevant provisions of the 1997 Pensions Act and those of the Regulation did not conflict.", "As regards the applicant ’ s argument concerning the alleged violation of Article 234 of the EC Treaty, the Kúria ’ s judgment did not contain any reasoning.", "25. In parallel to the litigation described above, on 2 February 2008 the applicant lodged a petition with the Constitutional Court, arguing that the rules of the 1997 Pensions Act were in conflict with EU law. On 4 October 2010 the court rejected the petition, stating that it lacked competence to examine an alleged conflict between Hungarian and EU law (see decision no. 126/E/2008 of the Constitutional Court)." ]

[ "II. RELEVANT DOMESTIC AND EUROPEAN UNION LAW", "A. Domestic law and practice", "26. The relevant part of Article XXVIII of the Fundamental Law of Hungary provides:", "“(1) Everyone shall have the right to have any charge against him or her, or his or her rights and obligations in any litigation, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act.", "... ”", "27. Section 80(1) of the 1997 Pensions Act provides as follows:", "“ If, following the examination of a pension request, it turns out that the pension authority violated the applicable law and ... the pension established or disbursed was therefore unduly low, then the arrears and ... interest shall be paid for the five-year period preceding the establishment of the violation.”", "28. The relevant provisions of the Code of Civil Procedure (Act no. III of 1952), as in force at the material time, provided as follows :", "Article 155/A", "“(1) The court may request the [CJEU] for a preliminary ruling in accordance with the rules laid down in the Treaty establishing the European Community.", "(2) The court shall make a reference for a preliminary ruling by order ( végzés ) and shall [simultaneously] stay the proceedings. In the order, the court shall specify the question for which a preliminary ruling is requested and describe the circumstances of the case and the relevant domestic law inasmuch as it is necessary for answering the question referred to the [CJEU]. The order shall be notified to the [CJEU] and, for information, to the Minister in charge of justice at the same time.", "(3) No appeal lies against a court decision making a reference for a preliminary ruling or dismissing a request for a reference for a preliminary ruling.”", "Article 272", "“(2) The petition for review shall specify the decision that is the subject thereof and the substance of the decision requested; furthermore, it shall set out the alleged infringement, specify the legal provision that has been breached and explain the reasons why the impugned decision requires modification. ”", "Article 275", "“(2) The Kúria may review a final decision only within the framework of the petition for review ... unless it decides to dismiss the action of its own motion, or if the court that rendered the decision had not been properly formed, or if a judge who should have been disqualified by law took part in rendering the decision.”", "29. In leading case no. BH 2015.7.203 the Kúria held as follows:", "“A petition for review does not meet the requirements [of the Code of Civil Procedure] if, for the purposes of the specification of the infringement, it contains only a general reference to [certain] Chapters ... of the Code of Civil Procedure. The petition for review cannot be examined on the merits if the party specifies the infringed legal provision but does not provide any reasoning in that connection.”", "30. In leading case no. BH 2016.12.342 the Kúria held, in so far as relevant:", "“A petition for review may only be examined on the merits if[, in addition to a pure reference to the allegedly violated legal provision,] the petitioning party also describes the substance of the infringement, explains his or her legal opinion thereon and sets out the reasons supporting his or her argument.”", "31. In leading case no. BH 1995.2.99 the Kúria held, in so far as relevant:", "“The petition for review must specify the alleged infringement concretely; it is not sufficient to refer to previous submissions.", "...", "[The petitioning party] did not set out the reasons on which he relied in challenging the final judgment; he only referred to the content of his appeal [against the first - instance judgment]. However, the petition for review is an independent, extraordinary remedy[. Given] its special nature, references to previous submissions are not accepted.”", "32. Section 46 (1) of the Constitutional Court Act (Act no. CLI of 2011) provides as follows:", "“If the Constitutional Court, in proceedings conducted by it in the exercise of its competences, declares an omission on the part of the legislature that results in a violation of the Fundamental Law, it shall call upon the organ responsible for the omission to take action and set a time-limit for that. ”", "33. The relevant parts of the Constitutional Court ’ s decision no. 7/2013 (III.1) AB of 1 March 2013 read as follows :", "“[26] The Fundamental Law of Hungary, having entered into force in January 2012, imposes on the Constitutional Court the ... task of reviewing the conformity of judicial decisions with the Fundamental Law. In accordance with Article 24 (2) ( d) of the Fundamental Law and section 27 of the Constitutional Court Act, the Constitutional Court bears ultimate responsibility for ensuring judicial decisions ’ conformity with the Fundamental Law. In determining whether a judicial decision is or is not in conformity with the Fundamental Law, the Constitutional Court actually acts in order to redress a violation of a right enshrined under the Fundamental Law, hence it acts in protection of the Fundamental Law ...", "...", "[30] In its decision no. 61/2011 (VII.13) AB the Constitutional Court took the principled stance that “in the case of certain fundamental rights, the Constitution specifies the substance of a fundamental right in the same way as international instruments ( for example the Covenant on Civil and Political Rights or the European Convention on Human Rights) do. In such cases, the level of protection to be afforded by the Constitutional Court to the fundamental right should in no way be lower than the level of international protection afforded to the given right (typically by the European Court of Human Rights in Strasbourg)” ... Based on this consideration, the Constitutional Court has reviewed the case-law of the [European] Court [of Human Rights] on the right to a reasoned court decision, which it also finds applicable in interpreting the right enshrined in Article XXVIII (1) of the Fundamental Law.", "...", "[33] 3. The right to a reasoned court decision ... arises in the context of the constitutional requirement of a fair trial, specified in Article XXVIII (1) of the Fundamental Law. ... The Constitutional Court is to examine whether the procedural laws prescribing the duty of giving reasons were or were not applied in conformity with the requirements set forth in Article XXVIII (1) of the Fundamental Law ...", "[34] ... The constitutional requirement of giving reasons, being examined by the Constitutional Court, is inherent in Article XXVIII (1) of the Fundamental Law and determines the limits of the courts ’ margin of appreciation, notably by requiring courts to give reasons for their decisions, in conformity with the procedural laws. The constitutional violation of the duty to give reasons means the application of this procedural rule is not in conformity with the Fundamental Law ... The constitutional requirement of a fair trial demands, as a minimum, that the courts should, with due care, examine the parties ’ observations made on the relevant parts of the case and should include an assessment of those observations in their decisions ...", "...", "[40] In the light of the above considerations, the Constitutional Court finds, on the merits, that the high court ... examined the questions ... concerning the relevant circumstances of the case and gave appropriate reasons as regards its conclusions.", "[41] The Constitutional Court therefore dismisses this part of the constitutional complaint.”", "34. In a complaint adjudicated by the Constitutional Court on 19 May 2014 ( decision no. 3165/2014 (V. 23) AB ), the complainant argued that the Kúria had failed to comply with its obligation to refer a question on the interpretation of EU law to the CJEU for a preliminary ruling and to provide adequate reasons for its decision not to do so (see paragraph 5 of the decision).", "The Constitutional Court held that the competence to decide whether a reference for a preliminary ruling was necessary in the circumstances was vested solely in the judge hearing the particular case and the Constitutional Court lacked jurisdiction to overrule such decisions. It rejected the complaint as inadmissible and did not address the issue of adequate reasoning.", "35. On 14 July 2015 (decision no. 26/2015 (VII. 21) AB ) the Constitutional Court examined a complaint regarding a final judgment of the Budapest High Court concerning its failure to refer a question to the CJEU for a preliminary ruling and to provide reasons for its decision not to do so.", "Following an analysis of the CJEU ’ s relevant case-law, the Constitutional Court found that, in the case at issue, the question proposed by the claimant related to the qualification and interpretation of domestic law (which, in the claimant ’ s view, contradicted EU law), rather than to the interpretation of the applicable EU law provision itself. In these circumstances, the Constitutional Court shared the Budapest High Court ’ s opinion that there had been no need for a reference for a preliminary ruling.", "It observed that, in accordance with the Code of Civil Procedure as in force at the relevant time, the courts were not required to give reasons for not making a reference to the CJEU. It held that such a situation – that is to say, if the courts did not adopt a formal decision complete with reasons when they refused to refer a question to the CJEU for a preliminary ruling – violated parties ’ rights to a fair trial. Accordingly, it declared that there had been an omission on the part of the legislature resulting in a violation of the Fundamental Law (see paragraph 32 above), and invited Parliament to amend the relevant legislation by 31 December 2015.", "However, the Constitutional Court ’ s decision did not find the Budapest High Court ’ s particular judgment unconstitutional on account of the court ’ s failure to provide reasons for the non-referral – indeed, it did not contain any arguments related to the lack of reasons in that particular judgment.", "36. In accordance with the Constitutional Court ’ s decision no. 26/2015, Article 155/A (2) of the Code of Civil Procedure (see paragraph 28 above) was amended as of 4 December 2015 with the following additional wording :", "“ If the court dismisses a request for a reference for a preliminary ruling, it shall formulate its decision in the form of an order ( végzés ). The court is obliged to give reasons for that decision, by the latest in its decision on the merits that concludes the proceedings.”", "37. In decision no. 3082/2016 (IV. 18) AB adopted on 12 April 2016 the Constitutional Court noted obiter dictum, in connection with a particular case, that the court hearing the case at issue had observed its obligation to provide reasons for not making a reference to the CJEU.", "B. European Union law and practice", "38. The relevant part of Article 267 of the TFEU [1] provides :", "“The [CJEU] shall have jurisdiction to give preliminary rulings concerning:", "(a) the interpretation of the Treaties;", "(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;", "Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.", "Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. ... ”", "39. In applying that provision, the CJEU has held that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of interpretation of EU law (rather than a question relating to the validity of a Community act, see the judgment in Gaston Schul Douane-expediteur BV v. Minister van Landbouw, Natuur en Voedselkwaliteit, C-461/03, judgment of 6 December 2005, ECR I-10513, § 19) is raised before it, to comply with its obligation to bring the matter before the CJEU, unless it has established that the question raised is irrelevant or that the EU law provision in question has already been interpreted by the CJEU ( acte éclairé ) or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt ( acte clair ). The CJEU has also held that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the EU ( see Srl Cilfit and Lanificio di Gavardo SpA v. Ministry of Health, 283/81, judgment of 6 October 1982, ECR 3415, § 21, and X v. Inspecteur van Rijksbelastingdienst and T.A. van Dijk v. Staatssecretaris van Financiën, joined cases C-72/14 and C ‑ 197/14, judgment of 9 September 2015, § 55 ). With that proviso, the CJEU also held that it was for the national courts against whose decisions there was no judicial remedy under national law, to take responsibility upon themselves independently for determining whether the case before them involves an acte clair (see X and van Dijk, cited above, § 59).", "40. As regards the specific characteristics of EU law, the CJEU emphasised, among other aspects, that EU law used terminology which was unique to it and that the legal concepts did not necessarily have the same meaning in EU law as in the law of the various member States. It also stressed that every provision of EU law must be placed into context and interpreted in the light of the provisions of EU law as a whole, having regard to the objectives thereof and to its state of evolution at the date on which the provision in question was to be applied (see Cilfit, cited above, § § 19 and 20).", "41. The CJEU also defined the meaning of the expression “where any such question is raised” contained in the third paragraph of Article 267 of the TFEU (see Cilfit, cited above, §§ 8-9). It later summarised its settled case-law on this point as follows (see Belgische Petroleum Unie VZW and Others v. Belgische Staat, C-26/ 11, judgment of 31 January 2013, §§ 23 ‑ 24) :", "“23. ... [I]t should be borne in mind that the fact that the parties to the main action did not raise a point of European Union law before the referring court does not preclude the latter from bringing the matter before the [CJEU]. In providing that a request for a preliminary ruling may be submitted to the [CJEU] where ‘ a question is raised before any court or tribunal of a member state ’, the second and third paragraphs of Article 267 TFEU are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of European Union law, but also extend to cases where a question of this kind is raised by the court or tribunal itself, which considers that a decision thereon by the [CJEU] is ‘ necessary to enable it to give judgment ’ ...", "24. Moreover, according to settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. ”", "The CJEU further held, in the case of Lucio Cesare Aquino v. Belgische Staat (C-3/16, judgment of 15 March 2017, § 43), that :", "“[i]t follows from the relationship between the second and third paragraphs of Article 267 TFEU that the courts referred to in the third paragraph have the same discretion as all other national courts as to whether a decision on a question of EU law is necessary to enable them to give judgment.”", "42. Article 94(6) of the Regulation 1408/71/EEC of the Council of the European Communities on the Application of Social Security Schemes to Employed Persons and their Families Moving within the Community, as in force until 1 May 2010, provided as follows:", "“If an application referred to in paragraph 4 or 5 [in particular, an application for the review of a pension awarded prior to the entry into force of this Regulation] is submitted within two years from the date of entry into force of this Regulation, the rights acquired under this Regulation shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.”", "It appears that the interpretation of that provision has so far not been the subject of a preliminary ruling of the CJEU. [2]", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS", "43. The applicant complained of a violation of his right to a fair trial. He argued that the domestic authorities and, in particular, the Kúria had not taken due account of the EU law provision which should have governed his case and which placed certain obligations on the national courts in respect of references for preliminary rulings, including an obligation incumbent on national courts of last instance to provide reasons for not making a reference.", "He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”", "A. The parties ’ submissions", "1. The Government", "44. The Government raised an objection of non-exhaustion of domestic remedies. They argued that the applicant could have challenged the Kúria ’ s judgment before the Constitutional Court under Article XXVIII of the Fundamental Law of Hungary, which guaranteed the right to a fair trial. They referred to decision no. 7/2013 (see paragraph 33 above) in which the Constitutional Court examined, in the light of both Article XXVIII of the Fundamental Law and Article 6 of the Convention, the fairness of a high court ’ s final judgment, with particular regard to the question of whether the high court had observed its obligation to give appropriate reasons for its decision. In the Government ’ s view, the Constitutional Court ’ s decision demonstrated that the applicant could have brought his complaint relating to the unfairness of the proceedings and, in particular, the lack of appropriate reasoning, before the Constitutional Court – a legal avenue of which he had not availed himself.", "45. As regards the merits of the complaint, the Government argued that both the Budapest Labour Court and the Kúria had considered the issue of compatibility of the relevant Hungarian rules with the provisions of the Regulation and had given reasons why the EU law provision relied on by the applicant had not been relevant in the case and why there had not been a conflict between domestic and EU law.", "46. They further contended that on 6 March 2009 the applicant had withdrawn his request for a reference for a preliminary ruling (see paragraph 14 above). It had therefore been unnecessary for the courts to provide reasons as to why no such reference had been made to the CJEU.", "2. The applicant", "47. As regards the Government ’ s objection concerning non-exhaustion of domestic remedies, the applicant submitted that a constitutional complaint was not an effective remedy within the meaning of the Court ’ s case-law. He argued that, although the Constitutional Court would become aware of a constitutional complaint following a request lodged directly by the person concerned, the formal institution of proceedings depended on the discretion of that court, which only accepted such a complaint if it raised an issue that was of “fundamental importance ” or that “significantly affected ” the challenged judicial decision. For the applicant, it followed from the vagueness of these notions that the legal avenue of a constitutional complaint lacked a sufficient degree of certainty. Furthermore, he objected that the Government had failed to cite any case-law in which the Constitutional Court had analysed an omission of a reference for a preliminary ruling to the CJEU.", "48. As to the merits of the complaint, the applicant submitted that the supreme domestic judicial instances had failed to consider the CJEU ’ s case-law on which he had extensively relied in order to clarify the correct interpretation of the Regulation. Nor had they provided sufficient reasoning, in line with the Cilfit requirements (see paragraph 39 above), as to why it was so obvious, leaving no scope for any reasonable doubt, that the non- payment of his pension with respect to a certain period had not amounted to a “forfeiture or limitation” prohibited by the Regulation. He also contended that he had not withdrawn his request for a reference for a preliminary ruling in 2009; he had only argued before the Supreme Court that, in the event it shared his opinion concerning the correct application of the Regulation, a reference would no longer be necessary (see paragraph 14 above). He submitted that, in any event, a national court or tribunal could refer a matter to the CJEU of its own motion – it was therefore not a party ’ s request but the substantial need for the CJEU ’ s interpretation that triggered the duty incumbent on a court of last instance to make a reference for a preliminary ruling. The applicant was of the view that such a need for interpretation had been present in his case; it had hence been the Kúria ’ s duty to refer a question to the CJEU or give ample reasons, in the light of the Cilfit criteria, why this had not been necessary in the particular circumstances.", "B. The Court ’ s assessment", "49. The Court does not consider it necessary to examine the Government ’ s objection of non-exhaustion of domestic remedies (see paragraph 44 above), given that this part of the application is in any event inadmissible for the following reasons.", "50. The Court notes that the applicant ’ s complaint challenged two aspects of the fairness of the domestic proceedings.", "51. Firstly, that the domestic authorities applied section 80 (1) of the 1997 Pensions Act in his case, allegedly in blatant disregard of a mandatory provision of EU law, namely Article 94(6) of the Regulation (see paragraph 42 above), which was directly applicable and should have had direct effect in the case.", "52. Secondly, that the Supreme Court, renamed the Kúria (see the first sentence of point 36 of the Constitutional Court ’ s decision cited in Baka v. Hungary [GC], no. 20261/12, § 55, ECHR 2016 ), as a court of last instance, failed to provide reasons in accordance with the Cilfit criteria as to why it had deemed it unnecessary to refer a question concerning the Regulation ’ s interpretation to the CJEU for a preliminary ruling.", "53. The Court reiterates that, under Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). It is not competent to rule formally on compliance with domestic law, other international treaties or EU law. The task of interpreting and applying the provisions of EU law falls firstly to the CJEU, in the context of a request for a preliminary ruling, and secondly to the domestic courts in their capacity as courts of the Union, that is to say, when they give effect to a provision of EU law as interpreted by the CJEU (see Avotiņš v. Latvia [GC], no. 17502/07, § 100, ECHR 2016 ). It is therefore primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law, the Court ’ s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, § 54, 20 September 2011 ). Furthermore, the Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015).", "1. Complaint alleging a misinterpretation of EU law", "54. In so far as the complaint challenged the Kúria ’ s interpretation of EU law, concerning notably the meaning of Article 94(6) of the Regulation and leading to the application of section 80 of the 1997 Pensions Act, the Court considers that the review of the soundness of that interpretation, adopted by the Kúria in its capacity as a court of the Union, is an area that falls outside the Court ’ s jurisdiction (see Ullens de Schooten and Rezabek, cited above, § 66 ).", "55. It follows that the first part of the complaint (see paragraph 51 above) is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.", "2. Complaint of a lack of reasoning in connection with the need for a reference for a preliminary ruling", "56. As regards the second aspect of the complaint, concerning the adequacy, within the meaning of Article 6 § 1 of the Convention, of the Kúria ’ s reasoning with respect to a potential reference for a preliminary ruling (see paragraph 52 above), the Court reiterates that the Convention does not guarantee, as such, any right to have a case referred by a domestic court to another national or international authority for a preliminary ruling. However, the Court does not rule out the possibility that, where a preliminary reference mechanism exists, refusal by a domestic court to grant a request for such a referral may, in certain circumstances, infringe the fairness of proceedings – in particular, where the refusal proves arbitrary, that is to say where there has been a refusal even though the applicable rules allow no exception to the principle of preliminary reference or no alternative thereto, where the refusal is based on reasons other than those provided for by the rules, and where the refusal has not been duly reasoned in accordance with those rules (see Ullens de Schooten and Rezabek, cited above, §§ 57-59).", "57. The general principles relating to the obligation of reasoning on the national courts against whose decisions there is no remedy under national law and which decide not to refer a question on the interpretation of EU law that has been raised before them to the CJEU for a preliminary ruling, have been set out in the case of Ullens de Schooten and Rezabek (cited above, §§ 56 to 62; see also, mutatis mutandis, Vergauwen and Others v. Belgium (dec.), no. 4832/04, §§ 89 and 90, 10 April 2012; Dhahbi v. Italy, no. 17120/09, § 31, 8 April 2014; Wind Telecomunicazioni S.P.A. v. Italy (dec.), no. 5159/14, § 34, 8 September 2015; and Avotiņš, cited above, § 110 ).", "The gist of those principles is that the above-mentioned courts are obliged, in accordance with the Cilfit case-law (see paragraphs 39 to 41 above), to state the reasons why they have considered it unnecessary to seek a preliminary ruling; in particular, why they have found that the question is irrelevant, that the EU law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. Whilst the verification of the presence of such reasoning has to be made thoroughly, it is not for the Court to examine any errors that may have been committed by the domestic courts in interpreting or applying the relevant law.", "58. Turning to the facts of the present case, the Court notes at the outset that the applicant ’ s case was heard twice by the supreme domestic judicial instance; first in 2009, then in 2013 (see paragraphs 15 and 24 above). In 2009 the alleged conflict between section 80(1) of the 1997 Pensions Act and Article 94(6) of the Regulation, in respect of which the applicant argued before the Court that a reference for a preliminary ruling would have been necessary, was not yet the subject matter of the litigation. That issue was not raised until after the decision of 7 July 2010 of the Central Hungary Regional Pensions Board, which limited the actual payment of the applicant ’ s pension (see paragraph 17 above). The Government argued that, although the applicant had initially requested that a reference for a preliminary ruling be addressed to the CJEU, by that time he had already withdrawn that request (see paragraph 46 above). The applicant contested this argument and submitted that he had maintained his request for a preliminary ruling throughout the proceedings in case the courts did not share his opinion concerning the correct application of the Regulation (see paragraphs 23 and 48 above).", "59. The Court considers that it is not necessary to resolve the difference between the parties ’ assertions, because in any event the applicant was required, as per the relevant domestic legislation and case-law (see paragraphs 28 to 31 above) to formulate his petition for review in a self- contained and comprehensive manner, that is to say, to specify the alleged infringement concretely and to set out all of his petitions complete with reasoning, without reference to any previous submissions. The Kúria ’ s jurisdiction was limited to an examination of the issues raised by the petition for review.", "60. The Court notes that the applicant did not request, in his petition for review, that the case be referred to the CJEU for a preliminary ruling; nor did he provide any reasons as to why, in his view, the Budapest Labour Court ’ s judgment had violated Article 234 of the EC Treaty (see paragraph 23 above). Under these circumstances, the lack of reasoning in connection with these aspects seems to be in line with the domestic procedural rules.", "61. The Court further notes that, as per the CJEU ’ s relevant case-law (see paragraph 41 above), even if the initiative of a party is not necessary for a domestic court against whose decisions there is no judicial remedy under national law to be obliged to bring a question concerning the interpretation or the validity of EU law before the CJEU, it is solely for that court to determine in the light of the particular circumstances of the case the need for a preliminary ruling in order to enable it to deliver judgment. The Court observes that in the present case the Kúria was of the view that the relevant provisions of the 1997 Pensions Act and those of the Regulation did not conflict; it did not consider a preliminary ruling on a question of EU law necessary to give judgment (see paragraph 24 above).", "62. In such circumstances the Court does not discern any appearance of arbitrariness in the fact that the Kúria did not refer a question to the CJEU for a preliminary ruling or in its manner of giving reasons for the judgment without elaborating on questions related to a potential reference for a preliminary ruling (see also, mutatis mutandis, Ryon and Others v. France (dec.), nos. 33014/08, 36748/08, 5187/09, 11793/09, 43329/10 and 66405/10, § 32, 15 October 2013).", "63. It follows that the second part of the complaint (see paragraph 52 above) is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS", "64. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.", "65. The Government contested this view.", "66. The period to be taken into consideration began on 7 September 2006, when the applicant lodged his appeal against the decision of the first-instance pension authority concerning his request for a review of his pension rights (see paragraph 9 above ); it was then that a “dispute” within the meaning of Article 6 § 1 arose ( see, mutatis mutandis, König v. Germany, 28 June 1978, § 98, Series A no. 27; Tóth, Magyar and Tóthné v. Hungary, no. 35701/04, § 19, 6 December 2005; Počuča v. Croatia, no. 38550/02, § 30, 29 June 2006; and Kugler v. Austria, no. 65631/01, § 36, 14 October 2010). It ended on 26 June 2013, when the Kúria upheld the judgment of the Budapest Labour Court (see paragraph 24 above). It thus lasted more than six years and nine months at two levels of administration and two levels of court.", "67. At this juncture, the Court notes that it cannot share the Government ’ s argument that the proceedings at issue should be considered to have comprised of two distinct parts, one concerning the amount of the applicant ’ s pension (covering the period between 2006 and 29 February 2012) and the other concerning the applicability of section 80(1) of the 1997 Pensions Act (covering the period between 11 November 2010 and 26 June 2013). For the Court, the actual disbursement of the applicant ’ s adjusted pension constituted a question inherently linked to the subject matter of the dispute started in 2006. It further observes that the issues raised by the application of section 80(1) of the 1997 Pensions Act were examined by the domestic courts as part of one and the same proceedings. Therefore, the separate treatment of those issues for the purposes of Article 6 § 1 of the Convention would be artificial and unjustified.", "68. In view of such lengthy proceedings, this complaint must be declared admissible.", "69. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "70. The Court notes that the case was not exceptionally complex, and the applicant did not cause any delays. As regards what was at stake for the applicant, the Government argued that the subject of the dispute had been a difference of HUF 60 ( approximately EUR 0.2 0 ) between what had been awarded by the pension authorities ’ decisions of 7 July 2010 (see paragraph 17 above) and 5 November 2011 (see paragraph 20 above), respectively. For the Court, the amount to be taken into account is rather the difference between the pension as initially fixed on 1 September 2006 and as eventually established on 5 November 2011, that is, a monthly difference of approximately EUR 16. Leaving aside the interim payments disbursed to the applicant, that difference could have added up to a total of approximately EUR 1,300 during that period. Furthermore, the proceedings also concerned the question whether or not the adjusted pension should be paid for the period between 1 May 2004 and 19 March 2005. In this regard, an amount of more than EUR 2,000 (approximately 10. 5 times the monthly difference between the applicant ’ s initial pension of approximately EUR 250 and the eventually established amount of approximately EUR 465) was also arguably at stake.", "71. The Court has already held that special diligence is necessary in pension disputes (see, among other authorities, Pejčić v. Serbia, no. 34799/07, § 70, 8 October 2013). In such circumstances, having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see, mutatis mutandis, Gazsó v. Hungary, no. 48322/12, § 17, 16 July 2015).", "There has accordingly been a breach of Article 6 § 1 of the Convention on account of the length of proceedings.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "72. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "73. The applicant claimed EUR 15,000 in respect of non-pecuniary damage.", "74. The Government considered this claim excessive.", "75. Having regard to its case-law and practice and deciding on an equitable basis, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "76. The applicant also claimed EUR 200 for costs and expenses incurred before the domestic courts and EUR 8, 6 10 for those incurred before the Court. The latter sum corresponds to fifty-three hours of legal work, charged at an hourly rate of EUR 150, and twelve hours of paralegal work, charged at an hourly rate of EUR 50, to be billed by his lawyer.", "77. The Government considered those claims excessive.", "78. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.", "C. Default interest", "79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1964 and lives in Munich. He and Mr W. founded the T.AG, a directory enquiries service. The T.AG received, for a fee, the required subscriber information from DTAG. In 2007 and 2008 DTAG was ordered to refund the T.AG part of the fees paid, as they had been excessive.", "7. In 2005 the applicant brought an action against DTAG, claiming that as a result of the excessive prices paid by the T.AG, he and Mr W. had had to reduce their shares in the company before its stock market launch. For that reason, as well as on account of a lower valuation of the company on the day of the launch, he had sustained damage. On 28 May 2013 the Regional Court dismissed the claim.", "8. The applicant appealed against the Regional Court ’ s decision. In the reasons for the appeal, he made comments on, inter alia, EU law and the respective interpretation by the CJEU and the Federal Court of Justice. He did not request a referral of a particular question to the CJEU. During an oral hearing before the Court of Appeal the issue of EU law was discussed and the court explained that, in its view, the case-law of the CJEU was clear and that, in contrast to what had been suggested by the applicant, EU law was not applicable to the present case. In the same hearing the applicant called for the proceedings to be suspended and a preliminary ruling from the CJEU to be obtained. In submissions after the hearing he repeated his request and suggested the following wording for a possible preliminary question:", "“Does Article 86 TEC in the version of the Maastricht Treaty (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State which categorically excludes, for legal reasons, the liability of a dominant undertaking that damages a competing joint-stock company through its abusive prices in violation of Article 86 TEC (Article 102 TFEU), thus putting it at risk of bankruptcy, also for damage sustained by the founding shareholders of the damaged joint-stock company resulting from the fact that they take on new shareholders in order to avert bankruptcy, thereby reducing their own shares in the company?”", "9. On 2 July 2014 the Court of Appeal dismissed the applicant ’ s appeal. In its reasoning the court stated, in particular, that his claim could not be based on EU law, as the applicant was not covered by the protective purpose of any of its provisions. In that regard, the court gave a detailed account of why the applicant ’ s legal opinion was not supported by the CJEU ’ s case ‑ law, to which it referred extensively. It also referred to the relevant case-law of the Federal Court of Justice. As regards the question of whether the applicant should be granted leave to appeal on points of law, the Court of Appeal stated:", "“There is no reason to grant leave to appeal on points of law pursuant to Article 543 § 2 of the Code of Civil Procedure ( Zivilprozessordnung ). The chamber ’ s reasoning on the legal question as to who is covered by the protective purpose of Article 86 TEC, Article 82 § 2 EC and Article 102 TFEU and who is consequently eligible for compensation within the meaning of Article 823 § 2 of the Civil Code ( Bürgerliches Gesetzbuch ) or section 33(1) of the Prevention of Restrictions on Competition Act ( Gesetz gegen Wettbewerbsbeschränkungen ), have no significance in terms of legal principle (no fundamental significance). There is no need to clarify the legal question raised, since there are no doubts concerning the scope and interpretation of those legal provisions. The plaintiff ’ s opinion that anyone suffering damage on account of a violation of competition law should be entitled to damages, regardless of the law ’ s protective purpose, is not shared by anyone in academic writing or case-law.“", "10. The applicant filed a complaint against the refusal of leave to appeal on points of law. In his complaint he repeated his request for a referral to the CJEU and suggested the wording for two questions, one of them being a slightly modified version of the previously suggested question:", "“Does Article 86 TEC in the version of the Maastricht Treaty (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State which categorically excludes, for legal reasons, the liability of a dominant undertaking that damages a competing joint-stock company in violation of Article 86 TEC (Article 102 TFEU), thus putting it at risk of bankruptcy, also for damage sustained by the shareholders of the competing joint-stock company resulting from the fact that they take on new shareholders in order to avert bankruptcy, thereby reducing their own share of the company?", "...", "Does Article 86 TEC (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State as laid out in the first question for referral if the damaged shareholders are founding shareholders (investors) who, at the time of the damaging event, have a significant shareholding and, as members of the company ’ s executive board, decisively shape the company ’ s competitive conduct?”", "11. On 14 April 2015 the Federal Court of Justice rejected the applicant ’ s complaint:", "“... because the legal matter [had] not [been] of fundamental significance, because the complaints based on violations of procedural rights [had] failed to convince and because neither the further development of the law nor the interests in ensuring uniform adjudication [had required] a decision to be issued by the court hearing the appeal on points of law (Article 543 § 1 of the Code of Civil Procedure). More detailed reasoning can be dispensed with pursuant to the second clause of the second sentence of Article 544 § 4 of the Code of Civil Procedure.”", "12. The applicant filed a complaint concerning a violation of his right to be heard ( Anhörungsrüge ) and argued that the Federal Court of Justice had not provided adequate reasoning for the refusal of a referral to the CJEU. On 18 May 2015 the Federal Court of Justice rejected the applicant ’ s complaint, stating that it had examined his submissions but had not considered them sufficiently convincing and that a decision by a court of last resort had not required more detailed reasoning.", "13. On 25 February 2016 the Federal Constitutional Court declined to consider a constitutional complaint (1 BvR 1410/16) lodged by the applicant, without providing reasons." ]

[ "II. RELEVANT DOMESTIC AND EUROPEAN LAW AND PRACTICE", "A. German law and practice", "14. Article 543 of the Code of Civil Procedure reads:", "“ (1) An appeal on points of law may only be lodged if:", "1. Leave is granted by the appellate court in its judgment, or", "2. The court hearing the appeal on points of law has granted leave upon a complaint against the refusal to grant leave to appeal on points of law.", "(2) An appeal on points of law shall be admitted if:", "1. The legal matter is of fundamental significance, or", "2. Further development of the law or the interests in ensuring uniform adjudication require a decision to be issued by the court hearing the appeal on points of law.", "The court hearing the appeal on points of law shall be bound by the admission of the appeal by the appellate court.”", "15. The relevant parts of Article 544 of the Code of Civil Procedure read as follows:", "“ (1) Any refusal by the appellate court to grant leave to appeal on points of law may be subject to a complaint (complaint against the refusal of leave to appeal). ...", "(4) The court hearing the appeal on points of law shall rule on the complaint in a corresponding court order. The reasons on which the order is based shall be summarised briefly; that reasoning may be dispensed with where it would not contribute to clarifying the requirements for granting leave to appeal, or where the court finds for the party filing the complaint. The decision regarding the complaint is to be served upon the parties.", "...”", "16. According to the established case-law of the Federal Court of Justice and the Federal Constitutional Court a legal matter is, amongst other reasons, always of “fundamental significance” if it raises a question that requires a uniform interpretation of EU law, which is relevant for deciding the case, and makes a referral for a preliminary ruling during the appeal proceedings very probable. Therefore, refusal of leave to appeal (on points of law) includes the consideration that a referral to the CJEU is not required in that case (see, for example, Federal Court of Justice, I ZR 130/02, 16 January 2003; Federal Constitutional Court, 2 BvR 557/88, 22 December 1992; 1 BvR 2534/10, 3 March 2014; 1 BvR 1320/14, 8 October 2015). To provide the Federal Constitutional Court with the possibility to review such decisions for arbitrariness, it is necessary that the court establish the reasons for the decision either from the reasoning of the court of last resort or otherwise (see Federal Constitutional Court, 2 BvR 557/88, 22 December 1992; 1 BvR 2534/10, 3 March 2014; 1 BvR 1320/14, 8 October 2015). In case 2 BvR 557/88, the first-instance court had provided detailed reasoning concerning the relevant EU law and why there were no doubts regarding the correct interpretation of those provisions. It had relied on established case-law of the Federal Financial Court. Under these circumstances, the Constitutional Court found it acceptable that the Federal Financial Court had rejected the subsequent complaint against the refusal of leave to appeal without providing reasons. In case 1 BvR 1320/14, however, the Constitutional Court found a violation of the right to a decision by the legally competent court ( Recht auf den gesetzlichen Richter ) because the Federal Court of Justice had rejected a complaint against the refusal of leave to appeal on points of law and had not provided any reasoning. In that case, the court found that an obligation for a referral to the CJEU during the appeal on points of law proceedings was very likely ( lag nahe ) and that the Federal Court of Justice had not explained why it had rejected leave to appeal on points of law nevertheless. Even though the lower court had provided brief reasoning, there were no indications that the Federal Court of Justice had embraced it, particularly since the applicant in the proceedings had made extensive submissions in its complaint against the refusal of leave to appeal on points of law, disputing the reasoning of the lower court.", "B. European Union law and practice", "17. Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) provides as follows:", "“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:", "(a) the interpretation of the Treaties;", "(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union ...;", "Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.", "Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”", "18. Interpreting this provision, the CJEU held in the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health (C ‑ 283/81, judgment of 6 October 1982, ECLI:EU:C:1982:335, § 21) that:", "“... a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court [of Justice], unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”", "19. In the case of Kenny Roland Lyckeskog (C-99/00, 4 June 2002, ECLI:EU:C:2002:329) the CJEU decided, among other things, the question of whether a national court which in practice was the court of last resort in a case, because a declaration of admissibility was needed in order for the case to be reviewed by the country ’ s supreme court, was a court within the meaning of the third paragraph of Article 234 EC (current Article 267 of the TFEU). The court held:", "“16. Decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a ‘ court or tribunal of a Member State against whose decisions there is no judicial remedy under national law ’ within the meaning of Article [267]. The fact that examination of the merits of such appeals is subject to a prior declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy.", "17. That is so under the Swedish system. The parties always have the right to appeal to the Högsta domstol against the judgment of a hovrätt, which cannot therefore be classified as a court delivering a decision against which there is no judicial remedy. Under Paragraph 10 of Chapter 54 of the Rättegångsbalk, the Högsta domstol may issue a declaration of admissibility if it is important for guidance as to the application of the law that the appeal be examined by that court. Thus, uncertainty as to the interpretation of the law applicable, including Community law, may give rise to review, at last instance, by the supreme court.", "18. If a question arises as to the interpretation or validity of a rule of Community law, the supreme court will be under an obligation, pursuant to the third paragraph of Article [267], to refer a question to the Court of Justice for a preliminary ruling either at the stage of the examination of admissibility or at a later stage.”", "20. This judgment was referred to in a later judgment of the CJEU ( Cartesio Oktató és Szolgáltató bt, C-210/06, 16 December 2008, ECLI :EU:C:2008:723 ), in which it held:", "“76. The Court has already held that decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of ‘ a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law ’ within the meaning of the third paragraph of Article 267. The fact that the examination of the merits of such challenges is conditional upon a preliminary declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy ( Lyckeskog, paragraph 16).", "77. That is true a fortiori in the case of a procedural system such as that under which the case before the referring court must be decided, since that system makes no provision for a preliminary declaration by the supreme court that the appeal is admissible and, instead, merely imposes restrictions with regard, in particular, to the nature of the pleas which may be raised before such a court, which must allege a breach of law.”", "21. As regards the initiation of preliminary ruling proceedings, the CJEU stated in the case of György Katz v. István Roland Sós (C-404/07, 9 October 2008, ECLI:EU:C:2008:553):", "“37. ... It is for the national court, not the parties to the main proceedings, to bring a matter before the Court of Justice. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties may not change their tenor ...”", "22. In its judgment of 9 November 2010 in the case of VB Pénzügyi Lízing Zrt. v. Ference Schneider (C-137/08, ECLI :EU:C:2010:659 ), the CJEU stated:", "“28. ... the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties ...”", "23. On 25 November 2016 the CJEU published its (updated) Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2016/C 439/01). The relevant part reads as follows:", "“3. The jurisdiction of the Court to give a preliminary ruling on the interpretation or validity of EU law is exercised exclusively on the initiative of the national courts and tribunals, whether or not the parties to the main proceedings have expressed the wish that a question be referred to the Court. In so far as it is called upon to assume responsibility for the subsequent judicial decision, it is for the national court or tribunal before which a dispute has been brought – and for that court or tribunal alone – to determine, in the light of the particular circumstances of each case, both the need for a request for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "24. The applicant complained that the domestic courts had refused to refer questions to the CJEU for a preliminary ruling and had failed to provide adequate reasoning for this refusal, in breach of his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "25. The Government contested that argument.", "A. Admissibility", "26. The Government submitted that if the Court examined each question suggested for referral separately, the application would be partially inadmissible for non-exhaustion of domestic remedies. They argued that in his complaint concerning a violation of his right to be heard and his constitutional complaint, the applicant had neither explicitly complained about the lack of reasoning for refusing the second suggested question nor pointed to the fact that this question had only been suggested for the first time after the judgment of the Court of Appeal. In contrast, during the domestic proceedings the applicant had made no distinction between the two questions and had complained about the refusal to refer them to the CJEU and the lack of reasoning in general.", "27. The applicant argued that he had exhausted the available domestic remedies by lodging a complaint concerning a violation of his right to be heard and a constitutional complaint. In both complaints he had included both questions and complained that neither the Court of Appeal nor the Federal Court of Justice had provided adequate reasoning for the refusal to refer them to the CJEU for a preliminary ruling.", "28. The Court observes that the second question suggested by the applicant is only a variation of the first question, that both questions concern the same issue and that the applicant did not distinguish between them in the domestic proceedings. In addition, the Court notes that, while the parties in domestic proceedings may suggest questions for referral, the final wording of the question or questions is done by the court referring questions to the CJEU (see paragraphs 22 and 23 above). It concludes that the issues in the present case are the refusal to refer a case to the CJEU and the adequacy of the courts ’ reasoning, and not whether a particular question suggested by the applicant was referred to the CJEU for a preliminary ruling. Differentiating between the two questions would therefore be artificial. Consequently, the condition under which the Government pleaded partial non-exhaustion of the application is not fulfilled.", "29. In sum, the Court notes that the application is neither inadmissible for non-exhaustion of domestic remedies nor manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "30. The applicant argued that the dispute before the domestic courts had raised an issue under EU law, which had to date not been decided by the CJEU. By arbitrarily refusing to refer questions to the CJEU for a preliminary ruling, the domestic courts had violated Article 6 of the Convention. In addition, the domestic courts had not provided adequate reasoning for the refusal. The Federal Court of Justice had been the court against whose decisions there had been no judicial remedy under national law within the meaning of Article 267 of the TFEU. It had therefore been obliged, pursuant to the Court ’ s case-law ( Dhahbi v. Italy, no. 17120/09, 8 April 2014, and Schipani and Others v. Italy, no. 38369/09, 21 July 2015), to provide reasons for the refusal, based on the CJEU ’ s judgment in the CILFIT case (see paragraph 18 above). However, the Federal Court of Justice had provided no reasons whatsoever and had only repeated the wording of Article 543 of the Code of Civil Procedure. It also had not made any reference to the reasoning of the Court of Appeal. The Court of Appeal, which had not been the court of last resort, had at least considered the question of EU law, but had neither explicitly refused a referral to the CJEU nor referred to the CILFIT criteria established in the CJEU case-law. In particular, the Court of Appeal had not explained why the correct application of Community law had been so obvious as to leave no scope for any reasonable doubt.", "31. The Government argued that the refusal to refer the case to the CJEU had not been arbitrary, as the correct application of EU law had been so obvious as to leave no scope for any reasonable doubt about it. The Federal Court of Justice and the Court of Appeal had made it sufficiently evident in their decisions that there was no obligation to refer the case to CJEU for that reason. The Court of Appeal, while not a court of last resort and therefore not obliged to refer questions to the CJEU for a preliminary ruling, had discussed EU law and the CJEU ’ s case law in detail and had concluded that the applicant ’ s legal opinion was not reflected in the CJEU ’ s case-law or academic writing. It therefore followed from the Court of Appeal ’ s decision that a referral had not been required. In addition, the Court of Appeal had also had to examine the question of whether a referral was necessary when deciding whether leave to appeal on points of law had to be granted, since if a question had arisen concerning EU law that had been of relevance for the case, the matter would have had “fundamental significance” within the meaning of Article 543 of the Code of Civil Procedure and therefore required leave to appeal on points of law to be granted. Consequently, the decision of the Court of Appeal to refuse leave to appeal on points of law had also stated that a referral to the CJEU was not necessary. For the same reason, the reasoning of the Federal Court of Justice had been sufficient, because holding that the case had no “fundamental significance” implicitly meant that no referral to the CJEU was necessary. In addition, the Federal Court of Justice had endorsed the reasoning of the Court of Appeal by refusing the applicant ’ s complaint against the refusal of leave to appeal on points of law and dispensing with further reasoning pursuant to Article 544 § 4 of the Code of Civil Procedure.", "32. The third party submitted that the Convention did not oblige the national courts to provide detailed answers to any and every argument raised before it. In particular, when decisions only concerned the question of whether leave to appeal should be granted, there was no requirement to give specific reasons.", "2. The Court ’ s assessment", "33. The Court reiterates that it is for the national courts to interpret and apply domestic law, if applicable in conformity with EU law, and to decide whether it is necessary to seek a preliminary ruling from the CJEU to enable them to give judgment. It reiterates that the Convention does not guarantee, as such, the right to have a case referred by a domestic court to the CJEU for a preliminary ruling. The Court has previously observed that this matter is, however, not unconnected to Article 6 § 1 of the Convention since a domestic court ’ s refusal to grant a referral may, in certain circumstances, infringe the fairness of proceedings where the refusal proves to have been arbitrary. Such a refusal may be deemed arbitrary in cases where the applicable rules allow no exception to the granting of a referral or where the refusal is based on reasons other than those provided for by the rules, or where the refusal was not duly reasoned (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 2011, §§ 54 ‑ 59). The obligation for domestic courts to provide reasons for their judgments and decisions serves to enable the parties to understand the judicial decision that has been given; which is a vital safeguard against arbitrariness. In addition, it serves the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part (see Taxquet v. Belgium [GC], no. 926/05, §§ 90 and 91, ECHR 2010, with further references).", "34. However, the duty to give reasons cannot be understood to mean that a detailed answer to every argument is required, and the extent of it varies according to the nature of the decision and must be determined in the light of the circumstances of the case (ibid.). It is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question of whether or not a court has failed to fulfil the obligation to provide reasons − deriving from Article 6 of the Convention − can only be determined in the light of the circumstances of the case (see Borovská and Forrai v. Slovakia, no. 48554/10, § 57, 25 November 2014; García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; Kok v. the Netherlands ( dec. ), no. 43149/98, 4 July 2000; and Ruiz Torija v. Spain, no. 18390/91, § 29, 9 December 1994).", "35. It is acceptable under Article 6 § 1 of the Convention for the national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see Vogl v. Germany ( dec. ), no. 65863/01, 5 December 2002; John v. Germany ( dec. ) no. 15073/03, 13 February 2007), particularly in cases concerning applications for leave to appeal (see Sawoniuk v. The United Kingdom ( dec. ), no. 63716/00, 29 May 2001; Kukkonen v. Finland (no. 2), no. 47628/06, § 24, 13 January 2009; and Bufferne v. France ( dec. ), no. 54367/00, ECHR 2002 ‑ III (extracts)). In dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court ’ s decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I) or the reasons for a decision may be also implied from the circumstances in some cases (see Sawoniuk, cited above).", "36. These principles are reflected in the Court ’ s case-law, which has been summarised recently in the case of Baydar v. the Netherlands ( no. 55385/14, §§ 42-44, 24 April 2018), where the issue of due reasoning by the domestic courts when refusing a request for a referral to the CJEU was considered:", "“42. For example, the Court has held that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable under Article 6 of the Convention for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John v. Germany ( dec. ) no. 15073/03, 13 February 2007) or for lack of prospects of success without dealing explicitly with the request (see Wallishauser v. Austria (No. 2), no. 14497/06, § 85, 20 June 2013; see also Rutar Marketing D.O.O. v. Slovenia ( dec. ), no. 62020/11, § 22, 15 April 2014 and Moosbrugger v. Austria, no.44861/98, 25 January 2000).", "43. Furthermore, in the case of Stichting Mothers of Srebrenica and others v. the Netherlands (no. 65542/12, § 173, ECHR 2013) the Court found that the summary reasoning used by the Supreme Court to refuse a request for a preliminary ruling was sufficient, pointing out that it followed already from a conclusion reached in another part of the Supreme Court ’ s judgment that a request to the CJEU for a preliminary ruling was redundant. In Astikos Kai Paratheristikos Oikodomikos Synetairismos Axiomatikon and Karagiorgos v. Greece (( dec. ), nos. 29382/16 and 489/17, § 47, 9 May 2017) the Court observed that the preliminary ruling requested by the applicant in that case would not have changed the conclusion reached by the Council of State of Greece since his appeal had been declared inadmissible due to the non-compliance with statutory requirements for the admissibility of appeal.", "44. In other cases, not concerning a context of domestic accelerated proceedings, the Court has held that national courts against whose decisions there is no remedy under national law are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the CJEU ( Ullens de Schooten and Rezabek, cited above, § 62). In Dhahbi v. Italy (no. 17120/09, § 31, 8 April 2014; see also Schipani and others v. Italy, no. 38369/09, § 42, 21 July 2015), the Court formulated the following principles regarding the domestic courts ’ duty under Article 6 of the Convention when a request is made for a referral to the CJEU for a preliminary ruling, and where the request was accompanied by a due argumentation:", "‘ ... Article 6 § 1 requires domestic courts to provide reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling;", "– when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal was duly accompanied by such reasoning;", "– whilst this verification has to be carried out in a thorough manner, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law; and", "– in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (current Article 267 of the TFEU), this means that national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of EU law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU. They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. ’ ”", "37. Turning to the circumstances of the present case, the Court observes that the Federal Court of Justice was the court of last resort within the meaning of the third paragraph of Article 267 of the TFEU, even though it “only” decided on the applicant ’ s complaint against the refusal of leave to appeal on points of law (see paragraphs 19 and 20 above). It also observes that the Federal Court of Justice only briefly indicated the reasons for refusing leave to appeal on points of law and dispensed with any further reasoning pursuant to Article 544 § 4 of the Code of Civil Procedure, to which it referred in its decision.", "38. However, the Court also observes that the applicant requested a referral to the CJEU not only before the Federal Court of Justice but also earlier before the Court of Appeal. The Court of Appeal, while not the court of last resort within the meaning of Article 267 of the TFEU, examined EU law in detail and, in the reasoning of its judgment, referred extensively to the CJEU ’ s case-law. It also stated in the judgment that “[t]here [was] no need to clarify the legal question raised, since there [were] no doubts concerning the scope and interpretation of those legal provisions.” Moreover, during the oral hearing the issue of EU law was discussed between the parties and the court explained that, in its view, the case-law of the CJEU was clear and that, in contrast to what had been suggested by the applicant, EU law was not applicable to the case. In sum, the Court concludes that the Court of Appeal explained why there was no reasonable doubt concerning the correct application of German and EU law and how the question raised had had to be resolved.", "39. The Court further observes that the Court of Appeal had to decide, in accordance with Article 543 of the Code of Civil Procedure, whether the case was of “fundamental significance” and whether leave to appeal on points of law should therefore be granted. It notes, as has been pointed out by the Government, that, under the established case-law of the Federal Court of Justice and the Federal Constitutional Court, a legal matter is always of “fundamental significance” if it raises a question that requires a uniform interpretation of EU law, which is relevant for deciding the case, and makes a referral for a preliminary ruling during the appeal proceedings very probable (see paragraph 16 above). It also notes that, based on this case-law, a refusal of leave to appeal on points of law includes the consideration that a referral to the CJEU is not required in the case in question. The Court concludes that the Court of Appeal therefore considered the applicant ’ s referral request and denied it by refusing leave to appeal on points of law.", "40. For the same reason, the Court considers that the Federal Court of Justice, which was obliged to decide referrals pursuant to Article 267 of the TFEU, refused to acknowledge the need for a referral to the CJEU by confirming that it did not concern a legal matter of “fundamental significance”.", "41. Moreover, the Court points out that it has previously accepted that the reasons for a decision by a superior court may be implied from the circumstances in some cases or from endorsement of the reasoning of the lower court (see paragraph 35 above). In that regard, it observes that the Federal Constitutional Court also only requires that the reasons for a refusal be established either from the reasoning of the court of last resort or otherwise, such as the reasoning of a lower court (see paragraph 16 above). Having regard to the fact that the Court of Appeal provided detailed reasoning concerning the refusal of leave to appeal on points of law, after discussing the issue of EU law with the parties in the oral hearing, the Court considers that the circumstances of the present case enabled the applicant to understand the decision of the Federal Court of Justice.", "42. Taking into account the purpose of the duty of the domestic courts to provide reasons under Article 6 of the Convention (see paragraph 33 above) and examining the proceedings as a whole, the Court notes that the domestic courts provided the applicant with a detailed explanation why the requested referral to the CJEU had been refused. Notwithstanding the fact that the Federal Court of Justice was the court of last resort within the meaning of Article 267 of the TFEU, the Court considers that in the specific circumstances of the present case it was acceptable that the Federal Court of Justice dispensed with providing more comprehensive reasoning and merely referred to the relevant legal provisions when deciding the applicant ’ s complaint against the refusal of leave to appeal on points of law.", "43. The foregoing considerations are sufficient to enable the Court to conclude that the refusal of the referral, which does not appear arbitrary, was sufficiently reasoned. There has accordingly been no violation of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant is registered under Hungarian law as a cooperative based in Aranyosgadány.", "7. The applicant ’ s aim is to support its members in their agricultural activity, in particular by purchasing expensive machines and lending them to its members free of charge. The members pay a regular “contribution fee” to the cooperative.", "8. The applicant considered that the lending of machines constituted the very essence of its economic activities. It therefore deducted the value-added tax paid in respect of the machines from the tax which it was liable to pay.", "9. In 2008 the Hungarian Tax Authority fined the applicant, having found that the lending of machines to members free of charge was not an “economic activity” within the meaning of Act no. LXXIV of 1992 on Value-Added Tax. As a consequence, the applicant was not entitled to deduct the tax paid on the goods it purchased.", "A. The first set of proceedings", "10. The applicant challenged the decision of the Tax Authority before the administrative courts. Pointing to the special provisions applying to cooperatives and to the fact that its members paid contribution fees, it argued, on the basis of domestic law, that the service in question was to be considered a genuine economic activity.", "11. On 17 February 2009 the Baranya County Court upheld the administrative decision. The Supreme Court, in review proceedings, upheld that judgment on 26 November 2009. In response to the applicant ’ s argument to the effect that the contribution fee paid by members should be taken into account as a “consideration” for the lending of machines, rendering the applicant ’ s activity an “economic” one, the Supreme Court referred to the Aardappelenbewaarplaats judgment of the CJEU (C-154/80, EU:C:1981:38), in which that court had held that “a provision of services for which no definite subjective consideration is received does not constitute a provision of services ‘ against payment ’ ”.", "B. The second set of proceedings", "12. On 9 December 2010 the applicant, represented by a different lawyer from the one who had represented it in the previous set of proceedings, introduced a second set of proceedings, seeking damages against the Supreme Court before the Budapest Regional Court. It alleged that the Supreme Court had violated European Union law on account of its failure to apply, of its own motion, Article 17 of the Sixth Council Directive 77/388/EEC (see paragraph 30 below) in its 2009 judgment and on account of the wrongful qualification of the applicant ’ s activity for the purposes of the value-added tax deduction. The applicant argued that the European Union law provision analysed in the Aardappelenbewaarplaats case was Article 8 of the Second Council Directive 67/228 (defining the basis for assessment of value-added tax), rather than Article 17 of the Sixth Council Directive 77/388/EEC (concerning tax deduction). It was the latter that should have been directly applicable in the case before the Supreme Court. In the applicant ’ s view, the Aardappelenbewaarplaats case was about whether turnover tax should be imposed on storage services provided free of charge for members of a cooperative association, whereas the case before the Supreme Court had concerned a different question, namely the deductibility of input VAT. Alleging the Supreme Court ’ s liability for judicial malpractice, the applicant relied on the Köbler judgment of the CJEU (see paragraph 31 below). It requested that the Budapest Regional Court obtain a preliminary ruling from the CJEU as to the conformity of the Supreme Court ’ s judgment with European Union law and the conditions for establishing whether the Supreme Court might be liable for a wrongful judgment.", "13. On 31 May 2011 the Budapest Regional Court rejected the applicant ’ s claim against the Supreme Court. It held that in the main proceedings, the Supreme Court had been bound by the applicant company ’ s claim taking issue only with the alleged absence of a “consideration” and the resulting qualification of its service as not being an “economic activity”. The Regional Court was of the view that in that respect the Supreme Court had duly examined the relevant European Union law of its own motion.", "14. Without requesting a preliminary ruling, the Budapest Regional Court held that the Köbler judgment was not relevant in the case because the applicant had sought to sue the Supreme Court on the basis of the Hungarian Civil Code, rather than seeking to sue the Hungarian State itself under European Union law.", "15. The applicant appealed and requested the second-instance court to obtain a preliminary ruling also on the question of whether the Köbler principles were applicable if the reparation claim was directed against the Supreme Court and not the State.", "16. On 28 August 2012 the Budapest Court of Appeal upheld the first-instance judgment, without requesting a preliminary ruling. It accepted the applicant ’ s argument that the reasoning of the first-instance judgment was erroneous with respect to the alleged irrelevance of the Köbler case, but held that, in any event, the applicant ’ s claim was ill-founded on other grounds. Notably, it pointed to the fact that during the first set of proceedings (see paragraph 10 above) the applicant had failed to refer to European Union law, and considered that this fact in itself had rendered the applicant ’ s claim unfounded.", "17. Arguing that European Union law was to be applied proprio motu, even without an explicit reference from the plaintiff, the applicant requested a review of the final judgment by the Kúria (the historical appellation by which the Supreme Court was renamed in 2012, see the first sentence of point 36 of the Constitutional Court ’ s decision cited in Baka v. Hungary [GC], no. 20261/12, § 55, ECHR 2016). It also reiterated its request that the case be referred for a preliminary ruling and proposed that the Kúria also ask whether the liability of a State under the Köbler principles may be subjected to the precondition that an explicit reference to the relevant provisions of European Union law must be made by the plaintiff in the main – in the present case first – proceedings.", "18. The questions thus proposed by the applicant for the purposes of a preliminary ruling read as follows:", "“1. Does the reparation claim fall within the scope of European law in civil proceedings, such as actions in damages based on section 349 of the Hungarian Civil Code, brought by an individual against the Supreme Court of the Member State concerned, in which the plaintiff claims that the Supreme Court has violated a right conferred on him by a directly applicable provision of European law in previous administrative proceedings. If so, to what extent?", "2. In the common system of value-added tax, with regard to the specificities thereof, may Council Directive 77/388/EEC, especially its Article 17(2)(a), be interpreted as meaning that a national measure (e.g. a judgment) is incompatible with it if it denies the right of a cooperative, otherwise subject to value-added tax in the Member State concerned, to deduct input VAT paid on machines purchased, for the sole reason that the cooperative handed over those machines to its members, a ‘ grouping of growers ’, without consideration?", "3. Is the liability of a Member State ’ s Supreme Court excluded, under the rules of European law, by the sole fact that an individual did not allege explicitly the infringement of a specific provision of European law in the judicial proceedings for the review of an administrative decision denying him the right to tax deduction? Or should the domestic court enforce of its own motion the directly applicable provision of European law (in this case, Article 17(2 )( a) of the Sixth Directive)?", "4. Is the infringement sufficiently serious if the Supreme Court of a Member State denies, in administrative proceedings, an individual ’ s right to tax deduction without analysing the underlying provision of European law directly or referring the case for a preliminary ruling, in circumstances where the reasoning of the refusal to refer the case [to the CJEU] is based on the Supreme Court ’ s reliance on a judgment of the [CJEU] adopted on a different subject and where this latter court has not yet adopted a ruling on the issue at hand?”", "19. On 2 October 2013 the Kúria dismissed in a procedural order ( végzés ) the applicant ’ s request for a preliminary ruling. Firstly, it noted that it was not in dispute between the parties that the case fell within the scope of European Union law; the referral of the first question would therefore have been futile. Secondly, concerning the second, third and fourth questions, the Kúria held that they could have been considered in the first proceedings, but that they fell outside the scope of the action in damages brought against the Supreme Court on account of alleged judicial malpractice. It further held that in the framework of the action in damages, assessment of the consequences of the applicant ’ s failure, in the first set of proceedings, to make explicit allegations of an infringement of European Union law (see question 3 quoted in paragraph 18 above) was the task of the national courts, and that it did not raise any question of interpretation that would fall under the jurisdiction of the CJEU.", "20. The applicant complained to the Kúria about the above refusal but in vain; on 4 December 2013 it held, in a procedural order ( végzés ), that no appeal lay against such a decision.", "21. On 11 December 2013 the Kúria upheld, in a judgment ( ítélet ), the final decision of the Budapest Court of Appeal. It reiterated that the applicant could have relied on the Sixth Council Directive and put forward its arguments concerning the allegedly correct interpretation of domestic law in the light of European Union law before the Supreme Court in the 2009 proceedings. Since the applicant had failed to do so, the Supreme Court had indeed been prevented, by force of the applicable procedural rules, from examining such arguments as raised in the subsequent proceedings for damages, concerning the compatibility of the final judgment of 2009 with European Union law. Therefore, the Supreme Court could not bear responsibility for the infringement of European Union law alleged by the applicant. The judgment of the Kúria was served on the applicant on 7 February 2014.", "22. On 13 March 2014 the applicant lodged a constitutional complaint under section 27 of the Constitutional Court Act (see Mendrei v. Hungary ( dec. ), no. 54927/15, § 13, 19 June 2018), claiming that the proceedings before the Kúria had been unfair on account of the latter ’ s allegedly arbitrary refusal to refer the case for a preliminary ruling. Contending that the Constitutional Court should be considered as a “court or tribunal” for the purposes of Article 267 of the TFEU, the applicant also requested the Constitutional Court to turn to the CJEU in order to enquire whether an “arbitrary” refusal of a last-instance jurisdiction to refer a case for a preliminary ruling may violate the party ’ s right to a fair trial guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (see paragraph 29 below) and, if so, under what conditions such a refusal might be considered arbitrary. The applicant argued, in particular, that the Kúria had failed to recognise an issue of fundamental importance, namely that whether a certain legal issue (the consequences of a plaintiff ’ s failure to put forward explicit allegations as to an infringement of European Union law) fell within the ambit of national law or European Union law was itself a question belonging necessarily to the realm of European law. Ignoring that concept, the Kúria had “solved” the problem in an arbitrary fashion, that is, by refusing the reference and barring the applicant ’ s access to a “lawful judge”, the CJEU in the circumstances.", "23. The applicant ’ s constitutional complaint contained the following passages:", "“The complainant ... does not want to call into question the merits of the Kúria ’ s impugned judgment in the present procedure [but rather complains that] the Kúria acted unfairly in the review proceedings ...", "The Kúria ’ s procedure was in breach of the claimant ’ s constitutional right to a fair trial, guaranteed by Article XXVIII (1) of the Fundamental Law, in so far as the Kúria acted arbitrarily in omitting to refer the case for a preliminary ruling. ...", "The Kúria failed to explain, in line with the Cilfit requirements ... why and how it had deemed itself exempt from the obligation to refer a question [on the interpretation of EU law to the CJEU for a preliminary ruling]. ...", "[I]n the light of the above, the Kúria failed to comply with its obligation to refer [a question to the CJEU for a preliminary ruling] and that in an arbitrary, grossly unprofessional manner ...”", "24. On 19 May 2014 the Constitutional Court rejected the constitutional complaint as inadmissible, without putting forward a preliminary ruling request (see decision no. 3165/2014. (V.23.), referred to in Somorjai v. Hungary, no. 60934/13, § 34, 28 August 2018). It held that the question whether a request for reference to the CJEU should be made or not was to be decided by the judges hearing the case in the ordinary courts, and that the Constitutional Court lacked jurisdiction to review such decisions. It further noted that the only claim an applicant might make in constitutional complaint proceedings initiated under section 27 of Act no. CLI of 2011 on the Constitutional Court was that a judgment be quashed. Consequently, no request for a preliminary ruling was possible under that law, and the applicant ’ s request to that effect had to be rejected.", "25. The Constitutional Court ’ s decision contained the following passage:", "“[The applicant] was of the view that the rejection by the Kúria of his request to have the case referred to the [CJEU] had been arbitrary in that the Kúria should have provided professionally appropriate, objective and duly detailed reasons in that respect but, in the applicant ’ s opinion, it had failed to do so. In that connection, the applicant referred to the requirements contained in the [CJEU] ’ s Cilfit and Köbler judgments ...”", "Apart from that passage, the decision did not address the issue of adequate reasoning by the Kúria." ]

[ "II. RELEVANT DOMESTIC AND EUROPEAN UNION LAW", "26. Certain provisions concerning the Constitutional Court ’ s power of review in connection with constitutional complaints were set out in Mendrei (cited above, §§ 12-15).", "Section 43 of the Constitutional Court Act, which was not quoted in Mendrei (cited above), provides as follows:", "“(1) If the Constitutional Court, in the course of proceedings provided for in section 27 and on the basis of a constitutional complaint, declares that a judicial decision is contrary to the Fundamental Law, it shall quash the decision.", "(2) Provisions of Acts that contain regulations in respect of court proceedings shall be applied to the procedural consequence of a Constitutional Court decision that quashes a judicial decision.", "(3) In court proceedings conducted as a consequence of the quashing of a judicial decision by the Constitutional Court, the decision of the Constitutional Court as to the constitutional issue shall be adhered to.", "(4) The Constitutional Court, when it quashes a judicial decision, may also quash judicial decisions or the decisions of other authorities which were reviewed by the given decision.”", "27. The provisions of the old Code of Civil Procedure (Act no. III of 1952) pertaining to the reference for a preliminary ruling, as in force at the material time, were set out in Somorjai, cited above, §§ 28 and 36.", "Article 361 of the old Code of Civil Procedure provided as follows:", "“In order to provide redress following a constitutional complaint, the Kúria shall decide as follows: ...", "(c) if the Constitutional Court has quashed a judicial decision, [the Kúria ] shall ... remit the case to the first or second-instance court for new proceedings and a new decision; or order the adoption of a new decision in respect of an application for review.”", "28. The relevant European Union law and the case-law of the CJEU pertaining to the preliminary ruling procedure was outlined in, among other authorities, Somorjai (cited above, §§ 38-41) and Baydar v. the Netherlands (no. 55385/14, §§ 21-29, 24 April 2018).", "29. Article 47 of the Charter of Fundamental Rights of the European Union provides, in so far as relevant:", "Right to an effective remedy and to a fair trial", "“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.", "Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. ...”", "30. Article 17(2 )( a) of the Sixth Directive (Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes), as amended by Article 28f thereof, provides:", "“In so far as the goods and services are used for the purposes of his taxable transactions, the taxable person shall be entitled to deduct from the tax which he is liable to pay:", "(a) [VAT] due or paid within the territory of the country in respect of goods or services supplied or to be supplied to him by another taxable person; ...”", "31. In its Köbler judgment (C-224/01, EU :C:2003:513, point 1 of the operative part), the CJEU ruled as follows:", "“The principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest. It is for the legal system of each Member State to designate the court competent to determine disputes relating to that reparation.”", "32. In connection with the role of the national courts in application of European Union law, the CJEU held, among other things, as follows (see, respectively, joined cases C-430/93 and C-431/93 Van Schijndel, EU:C:1995:441, point 2 of the operative part; and C-2/06 Kempter, EU:C:2008:78, paragraph 45):", "“Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim.”", "“[W] hile Community law does not require national courts to raise of their own motion a plea alleging infringement of Community provisions where examination of that plea would oblige them to go beyond the ambit of the dispute as defined by the parties, they are obliged to raise of their own motion points of law based on binding Community rules where, under national law, they must or may do so in relation to a binding rule of national law ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "33. The applicant complained of the failure of the domestic courts, namely the Kúria and the Constitutional Court, to refer questions raised by its case to the CJEU for a preliminary ruling – in breach of the conditions laid down in the CJEU ’ s case-law. The applicant contended that this failure had violated its right of access to a court, notably the CJEU, which had jurisdiction to give the necessary mandatory interpretation of the European Union law provisions at issue. It relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "A. Admissibility", "1. Compliance with the six-month time-limit", "34. The Government argued that the application had been submitted outside the six-month time-limit, which had started to run when the Kúria ’ s judgment had been served on the applicant on 7 February 2014. In the Government ’ s view, a constitutional complaint was a legal avenue to be exhausted when it came to the unfairness of proceedings and, in particular, a lack of appropriate reasoning (see also Somorjai v. Hungary, no. 60934/13, § 44, 28 August 2018). However, they contended that in the present case the proceedings before the Constitutional Court could not be taken into account for the assessment of the applicant ’ s compliance with the six-month time ‑ limit, since its complaint had been rejected as inadmissible by the Constitutional Court and thus the proceedings could not be considered an effective remedy for the purposes of Article 35 § 1 of the Convention.", "35. The applicant argued that the Constitutional Court had not rejected its constitutional complaint on purely procedural grounds; rather, the decision contained arguments pertaining to the merits of the case. It further contended that the application also challenged the Constitutional Court ’ s decision, and in that respect it had in any event been submitted within the six-month time-limit.", "36. The Court has already found that a constitutional complaint is normally an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention (see Szalontay v. Hungary ( dec. ), no. 71327/13, 12 March 2019). It further notes that although the Constitutional Court eventually rejected the applicant company ’ s constitutional complaint, it did not do so on formal or procedural grounds; rather, it embarked on an analysis of the case and held that it lacked jurisdiction; in reaching this conclusion, it in fact partly dealt with the substance of the applicant company ’ s complaint (see mutatis mutandis Uhl v. Germany ( dec. ), no. 64387/01, 6 May 2004; see also Schwarzenberger v. Germany, no. 75737/01, §§ 21 and 31, 10 August 2006; and Storck v. Germany, ( dec. ), no. 61603/00, 26 October 2004). Since moreover this outcome cannot be considered foreseeable by the applicant company when it approached the Constitutional Court, the Court is satisfied that the constitutional complaint was a remedy that it could reasonably engage in. The relevant date is therefore the date of the final decision given by the Constitutional Court, that is to say, 19 May 2014, and it is appropriate to reject the Government ’ s objection concerning compliance with the six-month time-limit.", "2. Applicability of Article 6 of the Convention", "37. The Government further argued that the Constitutional Court ’ s task was to determine issues of constitutional law, rather than those of civil rights and obligations. On that ground, they requested the Court to declare the application incompatible ratione materiae with Article 6 of the Convention in so far as it concerned the Constitutional Court ’ s alleged interference with the applicant ’ s rights guaranteed by that provision.", "38. In the applicant ’ s view, when the Constitutional Court decided on a constitutional complaint lodged against a civil judgment of the Kúria, it was carrying out a civil judicial function. Its proceedings therefore fell within the scope of Article 6.", "39. As regards the question of the applicability of Article 6 to the constitutional complaint procedure, the Court notes that in accordance with its well-established case-law the relevant test is whether the result of the Constitutional Court proceedings is capable of affecting the outcome of a dispute before the ordinary courts that otherwise falls within the scope of Article 6 (see, mutatis mutandis, Süßmann v. Germany, 16 September 1996, § 39, Reports of Judgments and Decisions 1996 ‑ IV, and Gast and Popp v. Germany, no. 29357/95, § 64, ECHR 2000 ‑ II).", "40. The Court observes that under the old Code of Civil Procedure, the consequence of a successful constitutional complaint directed against a judicial decision under section 27 of the Constitutional Court Act was that the decision in question had to be quashed by the Constitutional Court and the case had to be remitted for new consideration to the first or second-instance court or to the Kúria (see paragraphs 26 and 27 above). Therefore, the result of the Constitutional Court proceedings at issue in the present case was capable of affecting the outcome of the dispute before the ordinary courts.", "41. It follows that Article 6 of the Convention is applicable to the impugned proceedings before the Constitutional Court and that the Government ’ s objection as to the incompatibility ratione materiae of this part of the complaint with the aforementioned provision of the Convention must be rejected.", "42. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "43. The applicant argued that although the Kúria had referred, in its decision of 2 October 2013 (see paragraph 19 above), to the CJEU ’ s Cilfit requirements and had provided, formally, certain reasons for its decision rejecting the request to refer the case for a preliminary ruling, in substance it had failed to comply with the criteria and methodological requirements set forth in Cilfit and in Ullens de Schooten and Rezabek v. Belgium (nos. 3989/07 and 38353/07, §§ 56-62, 20 September 2011). The applicant submitted, in particular, that the Kúria had not cited any case in which the CJEU had already examined the main issue raised by the present case (notably the exclusion of Köbler -type liability when the plaintiff had not invoked the relevant European Union law provision in the previous set of proceedings). It was of the view that the Kúria had acted in an arbitrary and abusive manner when it had simply referred to the Cilfit judgment but rejected the request to refer the case to the CJEU for a preliminary ruling purely on the basis of considerations pertaining to domestic law.", "44. The applicant company further contended that the Constitutional Court had rejected its request for a preliminary reference without providing any reason whatsoever as to how and why it had come to that conclusion and, in particular, without giving consideration to its potential qualification as “a tribunal against whose decisions there is no judicial remedy” for the purposes of Article 267 of the TFEU, thus violating its right to access to a court, notably the CJEU.", "45. The Government argued that the Kúria had provided ample and appropriate reasons as to why it had considered it unnecessary to refer the relevant questions to the CJEU for a preliminary ruling. They submitted that the CJEU had accepted the possible limitation of the national courts ’ obligation to examine, of their own motion, issues of European Union law, notably in circumstances where this would have interfered with the principle of those courts being bound by the parties ’ claims brought before them. In the Government ’ s view, the courts could not be held liable for consequences resulting from the argumentation strategy of the plaintiff ’ s lawyer in any of the European legal systems. The Government contended that in the present case the applicant ’ s claim for damages had been ill-founded on that ground and therefore the Kúria had rightly come to the conclusion, and also provided due reasons in that respect, that reference for a preliminary ruling in connection with the questions proposed by the applicant had not been warranted.", "46. The Government further submitted that the Constitutional Court had had no competence to review the content of the reasons provided by the Kúria, its competence being limited to verification of whether reasons had been provided or not. In the complete absence of reasons behind the Kúria ’ s decision, the applicant would have been unable to complain about their content before the Constitutional Court; it had therefore been obvious to the Constitutional Court that the Kúria had complied with its obligation to provide reasons for its decision. In the light of the above, the Government argued that, given the limits of its competence, the Constitutional Court had not been required to examine the constitutional complaint under the European Union law provisions relied on by the applicant, or to provide reasons in that respect.", "47. Lastly, the Government contended that, under Article 6 of the Convention, the applicant had no right as such to have the case referred to the CJEU and that the obligation to provide reasons for refusing to refer a case fell upon the Kúria, which had complied with it. In such circumstances, the fairness of the proceedings, as a whole, had not been prejudiced.", "2. The Court ’ s assessment", "(a) General principles", "48. The Court recalls that it is for the national courts to interpret and apply domestic law, if applicable in conformity with European Union law, and to decide on whether it is necessary to seek a preliminary ruling from the CJEU to enable them to give judgment. It reiterates that the Convention does not guarantee, as such, the right to have a case referred by a domestic court to another national court or to the CJEU for a preliminary ruling. The Court has previously observed that this matter is, however, not unconnected to Article 6 § 1 of the Convention since a domestic court ’ s refusal to grant a referral may, in certain circumstances, infringe the fairness of proceedings where the refusal proves to have been arbitrary. Such a refusal may be deemed arbitrary in cases where the applicable rules allow no exception to the granting of a referral or where the refusal is based on reasons other than those provided for by the rules, or where the refusal was not duly reasoned. Indeed, the right to a reasoned decision serves the general rule enshrined in the Convention which protects the individual from arbitrariness by demonstrating to the parties that they have been heard and obliges the courts to base their decision on objective reasons (see Ullens de Schooten and Rezabek v. Belgium, cited above, §§ 54-59). As the Court has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the Convention. In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society (see Taxquet v. Belgium [GC], 16 November 2010, no. 926/05, § 90 and the cases cited therein).", "49. The obligation under Article 6 § 1 of the Convention for domestic courts to provide reasons for their judgments and decisions cannot, however, be understood to mean that a detailed answer to every argument is required. The extent to which the duty to provide reasons applies may vary according to the nature of the decision. It is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question of whether or not a court has failed to fulfil the obligation to provide reasons − deriving from Article 6 of the Convention − can only be determined in the light of the circumstances of the case (see, among many other authorities, Tibet Menteş and Others v. Turkey, nos. 57818/10 and 4 others, § 48, 24 October 2017 and the cases cited therein).", "50. These principles are amply reflected in the Court ’ s case-law. For example, in Dhahbi v. Italy (no. 17120/09, § 31, 8 April 2014) and Schipani and others v. Italy (no. 38369/09, § 42, 21 July 2015), where violations of Article 6 § 1 of the Convention were found for a total absence of providing reasons for a refusal to ask for a preliminary ruling, the Court formulated the following principles regarding the domestic courts ’ duty under that provision in situations where an explicit request was made for a referral to the CJEU for a preliminary ruling and where the request was accompanied by a due argumentation:", "“... Article 6 § 1 requires domestic courts to provide reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling;", "– when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal was duly accompanied by such reasoning;", "– whilst this verification has to be carried out in a thorough manner, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law; and", "– in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (current Article 267 of the TFEU), this means that national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of EU law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU. They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.”", "51. By contrast, the Court has held that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable under Article 6 of the Convention for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John v. Germany ( dec. ), no. 15073/03, 13 February 2007). The Court has come to the same conclusion in a case where the applicant had failed to explicitly ask for a preliminary ruling (see Greneche and Others v. France ( dec. ), no. 34538/08, 15 October 2013). It must however, also in this context, ascertain that decisions of national courts are not flawed by arbitrariness or otherwise manifestly unreasonable, this being the limit of the Court ’ s competence in assessing whether domestic law has been correctly interpreted and applied (see, mutatis mutandis, Talmane v. Latvia, no. 47938/07, § 29, 13 October 2016).", "(b) Application of these principles to the present case.", "52. As to the scope of the complaint, the Court notes that, on the one hand, the applicant company complained of a violation of its right of access to a court, whereas on the other, developing that complaint, it mainly addressed the lack of reasoning by the domestic courts for the refusal to make a preliminary reference to the CJEU. The Court, being the master of the characterisation to be given in law to the facts (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998-I), considers that the essence of the applicant ’ s grievances is a lack of proper reasoning and will examine the application under Article 6 § 1 in that sense.", "53. The Court observes that the Kúria found the first question proposed by the applicant irrelevant (notably in the absence of any disagreement between the parties), and that it did not find it necessary to refer the remaining questions to the CJEU either.", "( i ) As regards the Kúria ’ s decisions", "54. While in principle the Kúria agreed with the applicant that the claim for damages at issue was to be adjudicated in accordance with the CJEU ’ s Köbler case-law (see, in particular, paragraph 31 above), it stressed that the Supreme Court had been prevented, under the applicable procedural rules, from examining, in its 2009 judgment rendered in the first set of proceedings, the arguments that had been raised by the applicant in the second set of proceedings. On that basis, the Kúria came to the conclusion that the Supreme Court could not bear responsibility for the alleged infringement of European Union law.", "55. As regards the procedural rules in question, i.e. the ne ultra petita principle according to which the courts are bound by the limits of the claims brought before them, the Kúria was of the view that their consequence was that the applicant ’ s failure to rely on European Union law in the first set of proceedings fell to be assessed by the national courts exclusively. Thus, the Kúria considered this issue to belong exclusively to the realm of domestic law and not to raise any question of interpretation that would fall under the jurisdiction of the CJEU.", "56. The Court reiterates that it is not competent to assess the merits of the Kúria ’ s interpretative stance in the light of European Union law in the first set of proceedings, in particular whether or not it was in line with the CJEU ’ s case-law (see paragraph 32 above). At any rate, the applicant company ’ s complaint is not directed against the findings of the Kúria in this set of proceedings but against its refusal to request a preliminary ruling in the second set of proceedings, allegedly preventing the applicant from the right to access the CJEU.", "57. In the second set of proceedings which aimed at finding the State liable for having wrongly applied EU law and at the applicant company being awarded damages in this respect, the Court notes that the Kúria gave reasons for which it considered it unnecessary to seek a preliminary ruling as requested by the applicant company, thus applying one of the criteria set out in the Cilfit judgment of the CJEU (see paragraph 18 above). The Court ’ s competence is confined to assessing whether or not these reasons are arbitrary or manifestly unreasonable.", "58. In this connection, the Court notes that, for liability to be established under the “ Köbler ” criteria, it is not sufficient for a court to have infringed European Union law, such infringement moreover has to be manifest (see paragraph 31 above). In that sense, the second and fourth questions – which, in substance, concerned the adequate interpretation of the relevant European Union law provisions – were considered not relevant as, according to the Kúria, they fell outside the scope of the action in damages. As to the third question – which in substance was about whether the sole fact that a party to an action in tort against a State for infringement of European Union law by its courts does not explicitly allege such infringement in the judicial proceedings, upon which the subsequent action in liability is based, excludes the State ’ s liability – the Kúria implicitly provided a positive answer by concretely addressing the consequences of the applicant company ’ s failure to raise the question of the correct application of European Union law in the first set of proceedings. It held that, by failing to put forward its arguments concerning the adequate interpretation of European Union law, the applicant company had prevented the Supreme Court from taking into account its arguments. Thus the Kúria assessed the alleged wrongful behaviour of the domestic court in light of the applicant ’ s own behaviour. It found that, because of the applicant ’ s own omissions in the first set of proceedings, there was no liability resting upon the competent court for – allegedly – wrongly applying European Union law. The Kúria could have explained more explicitly why it refused to make a preliminary reference. However, an implicit reasoning can be considered sufficient (see Wind Telecommunicazioni S.P.A v. Italy ( dec. ), no. 5159/14, 8 September 2015).", "59. The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). It is therefore not called on to assess compliance with EU law of the Kúria ’ s approach, according to which there is no liability under EU law of a domestic court which allegedly misapplied EU law when, as in the present case, the applicant company claiming compensation under this head did not itself rely on EU law in the main proceedings and/or make a request for a reference for a preliminary ruling by the CJEU, thus preventing the domestic courts in the compensation proceedings from examining any claims based on an infringement of EU law. Nor can the Court assess whether or not under these circumstances it is open for the party concerned to ask, in the proceedings relating to the claim for compensation, for a reference for a preliminary ruling to be made to the CJEU. The Court notes that, according to the Kúria, what was lying at the heart of the case was, by and large, the applicant company ’ s attempt to make good, by its action in damages brought against the Supreme Court, its omission in the first set of proceedings, that is to say, explicitly to refer to the applicable European Union law and to request a preliminary ruling on the EU law provision at stake.", "60. The Court therefore does not consider arbitrary or manifestly unreasonable the reasons given by the Kúria for not making a reference to the CJEU.", "( ii ) As regards the Constitutional Court ’ s decision", "61. In so far as the Constitutional Court ’ s reasoning is concerned, this court provided reasoning in reply to the request of the applicant company which complained of the Kúria ’ s refusal to approach the CJEU, consisting in holding that it lacked jurisdiction in this respect. Such position cannot be considered arbitrary or manifestly unreasonable either. It is not for the Court to challenge the Constitutional Court ’ s finding that requests for a preliminary reference to the CJEU should be made before the ordinary courts and that it lacked jurisdiction to review such decisions. The Court would stress in this context that Article 6 § 1 does not require a supreme court to give more detailed reasoning when it simply applies a specific legal provision to dismiss an appeal on points of law as having no prospects of success, without further explanation (see Burg and Others v. France ( dec. ), no. 34763/02, 28 January 2003, and Gorou v. Greece (no. 2) [GC], no. 12686/03, § 41, 20 March 2009).", "(c) Conclusion", "62. In these circumstances, the refusal by the domestic courts to make a reference for a preliminary ruling by the CJEU cannot be considered arbitrary or manifestly unreasonable. Accordingly, there has been no violation of Article 6 § 1 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1947 and lives in Paris. He is a member of the Paris Bar and the Bar Council.", "9. He submitted that the European Union had adopted three Directives in succession aimed at preventing the use of the financial system for money-laundering. The first (91/308/EEC of 10 June 1991) targets credit and financial institutions. It was amended by a Directive of 4 December 2001 (2001/97/EC) which, among other things, widened its scope to include professions outside the financial sector, including members of the independent legal professions. The third Directive (2005/60/EC of 26 October 2005) repealed the Directive of 10 June 1991, as amended, and reproduced and added to its content. The laws transposing these Directives – Law no. 2004-130 of 11 February 2004 in the case of the Directive of 10 June 1991, as amended – and the regulations implementing that law – Decree no. 2006-736 of 26 June 2006 – have been incorporated into the Monetary and Financial Code (for more details see sections III and IV below on relevant European Union and domestic law).", "10. These texts place lawyers under an “obligation to report suspicions” which the legal profession – who see it as a threat to professional privilege and the confidentiality of exchanges between lawyers and their clients – have constantly criticised, in particular through the National Bar Council.", "11. However, on 12 July 2007 the National Bar Council took a “decision adopting regulations on internal procedures for implementing the obligation to combat money-laundering and terrorist financing, and an internal supervisory mechanism to guarantee compliance with those procedures” (published in the Official Gazette on 9 August 2007). In so doing it was effectively applying section 21-1 of the Law of 31 December 1971 reforming certain legal and judicial professions, which empowered it, with due respect for the laws and regulations in force, to take general measures to unify the rules and practices of the legal profession.", "12. Article 1 of the above-mentioned decision states that “all lawyers who are members of a French Bar” are bound by these rules of their profession when, in the course of their business activity, they participate for and on behalf of their client in any financial or real-estate transaction or assist their client in the preparation or execution of transactions relating to: (1) the buying and selling of real estate or businesses; (2) the management of funds, securities or other assets belonging to the client; (3) the opening of current accounts, savings accounts or securities accounts; (4) the organisation of the contributions required to create companies; (5) the formation, administration or management of companies; and (6) the formation, administration or management of trusts governed by a foreign legal system, or of any other similar structure. They are not bound by these rules “when acting as legal counsel or in the context of judicial proceedings” in connection with one or other of the above activities (Article 2).", "13. The regulations establish in particular that lawyers must always “show due diligence” in this context and “develop internal procedures” to ensure compliance with, inter alia, the laws and regulations governing the reporting of suspicions (Article 3), indicating in particular the procedure to be followed when an operation appears to warrant such reporting (Article 7). More specifically, they must adopt written rules describing the steps to be taken (Article 5). They must also ensure that the regulations are properly applied in their structure, and that lawyers and staff receive the necessary information and training, tailored to their particular activities (Article 9), and set up an in-house monitoring system (Article 10). At the same time, the regulations also specify that “lawyers must, in all circumstances, ensure that professional confidentiality is respected” (Article 4).", "14. Failure to comply with these regulations can entail disciplinary sanctions and even being struck off (Articles 183 and 184 of Decree no. 91 ‑ 1197 of 27 November 1991 organising the legal profession).", "15. On 10 October 2007, considering that it undermined lawyers’ freedom to exercise their profession and the essential rules regulating that profession, the applicant appealed to the Conseil d’Etat to have the decision set aside. He submitted that there was no law or regulation giving the National Bar Council regulatory powers in such matters as money-laundering. Furthermore, pointing out that the decision concerned required lawyers to adopt in-house procedures to ensure compliance with the instructions on the reporting of suspicions, subject to disciplinary sanctions, and that the term “suspicions” was not defined, he complained that this was in breach of the requirement of legal certainty inherent in Article 7 of the Convention. In addition, referring to the André and Another v. France judgment (no. 18603/03, 24 July 2008), he contended that the regulations adopted by the National Bar Council were incompatible with Article 8 of the Convention, as the “obligation to report suspicions” jeopardised legal professional privilege and the confidentiality of exchanges between lawyer and client. Lastly, under Article 267 of the Treaty on European Union, he asked the Conseil d’Etat to refer the matter to the Court of Justice of the European Union for a preliminary ruling on the conformity of the “declaration of suspicion of criminal offence” with Article 6 of the Treaty on European Union and Article 8 of the Convention.", "16. By a judgment of 23 July 2010, the Conseil d’Etat rejected the bulk of the submissions in the application.", "17. Concerning the submission based on Article 7 of the Convention, the judgment found that the “reporting of suspicions” referred to in the disputed decision was not unclear in so far as it referred to the provisions of Article L. 562-2 of the Monetary and Financial Code (subsequently amended to become Article L. 561-15). As to the submission based on Article 8, the judgment rejected it on the following grounds:", "“... if, according to the applicant, the provisions of [Directive 91/308/EEC, as amended] are incompatible with those of Article 8 of the Convention ... which protect the fundamental right to professional confidentiality, among other things, that Article also permits interference by the authorities with that right when necessary in the interests of public safety, for the prevention of disorder or crime ...; ... regard being had on the one hand to the general interest served by combating money-laundering and, on the other, to the safeguard provided by the exclusion from its scope of information received or obtained by lawyers in the course of activities connected with judicial proceedings, or in their capacity as legal counsel, save, in this latter case, where the lawyer is taking part in money-laundering activities, or the legal advice is provided for money-laundering purposes, or the lawyer knows that the client is seeking legal advice for money-laundering purposes, the obligation under the Directive concerned for lawyers to report their suspicions does not amount to excessive interference with professional confidentiality; ... accordingly there is no need to refer the matter to the Court of Justice of the European Union for a preliminary ruling and the submission concerning the breach of the Convention provision concerned must be rejected.”", "II. THE RECOMMENDATIONS OF THE FINANCIAL ACTION TASK FORCE (FATF) ON MONEY LAUNDERING AND the COUNCIL of Europe Convention ON Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and ON THE financING of terrorism", "18. The recommendations adopted by the FATF provide, inter alia, for a duty of diligence on the part of financial institutions and require them to report suspicious transactions.", "Recommendation no. 12 proposed widening the scope of the professions concerned by the requirement of due diligence to include “lawyers, notaries, other independent legal professionals and accountants” when they prepare or carry out transactions for their clients concerning the following activities: buying and selling of real estate; managing of client money, securities or other assets; management of bank, savings or securities accounts; organisation of contributions for the creation, operation or management of companies; and creation, operation or management of legal persons or arrangements, and buying and selling of business entities. Recommendation no. 16 widened the scope of the obligation to report suspicious transactions to include the same professions when engaging in the above activities, but provided for an exception when the relevant information was obtained in circumstances where they were subject to professional secrecy or legal professional privilege.", "19. The Council of Europe Convention of 16 May 2005 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (which came into force on 1 May 2008 but has not been ratified by France) contains the following provisions concerning the prevention of money-laundering (Article 13 §§ 1 and 2).", "“1. Each Party shall adopt such legislative and other measures as may be necessary to institute a comprehensive domestic regulatory and supervisory or monitoring regime to prevent money-laundering and shall take due account of applicable international standards, including in particular the recommendations adopted by the Financial Action Task Force on Money Laundering (FATF).", "2. In that respect, each Party shall adopt, in particular, such legislative and other measures as may be necessary to:", "(a) require legal and natural persons which engage in activities which are particularly likely to be used for money-laundering purposes, and as far as these activities are concerned, to:", "(i) identify and verify the identity of their customers and, where applicable, their ultimate beneficial owners, and to conduct ongoing due diligence on the business relationship, while taking into account a risk-based approach;", "(ii) report suspicions on money-laundering subject to safeguards;", "(iii) take supporting measures, such as record-keeping on customer identification and transactions, training of personnel and the establishment of internal policies and procedures, and if appropriate, adapted to their size and nature of business;", "(b) prohibit, as appropriate, the persons referred to in sub-paragraph (a) from disclosing the fact that a suspicious transaction report or related information has been transmitted or that a money-laundering investigation is being or may be carried out;", "(c) ensure that the persons referred to in sub-paragraph a are subject to effective systems for monitoring, and where applicable supervision, with a view to [ensuring] their compliance with the requirements to combat money-laundering, where appropriate on a risk-sensitive basis.”", "According to the explanatory report, the intention of the drafters of this Convention was that it should also cover the “non-financial professions” referred to in FATF Recommendation no. 12. Moreover, the expression “subject to safeguards” in Article 13 § 2 (a) (ii) primarily means that it is in respect of the independent legal professions that the restriction “resulting from professional secrecy or legal professional privilege” contained in FATF Recommendation no. 16 (and its explanatory note) is relevant." ]

[ "III. RELEVANT EUROPEAN UNION LAW", "A. Directives 91/308/EEC, 2001/97/EC and 2005/60/EC", "1. Directives 91/308/EEC and 2001/97/EC", "20. On 10 June 1991 the Council of the European Communities adopted Directive 91/308/EEC on the prevention of the use of the financial system for the purpose of money-laundering. The aim was to oblige credit and financial institutions to identify their customers and all transactions in excess of 15,000 euros (EUR), to “examine with special attention” any suspicious transaction they considered likely to be related to money-laundering, and to report any sign of money-laundering to the relevant authorities. It was amended by Directive 2001/97/EC of 4 December 2001, which broadened the definition of laundering and extended the obligation to identify clients and report suspicious transactions to a series of professionals outside the financial sector, and in particular to “independent legal professionals”.", "2. Directive 2005/60/EC", "21. Directive 91/308/EEC, as amended, was repealed by Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money-laundering and terrorist financing, which reproduces and adds to the text of the earlier Directive. Recital 19 specifies that “independent legal professionals ... as defined by the member States ... are subject to the provisions of [the] Directive when participating in financial or corporate transactions, including providing tax advice, where there is the greatest risk of the services of those legal professionals being misused for the purpose of laundering the proceeds of criminal activity or for the purpose of terrorist financing”. Article 2 § 1 (3) (b) specifies that the Directive applies to them when, “acting in the exercise of their professional activities”, “they participate, whether by acting on behalf of and for their client in any financial or real-estate transaction, or by assisting in the planning or execution of transactions for their client concerning the: (i) buying and selling of real property or business entities; (ii) managing of client money, securities or other assets; (iii) opening or management of bank, savings or securities accounts; (iv) organisation of contributions necessary for the creation, operation or management of companies; (v) creation, operation or management of trusts, companies or similar structures”.", "22. The Directive calls in certain cases for customer due diligence measures, including identifying and verifying the identity of the customer and the beneficial owner and obtaining information on the purpose and intended nature of the business relationship (Article 8 § 1 (a), (b) and (c)). Member States are in principle obliged to require that, where the institution or person concerned is unable to comply with its obligations, they “may not carry out a transaction through a bank account, establish a business relationship or carry out the transaction, or shall terminate the business relationship, and shall consider making a report to the financial intelligence unit (FIU) in accordance with Article 22”. This obligation does not apply, however, “in situations when ... independent legal professionals ... are in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings” (Article 9 § 5).", "23. It also enshrines the obligation to report suspicions, specifying that “member States shall require the institutions and persons [concerned] ... to cooperate fully”, “by promptly informing the FIU, on their own initiative, where [they] know, suspect or have reasonable grounds to suspect that money-laundering or terrorist financing is being or has been committed or attempted” and “by promptly furnishing the FIU, at its request, with all necessary information, in accordance with the procedures established by the applicable legislation” (Article 22 § 1).", "24. However, where “independent legal professionals” are concerned, “member States may ... designate an appropriate self-regulatory body of the profession concerned as the authority to be informed in the first instance in place of the FIU”, in which case the designated self-regulatory body must “forward the information to the FIU promptly and unfiltered” (Article 23 § 1).", "25. And member States are not obliged to apply the obligations laid down in Article 22 to ( inter alia ) “independent legal professionals ... with regard to information they receive from or obtain on one of their clients, in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings, whether such information is received or obtained before, during or after such proceedings” (Article 23 § 2).", "26. Lastly, according to recital 48, “[n]othing in this Directive should be interpreted or implemented in a manner that is inconsistent with the European Convention on Human Rights”.", "B. Judgment of the Court of Justice of the European Communities (Grand Chamber) in the case of Ordre des barreaux francophones et germanophone and Others v. Conseil des ministres, 26 June 2007; C ‑ 305/05)", "27. In 2005, in connection with an application lodged by various Belgian Bar associations to have certain legal provisions transposing Directive 2001/97/EC annulled, the Belgian Constitutional Court referred the following question to the Court of Justice of the European Communities for a preliminary ruling:", "“Does Article 1, [§ 2], of Directive 2001/97 ... breach the right to a fair trial guaranteed by Article 6 of the [Convention] ... in so far as the new Article 2 bis, [§ 5] which it adds to Directive 91/308/EEC imposes the inclusion of independent legal professionals – no exception being made for lawyers – in the scope of the said Directive, which, in substance, requires certain people and institutions to inform the authorities responsible for combating money-laundering of any sign that may be an indication of money-laundering (Article 6 of Directive 91/308/EEC, replaced by Article 1, [§ 5], of Directive 2001/97/EC)?”", "The Bar associations submitted in particular that in extending to lawyers the obligation to inform the competent authorities of any transactions they knew or suspected were linked to money-laundering, the legislation concerned was in breach of the principles of professional confidentiality and the independence of the lawyer, which are essential aspects of the fundamental right to a fair trial and the rights of the defence.", "28. In its judgment of 26 June 2007, the Court of Justice disagreed.", "29. Firstly, it pointed out that fundamental rights formed an integral part of the general principles of law which it upheld, drawing on the constitutional traditions shared by the member States and the guidance given by the international human rights protection treaties to which the member States were party or with which they cooperated, among which the European Convention on Human Rights was “particularly significant”. It concluded that the right to a fair trial enshrined, inter alia, in Article 6 of the Convention was a fundamental right which the European Union respected as a general principle by virtue of Article 6 § 2 of the Treaty on European Union.", "Next, it noted that under the Directive in question the obligations to report and cooperate applied to lawyers only when they were helping their clients to prepare or carry out certain types of transaction, mainly financial or real-estate operations, or when they were acting in the name and on behalf of their clients in such financial transactions or real-estate operations. It pointed out that as a general rule these activities, by their very nature, took place in contexts that were not related to any judicial proceedings and therefore did not concern the right to a fair trial.", "The Court of Justice further noted that where a lawyer’s assistance with a transaction was requested in connection with the defence or representation of a client in judicial proceedings, or advice on instituting or avoiding proceedings, the Directive exempted the lawyer from these obligations. It considered that this exemption protected the client’s right to a fair trial. It also stated that the requirements relating to the right to a fair trial did not preclude the obligations of information and cooperation from being imposed on lawyers acting specifically in the situations listed in the preceding paragraph where those obligations were “justified by the need ... to combat money-laundering effectively, in view of its evident influence on the rise of organised crime, which itself [was] a particular threat to society in the member States”.", "IV. RELEVANT DOMESTIC LAW", "A. The Monetary and Financial Code", "30. The above-mentioned Directives have been transposed into French law and included (and amended several times) in the Monetary and Financial Code.", "31. The obligations of customer due diligence are codified in Articles L. 561-5 to L. 561-14-2, and those concerning reporting in Articles L. 561-15 to L. 561-22 (in the present version of the Code).", "32. These provisions apply to various organisations and professionals listed in Article L. 561-2 of the Code, including lawyers in the Conseil d’Etat and the Court of Cassation, and lawyers and avoués [1] in the courts of appeal when, “in the context of their business activity ... 1. They participate for and on behalf of their client in any financial or real-estate transaction or act as a trustee; 2. They assist their client in the preparation or execution of transactions relating to: (a) the buying and selling of real estate or businesses; (b) the management of funds, securities or other assets belonging to their client; (c) the opening of current accounts, savings accounts or securities accounts, or of insurance policies; (d) the organisation of the contributions required to create companies; (e) the formation, administration or management of companies; (f) the formation, administration or management of trusts governed by Articles 2011 to 2031 of the Civil Code or by a foreign legal system, or of any other similar structure; (g) the formation or administration of endowment funds (Article L. 561-3 I). They do not apply to them, however, when the activity relates to judicial proceedings, whether the information they have was received or obtained before, during or after said proceedings, including any advice given with regard to the manner of initiating or avoiding such proceedings, nor where they give legal advice, unless said information was provided for the purpose of money-laundering or terrorist financing or with the knowledge that the client requested it for the purpose of money-laundering or terrorist financing” (Article L. 561-3 II).", "33. Article R. 563-3 provided for internal procedures for implementing the legal obligations to be set in place, as appropriate, by ministerial decree or through professional regulations approved by the Minister.", "1. Due diligence", "34. The obligation of due diligence means that before entering into a business relationship with their client the person or entity concerned must identify the client and, where applicable, the effective beneficiary of the business relationship, and verify proof of identity (Article L. 561-5 I). As an exception, where the risk of money-laundering or of terrorist financing appears to be low, the identity of the client and, where applicable, that of the effective beneficiary, may be verified when the business relationship is in the process of being established (Article L. 561 ‑ 5 II). Information relating to the object and nature of the business relationship and any other piece of relevant information concerning the client must also be gathered before the business is transacted. Throughout its duration the persons or entities concerned are required to apply “constant due diligence” to the business relationship, within the limits of their rights and obligations, and carry out a “thorough examination of the transactions executed, taking care to ensure that they are consistent with the latest information they have concerning their client” (Article L. 561-6).", "35. Where a party is unable to identify its client or to obtain information on the object and nature of the business relationship, it must not execute any transaction, regardless of the particulars, or establish or pursue any business relationship. Where it has been unable to identify its client or to obtain information on the object and nature of the business relationship, and the relationship has nevertheless been established pursuant to Article L. 561 ‑ 5 II, it must terminate it (Article L. 561-8).", "2. The obligation to report", "36. The persons or entities concerned must declare to their country’s financial intelligence unit (“the FIU”) the sums entered in their books or the transactions relating to sums which they know, suspect or have good reasons for suspecting are the proceeds of an offence punishable by a custodial sentence of more than one year or are destined for terrorist financing (Article L. 561-15 I).", "They must also declare the sums or transactions which they know, suspect or have good reasons for suspecting are the proceeds of a tax fraud, where at least one of the following criteria defined by Article D. 561-32-1 II is present (Article L. 561-15 II):", "“1. The use of a front company, whose activity is inconsistent with its stated object or which has its registered office in a State or territory which has not signed a tax agreement with France giving it access to bank information, as identified from a list published by the tax authorities, or at the private address of one of the beneficiaries of the suspicious operation, or in premises occupied by several businesses within the meaning of Article L. 123-11 of the Commercial Code;", "2. Financial operations made by a company whose articles of association have undergone frequent changes not justified by the economic situation of the company concerned;", "3. Recourse to middlemen acting in appearance only for the companies or individuals involved in financial operations;", "4. Carrying out financial operations inconsistent with the usual activities of the company or suspicious operations in sectors sensitive to carousel-type VAT fraud, such as information technology, telephones, electronic goods, household appliances, hi-fi and video;", "5. The sudden, unexplained sharp increase over a short period in the amounts credited to newly opened or hitherto inactive accounts, possibly linked to a sharp increase in the number and volume of transactions or the use of previously dormant or inactive companies whose articles of association have recently undergone changes;", "6. The presence of anomalies in the invoices or order forms presented as justification for financial operations, such as a missing company registration or [French] SIREN or VAT number, invoice number, address or date;", "7. The unexplained use of payable-through accounts which register large numbers of debit and credit operations while the balance remains close to zero;", "8. The frequent withdrawal of cash from or deposit of cash in a business account which is not justified by the volume or nature of the economic activity;", "9. Difficulty in identifying the end beneficiaries and the links between the origin and destination of funds because of the use of intermediate accounts or non-financial business accounts such as payable-through accounts, or the use of complex legal and financial business structures which tend to obscure management and administrative machineries;", "10. International financial operations with no apparent legal or economic justification, often limited to the simple transit of funds from or to other countries, when the countries concerned are States or territories referred to in 1. above;", "11. Refusal or inability of the client to supply proof of the origin of funds received or justification of payments made;", "12. Transfer of funds to a foreign country, followed by repatriation thereof in the form of loans;", "13. Organisation of insolvency by the rapid sale of assets to persons or legal entities or on terms that reflect a clear and unjustified imbalance in the selling price;", "14. Regular use by individuals living and having an activity in France of accounts held by foreign companies;", "15. The deposit by a private individual of funds unrelated to his known activity or assets;", "16. The sale of real estate at a grossly undervalued price.”", "They are also required to declare to the FIU any transaction in respect of which the identity of the principal or of the effective beneficiary or of the grantor of a fiduciary fund or of any other management instrument of a special-purpose trust remains dubious despite the steps taken pursuant to Article L. 561 ‑ 5 (Article L. 561-15 IV).", "A decree of the Conseil d’Etat specifies the form this declaration must take.", "37. The persons and entities concerned must refrain from executing any transaction which they suspect may be linked to money-laundering or to terrorist financing until such time as they have made the report referred to above (Article L. 561-16). Where a transaction which should have been the subject of the report referred to in Article L. 561-15 has already been executed on account of it being impossible to defer its execution, or because its deferral could have obstructed investigations relating to a suspected money-laundering or terrorist financing transaction, or because it did not appear to be subject to said report until after its execution, the person or entity must inform the FIU thereof without delay.", "38. As an exception, advocates attached to the Conseil d’Etat and the Court of Cassation, and counsel before the court of appeal send their reports not to the FIU but, as applicable, to the President of the Bar Council of the Conseil d’Etat and of the Court of Cassation, to the Chairman of the Bar to which the advocate belongs or to the Chairman of the professional body of which the counsel is a member. As soon as the conditions set forth in Article L. 561-3 are met, the said authorities send the report to the FIU in conformity with the terms set forth in a decree of the Conseil d’Etat (Article L. 561-17).", "39. The report concerned is confidential. It is prohibited to divulge its existence and content and to disclose information regarding its outcome. Disregarding the prohibition on disclosure is punishable by a fine of EUR 22,500 (Article L. 574 ‑ 1; inserted in the Monetary and Financial Code by Order no. 2009-104 of 30 January 2009); the fact of the advocates concerned endeavouring to dissuade their client from taking part in an illegal activity does not constitute prohibited disclosure (Article L. 561-19).", "3. The national Financial Intelligence Unit (“the FIU”)", "40. The FIU (known as “Tracfin” in France) is an administrative investigation department of the Ministry of Finance, composed of specially selected officials. Its main purpose is to collect, analyse, develop and make use of any information likely to establish the origin or the destination of the sums or the nature of the transactions that have been the subject of a report. Where its investigations reveal acts likely to relate to the laundering of the proceeds of an offence punishable by a custodial sentence in excess of one year or to terrorist financing, it refers the matter to the public prosecutor via a memorandum (Article L. 561 ‑ 23).", "41. The FIU may directly ask the persons concerned to disclose documents kept in connection with the obligation of due diligence. As an exception to the above, requests for disclosure of documents made to advocates attached to the Conseil d’Etat and to the Court of Cassation and to advocates and counsel attached to the courts of appeal are submitted by the FIU, as applicable, to the President of the Bar Council of the Conseil d’Etat and of the Court of Cassation, or the Chairman of the Bar or the professional body to which the advocate or counsel belongs. Having ensured that the provisions of Article L. 561-3 have been complied with, these persons then forward the documents thus received to the FIU (Article L. 561-26).", "4. Internal procedures and auditing", "42. The persons and entities concerned are required to put systems in place to assess and manage the risks of money-laundering and of terrorist financing, and to provide their staff with regular training and information to ensure compliance with the obligations of due diligence and reporting (Articles L. 561-32 and L. 561-33).", "Article R. 563-3 (repealed by Decree no. 2009-1087 of 2 September 2009) provided for the internal procedures to be defined by order of the relevant ministry, by professional rules and regulations approved by the ministry concerned, or by the general regulations of the financial markets supervisory authorities.", "5. Disciplinary proceedings", "43. Where, as a result of either a serious lack of due diligence or a failure in the organisation of its internal auditing procedures, an advocate attached to the Conseil d’Etat or the Court of Cassation or an advocate or counsel attached to the courts of appeal has failed to comply with these obligations, the competent supervisory authority will institute disciplinary proceedings founded on the professional or administrative rules and shall notify the public prosecutor attached to the Court of Cassation or the court of appeal thereof (Article L. 561-36 III).", "B. The judgment of the Conseil d’Etat of 10 April 2008", "44. In a judgment of 10 April 2008 (no. 296845), the Conseil d’Etat found Directive 2001/97/EC of 4 December 2001 and the Law of 11 February 2004 transposing it compatible with Articles 6 and 8 of the Convention.", "45. Concerning the Directive, the Conseil d’Etat first pointed out that the judgment of the Court of Justice of the European Communities in the case of Ordre des barreaux francophones et germanophone and Others had found that it was not in breach of the requirements of the right to a fair trial guaranteed by Article 6 of the Convention in so far as the obligation to cooperate and report excluded information obtained by lawyers in the course of their activities linked to judicial proceedings. The same judgment showed that information obtained by a lawyer evaluating a client’s legal situation was also excluded from the scope of these obligations, the only exceptions being where the lawyer was taking part in money-laundering activities, or the legal advice was provided for money-laundering purposes, or the lawyer knew that the client was seeking legal advice for money- laundering purposes. That being so, and regard being had to the general interest served by combating money-laundering, the Directive “did not violate the fundamental right to professional confidentiality protected by Article 8 of the Convention ..., which permits interference by the authorities with the right to respect for private and family life when necessary in the interests of public safety, for the prevention of disorder or crime”.", "46. As to the legislation, the Conseil d’Etat found that it was an accurate transposition of the Directive and that, as such, it was not incompatible with the fundamental rights guaranteed by Articles 6 and 8 of the Convention.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "47. The applicant complained that because lawyers were under obligation to report suspicious operations, as a lawyer he was required, subject to disciplinary action, to report people who came to him for advice. He considered this to be incompatible with the principles of lawyer-client privilege and professional confidentiality. He relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "48. The Government disagreed.", "A. Admissibility", "1. The applicant’s victim status", "49. As their main submission, the Government maintained that the applicant could not claim to be a “victim” within the meaning of Article 34 of the Convention. They argued that his rights had not actually been affected in practice, highlighting that he did not claim that the legislation in question had been applied to his detriment, but simply that he had been obliged to organise his practice accordingly and introduce special internal procedures. The applicant was in fact asking the Court to examine in abstracto the conformity of a domestic law with the Convention. As to his status as a “potential victim” within the meaning of the Court’s case-law, the Government warned against the extensive application of this concept, which would open the door to actio popularis, would go against the intention of the authors of the Convention, would considerably increase the number of potential applicants and would be difficult to reconcile with the obligation to exhaust all domestic remedies. In their submission only very exceptional circumstances should, in particular cases, be taken into account by the Court to broaden the notion of victim status. There were no such circumstances in the present case.", "50. The applicant invited the Court to find that he could claim to be a victim of the violation of the Convention of which he complained. He pointed out that according to the Court’s case-law a person was entitled to claim that a law violated his rights in the absence of any individual measure of implementation if it required him to either modify his conduct or risk being prosecuted, or if he belonged to a class of people likely to be directly affected by it. As a lawyer he belonged to a class of people likely to be directly affected by the legislation: he was bound, subject to disciplinary action, by obligations of due diligence and report and obliged to modify his conduct and organise his practice by introducing special internal procedures. As a lawyer specialising in financial and tax law he was particularly affected by these obligations and threatened by the consequences of failure to comply.", "51. The Court points out that in order to be able to lodge an application in pursuance of Article 34 of the Convention a person must be able to claim to be a “victim” of a violation of the rights enshrined in the Convention: to claim to be a victim of a violation, a person must be directly affected by the impugned measure. The Convention does not envisage the bringing of an actio popularis for the interpretation of the rights set out therein, or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Norris v. Ireland, 26 October 1988, § 31, Series A no. 142, and among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008).", "It is, however, open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, and therefore to claim to be a “victim” within the meaning of Article 34 of the Convention, if he is required to either modify his conduct or risk being prosecuted, or if he is a member of a class of people who risk being directly affected by the legislation (see, among other authorities, Marckx v. Belgium, 13 June 1979, § 27, Series A no. 31; Johnston and Others v. Ireland, 18 December 1986, § 42, Series A no. 112; Norris, cited above, § 31; and Burden, cited above, § 34).", "52. In the instant case, the applicant has not been affected by any individual measure based on the National Bar Council’s decision of 12 July 2007 “adopting regulations on internal procedures for implementing the obligation to combat money-laundering and terrorist financing, and an internal supervisory mechanism to guarantee compliance with those procedures”.", "However, the Court notes that the decision concerned, which was adopted in application of section 21-1 of the Law of 31 December 1971, which empowers the National Bar Council to pass general measures to harmonise the rules and practices of the legal profession, has the force of law. It further notes that, like the obligation to show due diligence and report suspicions, it affects all French lawyers, so the applicant belongs to a class of people who risk being directly affected by it. In particular, for example, if he fails to report suspicious activities as required he will expose himself by virtue of this text to disciplinary sanctions up to and including being struck off. The Court also considers credible the applicant’s suggestion that, as a lawyer specialising in financial and tax law, he is even more concerned by these obligations than many of his colleagues and exposed to the consequences of failure to comply. In fact he is faced with a dilemma comparable, mutatis mutandis, to that which the Court identified in Dudgeon v. the United Kingdom (22 October 1981, § 41, Series A no. 45) and Norris (cited above, §§ 30-34): either he applies the rules and relinquishes his idea of the principle of lawyer-client privilege, or he decides not to apply them and exposes himself to disciplinary sanctions and even being struck off.", "53. In view of the above, the Court accepts that the applicant is directly affected by the impugned provisions and may therefore claim to be a “victim” of the alleged violation of Article 8.", "2. The six-month time-limit", "54. According to the Government, even assuming that the applicant could claim to be a “victim”, it should be noted that the application was lodged outside the six-month time-limit provided for in Article 35 § 1 of the Convention. In their submission the time-limit started to run on the date of the judgment of 10 April 2008 in which the Conseil d’Etat ruled on the conformity with Article 8 of the Convention of Directive 2001/97/EC of 4 December 2001 and the Law of 11 February 2004 transposing it.", "55. The applicant replied that he had respected the time-limit under Article 35 § 1 of the Convention because he had lodged his application with the Court in the six months following the judgment given by the Conseil d’Etat on 23 July 2010 in the action he had brought before that court to have the above-mentioned regulatory decision set aside.", "56. The Court recalls that what matters as far as Article 35 § 1 of the Convention is concerned is that the applicant has afforded the respondent State an opportunity to prevent or put right the alleged violation by exhausting the appropriate domestic remedies, and then lodged an application with the Court within a period of six months from the date on which the final decision was taken.", "57. The Court notes that the practical details of the obligation to report suspicions were set out in the National Bar Council’s decision of 12 July 2007, which decision provides the basis for the disciplinary measures to be taken against lawyers who fail to comply. In submitting his complaint under Article 8 to the Conseil d’Etat in an application to have the decision concerned set aside, the applicant gave that court an opportunity to rule on his complaint in the first instance, which indeed it did (see paragraphs 44-46 above). The applicant therefore used a domestic remedy which was appropriate in the circumstances of the case. The judgment pronounced by the Conseil d’Etat on 23 July 2010 at the end of those proceedings was therefore the final domestic decision for the purposes of the six-month time-limit. As the application was lodged on 19 January 2011, it was not lodged out of time.", "3. Conclusion", "58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It therefore declares it admissible.", "B. The merits", "1. The parties’ submissions", "(a) The applicant", "59. Noting that the Government did not dispute that Article 8 of the Convention protected legal professional privilege, the applicant maintained that the interference he complained of was not “in accordance with the law” within the meaning of that provision. He submitted that the regulations in question were unclear: they required lawyers to report “suspicions” without defining that term; the scope of the “activities” to which they applied was vague and it was difficult for a lawyer to segment or compartmentalise his activities into those which were concerned and those which were not. He added that the confidentiality of lawyer-client relations was indivisible: the law governing the legal professions specified that it applied both to defence and to advisory activities and concerned all the activities of lawyers and the files they dealt with.", "60. The applicant did not dispute that the interference in issue pursued one of the legitimate aims set out in the second paragraph of Article 8. He did consider, however, that it was not “necessary in a democratic society” in order to achieve that aim.", "61. The applicant considered that the presumption of equivalent protection established in the Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland judgment ([GC], no. 45036/98, ECHR 2005 ‑ VI – hereinafter “ Bosphorus ”) was not applicable.", "He considered that his case differed from Bosphorus and other cases where the Court had accepted that European Union membership afforded equivalent protection, in so far as those cases concerned the implementation of a regulation by a member State, not of a directive. With regulations, he argued, the member States had no margin of appreciation, whereas in implementing directives they did. He also emphasised that, unlike the Convention system of human rights protection, the positive law of the European Union made no provision for individuals to be able to apply directly to the Luxembourg Court.", "62. More specifically, the machinery of Community law had not permitted the specific examination of the complaint under Article 8 of the Convention which the applicant had lodged with the Court: this was firstly because the Conseil d’Etat had rejected his request to refer the matter to the Court of Justice of the European Union for a preliminary ruling; and, secondly, because in the above-cited Ordre des barreaux francophones et germanophone and Others case that court had examined the issue only from the point of view of the right to a fair trial. This, he argued, showed that the European Union system did not afford scrutiny and protection equivalent to that offered by the Convention.", "63. The applicant considered that when examining the question of “necessity” it was necessary to take into account the role played by lawyers – the specificity of which the Court had highlighted in the context of Article 10 of the Convention – as well as the importance of confidentiality in the practice of their profession, which was what protected the confidence that existed between them and their clients, as well as individual freedom and the smooth functioning of justice. In his opinion, requiring lawyers to report their suspicions was asking them to take action that was in contradiction with the social purpose of their profession and shed doubt on the traditional role they played.", "He further pointed out that while the Court had built its case-law protecting the professional confidentiality of lawyers on Article 8 of the Convention, it had also deemed it to be covered by Article 6 § 1. He laid particular emphasis on the link between confidentiality and the right of the accused persons they defend not to incriminate themselves, which the Court itself had highlighted in the André and Another v. France judgment (no. 18603/03, 24 July 2008). He added that to require lawyers to report their suspicions meant that they were expected to divulge personal information about their clients – which fell within the scope of Article 8 –, and that prohibiting them from informing the person they were reporting deprived that person not only of the right to receive information but also of the possibility of correcting it or having it deleted if the suspicion proved to be unfounded. The obligation would thus have repercussions on the fundamental rights of others.", "64. The applicant did not deny the need to combat money-laundering, but he did consider that it was disproportionate, in pursuit of that aim, to oblige lawyers, as a preventive measure, to report any suspicions regarding their clients’ activities to a financial intelligence unit (“the FIU” – known as “Tracfin” in France), thereby practising what one might call “self-incrimination by proxy” and breaching their duty of confidentiality.", "65. According to the applicant the obligation to report made lawyers contributors to a financial and fiscal data centralisation unit, which was a departure from the averred legitimate aim. He had reached that conclusion after observing that 98% of the nominal information lawyers were obliged to report was used for that purpose rather than to prevent crime. He referred in this connection to the statistics published by the FIU, which revealed, for example, that in 2010 it had received 20,252 reports, including 19,208 reports of suspicions submitted by the legal profession, that only 5,132 of these – that is, 25% – had been examined in detail and that in the end only 404 (no more than a quarter of which concerned suspicions of money-laundering) had been forwarded to the judicial system for follow-up; the others had been dealt with in the form of notes for the intelligence services, the tax authorities and the police. The information thus gathered was transmitted, recorded and held by an administrative department answering to the Ministry of Finance and it was not known what use was made of it. These figures also showed how inefficient the system was, as only 404 out of 19,208 reports had found their way into the justice system; lawyer-client privilege was thus being sacrificed to very little effect in terms of the prevention of money-laundering.", "66. According to the applicant, the interference was all the more disproportionate in that there were alternative ways of combating terrorism and money-laundering which were more effective and impinged less upon people’s fundamental rights. In asking the member States to “ensure” that money-laundering was prohibited, Article 2 of Directive 2001/97/EC allowed them to have recourse to a whole range of methods which were proportionate and tailored to the situation of each of the professions concerned. Obliging lawyers to report suspicions was clearly unnecessary when they were already subject to the criminal legislation prohibiting money-laundering, to strict legal obligations and to close financial scrutiny. French criminal law severely punished money-laundering and a lawyer could be charged with aiding and abetting if he neglected to dissuade a client from engaging in a dubious financial transaction, and cash transactions were prohibited in the profession.", "67. The applicant also considered the obligation to report suspicions incompatible with the lawyer’s duty of loyalty to his clients, enshrined in the Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from 27 August to 7 September 1990, and Recommendation No. R. (2000) 21 of the Committee of Ministers of the Council of Europe to member States on the freedom of exercise of the profession of lawyer, of 25 October 2000. It was alien to the very role and aim of the lawyer, and undermined the relationship of trust between lawyer and client.", "68. Lastly, the applicant pointed out that the positive law of certain European Union countries (Belgium, Estonia, Ireland, Italy and the Netherlands) and Switzerland protected professional confidentiality better than French law, and in Canada and the United States of America lawyers were bound by no such obligation to report suspicions.", "(b) The Government", "69. The Government accepted that Article 8 of the Convention protected legal professional privilege. They submitted, however, that there had been no “interference” by the authorities with the applicant’s right to respect for his private life, home or correspondence within the meaning of the second paragraph of that provision, as he did not complain of any concrete event that had affected him personally.", "70. Even assuming that there had been interference, the Government submitted that it was “in accordance with the law”, namely, the decision of the National Bar Council, adopted in application of the regulatory provisions of the Monetary and Financial Code contained in the Decree of 26 June 2006, which was itself issued in application of the Law of 11 February 2004 transposing Directive 2001/97/EC amending Directive 91/308/EEC on the prevention of the use of the financial system for the purpose of money-laundering.", "They further submitted that French law was sufficiently clear for there to have been no infringement of the principle of legal certainty. In particular, the notion of reporting “suspicions” was unambiguous: the suspicions could concern the identity of the client or the beneficiary of the operation, the origin of the funds, the unusual or complex nature of the transaction or its purpose; under Article L. 561-15 of the Monetary and Financial Code suspicions had to be reported when the professional knew, based on clear, objective information, that the funds were the proceeds of crime, or when the characteristics of the operation or the lack of details or missing information he was unable to obtain gave rise to suspicions of money-laundering and constituted reasonable grounds to doubt the legitimate origin of the funds. In addition, Article D. 561-32-1 of the Monetary and Financial Code laid down the reference criteria that should trigger reports of suspicions of tax fraud – the use of front companies, for example – because they were an indication of dubious practices. As to the notion of “legal advice”, the Government considered that no lawyer could seriously be unaware of its meaning, especially as it was clearly defined in both legal theory and case-law as well as by the General Assembly of the Bar Council (which, in a resolution adopted on 18 June 2011, defined it as “a personalised intellectual service consisting, on a given question, of offering an opinion or advice on the application of a rule of law with a view, for example, to the taking of a decision”). Referring, among other authorities, to the Cantoni v. France judgment (15 November 1996, Reports of Judgments and Decisions 1996 ‑ V), they also argued that in evaluating the foreseeability of the legal provisions in question, it should be borne in mind that the regulations concerned were aimed at the legal profession.", "71. The Government added that, intended as it was to combat money-laundering and related crime, the interference pursued one of the legitimate aims set out in the second paragraph of Article 8, namely the prevention of disorder and crime.", "72. They also considered that the presumption of equivalent protection did apply.", "73. This was so because first of all, by subjecting lawyers to the obligations of due diligence and the reporting of suspicions in the context of their activities covered by Directive 91/308/EEC of the Council and Directive 2001/97/EC of the European Parliament and of the Council, the French lawmakers had simply been complying with their obligations under the law of the European Union; their leeway in the matter was limited to certain practical arrangements, such as attributing a “filtering” role to the profession’s self-regulating bodies.", "Secondly, there was nothing to rebut that presumption in the present case. The Government pointed out that the explanations given in the Bosphorus judgment concerning the respecting of fundamental rights by Community law still applied, and Article 6 § 3 of the Treaty on European Union specifically made reference to the Convention in the legal system of the European Union. In that judgment, the Government submitted, the Court had, in abstracto, issued the Community human rights protection system with a “certificate of conventionality”, in terms of both its substantive and its procedural guarantees. They further submitted that professional confidentiality was given specific protection under European Union law, referring in that regard to the AM & S Europe Limited v. Commission of the European Communities judgment of 18 May 1982, in which the Court of Justice had noted that “there are to be found in the national laws of the member States common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purposes and in the interests of the client’s rights of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment”. The Government added that in his conclusions in the above-cited case of Ordre des barreaux francophones et germanophone and Others, the Advocate General, Miguel Poiares Maduro, had explained that, interpreted in the light of its recital 17, Directive 91/308/EEC as amended respected professional confidentiality for the purposes not only of Article 6 but also of Article 8 of the Convention.", "74. Even if the Court were nevertheless to decide that it was necessary to examine whether the interference was necessary, the Government pointed out that both the principle of subjecting lawyers to obligations in respect of the effort to prevent money-laundering and the list of activities covered and the exceptions thereto were the exact transposition of European Union law, which reflected the Financial Action Task Force (FATF) recommendations. They added, referring specifically to money-laundering, that the Court itself had found in the André and Another judgment, cited above, that the Convention did not rule out imposing certain obligations on lawyers in their relations with their clients, provided that such measures were subject to strict scrutiny.", "They also affirmed that the obligations of due diligence and cooperation concerned only those activities that were listed, which, as the Court of Justice had found in its judgment of 26 June 2007, were generally carried out, because of their very nature, in a context unrelated to any judicial proceedings. Lawyers were not affected in their activities linked to judicial proceedings or when consulted for “legal advice”. The only cases where this exception did not apply were where the legal counsellor himself was taking part in money-laundering activities, the legal advice was provided for money-laundering purposes, or the lawyer knew that the client was seeking legal advice for money-laundering purposes.", "The Government also highlighted the “maximum procedural guarantees” provided, emphasising that French law had made use of the possibility afforded by Article 6 § 3 of Directive 91/308/EEC, as amended, of making the self-regulatory bodies of the legal profession serve as a “filter” between the reporting lawyer and the authorities, entrusting that role to the Chairman of the Bar: if the Chairman considered that there was no suspicion of money-laundering, he would not pass on the information; the same applied if it appeared that the information reported had been received in the course of activities excluded from the scope of the obligations of due diligence and cooperation. Only a small number of other European Union member States had taken up that option (the Czech Republic, Denmark, Portugal and Spain), so French law was among the most protective of legal professional privilege in the European Union.", "In addition, data storage was limited in time (ten years at most when the information had not been transmitted to the judicial system), the information collected by the FIU was confidential, its disclosure was strictly controlled by the law and any failure to comply was punishable under Article 226-13 of the Criminal Code.", "Lastly, the Government pointed out that lawyers were in any event bound by a general duty of caution under Article 1.5 of the national rules and regulations governing the legal profession, which was inherent in the lawyer’s profession and pre-dated the anti-money-laundering regulations.", "2. Observations of the third-party interveners", "(a) The Council of Bars and Law Societies of Europe (CCBE)", "75. The CCBE considered that the essential values of the legal profession were seriously threatened by the anti-money-laundering Directives and the laws passed by the member States to transpose them, which, it deemed, undermined the independence of lawyers, professional secrecy and people’s right to respect for their private life.", "It submitted that lawyers’ activities were indivisible and that the distinction between those activities relating to expert advice – which were excluded from the obligation to report suspicions – and the others was a source of legal uncertainty, as people believing that lawyers were bound by a duty of confidentiality might inadvertently incriminate themselves. That uncertainty, combined with the fact that lawyers were required to report “suspicions” rather than actual offences, was incompatible with the confidentiality of exchanges between client and lawyer and the clients’ right to respect for their private life, as protected by Article 8 of the Convention. The lawyer became a de facto “agent of the State”, entering into a conflict of interest with his clients. Yet this approach was not essential to the anti-money-laundering effort, as demonstrated by the fact that in Canada and the United States of America lawyers were not obliged to report suspicious transactions.", "76. According to the CCBE, the regulations in question were incompatible with European privacy protection standards in that they restricted the principle of confidentiality with their “obscure and vague wording”, which failed to define the “legal advice” activities to which the obligation to report did not apply. In exposing lawyers to such uncertainties, subject to disciplinary sanctions and even being struck off, they also undermined the independence of the legal profession.", "77. The CCBE referred to the Code of Conduct for European Lawyers and the Charter of Core Principles of the European Legal Profession, drafted under its own aegis, and to the above-mentioned Basic Principles on the Role of Lawyers, which stressed the importance of preserving the independence of the legal profession and protecting legal professional secrecy and the confidentiality of exchanges between lawyers and their clients.", "It pointed out that the Court’s case-law acknowledged the fundamental nature of professional confidentiality for lawyers. Moreover, in the AM & S Europe Limited v. Commission of the European Communities judgment of 18 May 1982 (155/79), the Court of Justice of the European Communities had established the principle of the confidentiality of lawyer-client exchanges and, indirectly, the principle of legal professional privilege, and had gone on to specify in the Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission judgment of 14 September 2010 (C-550/07 P) that legal professional privilege was based on the principle that the lawyer was independent. According to the CCBE, the Luxembourg Court’s approach to the independence of the legal profession, which it justified largely by reference to the professional discipline inherent in the job, made it difficult to see the point of a law requiring lawyers to report suspicions.", "78. Lastly, the CCBE pointed out that the Bosphorus presumption could be rebutted where European Union law left the States a margin of appreciation with regard to its implementation, as illustrated by the M.S.S. v. Belgium and Greece judgment ([GC], no. 30696/09, ECHR 2011), and that was indeed the case in respect of the Directives in issue in the present case.", "(b) The French-speaking Bar Council of Brussels", "79. According to the French-speaking Bar Council of Brussels, the fact that legal professional privilege was guaranteed by Articles 6 and 8 of the Convention was undeniable.", "80. Article 8 protected the lawyer’s office, home, correspondence, computer equipment and telephone lines as well as the confidentiality of his relations with his clients and his professional privilege. It was part of the respect for private life to which the lawyer was entitled – which included his professional activities – and to which his clients were also entitled, and in addition, clients could rely on the confidentiality of their exchanges with their lawyer on the basis of their right to a fair trial. On this last point, highlighting the fundamental role played by lawyers in a democratic society governed by the rule of law, the Bar Council pointed out that the confidentiality of the lawyer’s work also had its basis in the need for the lawyer’s clients to be able to trust that any secrets they confided in their lawyer would not be disclosed to a third party.", "In M.S. v. Sweden (27 August 1997, Reports 1997 ‑ IV), a case concerning medical secrecy, the Court had found that respecting the confidentiality of health data was a vital principle in the legal systems of all the Contracting Parties to the Convention. It was crucial not only in order to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. The French-speaking Bar Council submitted that this approach also applied, mutatis mutandis, to exchanges between lawyers and their clients.", "81. It further submitted that legal professional privilege was also acknowledged by the positive law of the European Union; it referred in this connection to the AM & S Europe Limited judgment cited above and, in particular, to the conclusions of the Advocate General in the Ordre des barreaux francophones et germanophone and Others case, also cited above.", "82. Moreover, along similar lines to the judgments of the French Conseil d’Etat of 10 April 2008 and 23 July 2010 cited above, the Constitutional Court of Belgium held in a judgment of 23 January 2008 (no. 10/2008) that legal professional privilege was a general principle that contributed to respect for fundamental rights and was enshrined in Articles 10, 11 and 22 of the Belgian Constitution and Articles 6 and 8 of the Convention.", "83. Without taking any stance on the existence of an “interference” with Article 8 rights in the present case, or the applicant’s victim status, the Bar Council went on to point out that a person could claim that a law violated his rights in the absence of any individual measure of implementation if it required him to either modify his conduct or risk being prosecuted, or if he belonged to a class of people likely to be directly affected by it.", "84. As to the presumption of equivalent protection, it did not apply in this case, which concerned the transposition of a European Directive. This was confirmed by paragraph 157 of the Bosphorus judgment (cited above). The French-speaking Bar Council also referred to the Cantoni case, cited above, in which the Court had given the impugned measures its full scrutiny even though they simply transposed a Directive into French law, and to the M.S.S. v. Belgium and Greece judgment (cited above).", "85. Lastly, the Bar Council drew the Court’s attention to the judgment of 23 January 2008 mentioned above, in which the Constitutional Court of Belgium had held that while the fight against money-laundering and terrorist financing was a legitimate aim in the public interest, it could not justify the unconditional or unlimited lifting of legal professional privilege, as lawyers could not be confused with the authorities responsible for crime detection. It had accordingly found that information that came to the lawyer’s attention in the course of the essential activities of his profession, including those listed in Article 2 § 1 (3) (b) of Directive 2005/60/EC, namely, assisting and defending clients in matters of justice and providing legal advice, even outside the context of judicial proceedings, fell within the scope of legal professional privilege and could not be disclosed to the authorities.", "However, the Constitutional Court did not suggest that professional confidentiality was unlimited. Based on Article 20 of the Directive, it specified in its judgment that a lawyer who failed to dissuade a client from conducting or taking part in a money-laundering or terrorist financing operation he knew to be illegal was required, in circumstances where the obligation to report suspicions applied to him, to pass on the information in his possession to the Chairman of the Bar for communication to the authorities. In such an event, he should terminate the relationship between himself and the client concerned, so that the relationship of confidence between lawyer and client was no longer an issue.", "(c) The European Bar Human Rights Institute (“EBHRI”)", "86. EBHRI submitted that professional confidentiality was a legal obligation in France, prohibiting the disclosure of confidential information obtained by virtue of a person’s status or profession or as a result of a temporary mission or duty, the aim being to foster the trust necessary to the exercise of certain professions or functions.", "It was EBHRI’s conviction that professional confidentiality was an absolute duty of the lawyer in all his activities and in respect of all his files. In connection with the transposition of the Directives cited above, the National Bar Council had stated: “while the aim of combating crime and terrorism is legitimate, lawyers refuse to be informers or police the system and renege on the very essence of their oath and their essential values; the anti-money-laundering Directives and, as a result, our domestic law, threaten the fundamental rights of our citizens, the independence of our lawyers, the confidentiality of exchanges between lawyer and client, legal professional privilege and the presumption of innocence; they destroy the indispensable trust between the client and his lawyer; for fear of being reported, the client will feel obliged to withhold certain information; the lawyer will be ill-informed and unable to advise his client properly and defend his interests.”", "87. EBHRI went on to point out that, according to the Court’s case-law, Article 8 of the Convention protected the confidentiality of exchanges between lawyers and their clients and legal professional privilege, and that the case-law of the Court of Justice of the European Union took a similar stance.", "88. EBHRI emphasised that in order to assess the “need” for interference with the enjoyment of the rights guaranteed by Article 8, one had first to take into account “the extent of the interference and its effects”. In this connection it highlighted four points. Firstly, the client’s right to remain silent was also at stake. The obligation to report suspicions required lawyers to make their clients incriminate themselves. Secondly, as the legal provisions in issue were based on the notion of “suspicions”, but did not define that term, the “law” had neither the quality nor the foreseeability required. Thirdly, confidentiality was particularly important in the Court’s case-law – which protected the confidentiality of journalists’ sources and of medical data –, the protection of legal professional privilege in the face of this type of obligation had been affirmed in Canada and the United States of America, and the positive law of certain European Union member States (Belgium, Estonia, Ireland, Italy and the Netherlands), as well as Switzerland, was more protective. Fourthly, as the Court had pointed out in the Casado Coca v. Spain judgment (24 February 1994, Series A no. 285-A), the lawyer played a key role in preserving public confidence in the action of the courts; it was essential, therefore, that people should be able to trust in their lawyers, which meant preserving their independence from the authorities – which was undermined by the link with the FIU established by the legal provisions in issue – and the confidentiality of the information they handled.", "The interference also had to be proportionate to the aim pursued: the fight against money-laundering and terrorism. However, whereas the Court had found in the Xavier Da Silveira v. France case (no. 43757/05, 21 January 2010) that special procedural guarantees were needed in that particular case, which concerned searches or visits to a lawyer’s offices, the provisions in issue in the present case provided no such guarantees (the part played by the Chairman of the Bar was limited to an advisory role where he was certain that there was nothing suspicious to report). In addition, French lawyers were all subject to the criminal law on money-laundering, which was particularly strict, as well as to major ethical obligations, with sanctions for failure to comply, and to financial supervision. They were not allowed to handle cash transactions, except for very small sums, and bank transfers had to be made through a special payment fund for lawyers.", "89. Lastly, on the subject of the presumption of equivalent protection, EBHRI pointed out that the Bosphorus case concerned the obligation for the respondent State to apply a Community Regulation implementing the obligations arising from a binding resolution of the United Nations Security Council. Thus far the cases in which the Court had allowed equivalent protection in favour of the European Union had not concerned the implementation of Directives, which, unlike Regulations, left the States a margin of appreciation. Furthermore, while the fact that certain of the Directives relating to money-laundering referred to the Convention might lead to the acknowledgment of an equivalence of the rules and the substantive protection, there was clearly no equivalence of procedural protection in the absence of a right of individual petition in the European Union system. EBHRI also noted that the Court had acknowledged the equivalence of the protection afforded in the case of disputes involving international organisation staff members, precisely because they had a right of direct individual application to a judicial body affording all the requisite guarantees (it referred to Boivin v. 34 member States of the Council of Europe (dec.), no. 73250/01, ECHR 2008; Gasparini v. Italy and Belgium (dec.), no. 10750/03, 12 May 2009; and Beygo v. 46 member States of the Council of Europe, no. 36099/06, 16 June 2009).", "3. The Court’s assessment", "(a) Whether there was interference with the exercise of the right protected by Article 8 of the Convention", "90. In establishing the right of “everyone” to respect for his “correspondence”, Article 8 of the Convention protects the confidentiality of “private communications” (see Frérot v. France, no. 70204/01, § 53, 12 June 2007), whatever the content of the correspondence concerned (ibid., § 54) [the text of §§ 53 and 54 is available only in French in Hudoc], and whatever form it may take. This means that what Article 8 protects is the confidentiality of all the exchanges in which individuals may engage for the purposes of communication.", "91. So, in requiring lawyers to report to the administrative authorities information concerning another person which came into their possession through exchanges with that person, the obligation for them to report suspicions constitutes an interference with lawyers’ right to respect for their correspondence. It also constitutes an interference with their right to respect for their “private life”, a notion which includes activities of a professional or business nature (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B).", "92. In the present case it is true that the applicant does not claim to have found himself in a situation where he was actually obliged to declare such suspicions, or to have been disciplined under the regulations concerned for having failed to do so. However, as indicated previously, he is faced with the following dilemma: either he does as he is told and in so doing abandons his idea of the principle of the confidentiality of exchanges between lawyer and client and of legal professional privilege; or he refuses to comply and exposes himself to disciplinary sanctions and even being struck off. In the opinion of the Court, therefore, the obligation to report suspicions amounts to a “continuing interference” (see, mutatis mutandis, Dudgeon, § 41, and Norris, § 38, both cited above) with the applicant’s enjoyment, as a lawyer, of the rights guaranteed by Article 8, even if it is not the most intimate sphere of his private life that is affected but his right to respect for his professional exchanges with his clients.", "93. Such interference violates Article 8, unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” to achieve the aim or aims concerned.", "(b) Whether the interference was justified", "(i) Was the interference in accordance with the law?", "94. The Court reiterates that the expression “in accordance with the law” requires first and foremost that the interference has a basis in domestic law (see Silver and Others v. the United Kingdom, 25 March 1983, §§ 86-88, Series A no. 61). Such is undeniably the case here: the obligation for lawyers to report suspicions is provided for in European Directives which have been transposed into French law (in particular Law no. 2004-130 of 11 February 2004 in the case of the Directive of 10 June 1991, as amended) and codified in the Monetary and Financial Code; the practical formalities are set forth in implementing regulations (the provisions of which are also codified) and also in the decision of the National Bar Council of 12 July 2007 cited above.", "95. It is also necessary for the “law” to be sufficiently accessible – which the applicant does not dispute in the present case – and precise (ibid.). The applicant alleges that the “law” in question lacks clarity in so far as it requires lawyers to report “suspicions” without defining that term, and the field of activities it covers is vague.", "96. The Court is not convinced by this argument. It reiterates that a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (ibid.). However, the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity. Many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (ibid.).", "97. The Court considers that the notion of “suspicions” is a matter of common sense and that an informed group such as lawyers can scarcely claim that they do not understand it in that, as the Government have explained, the Monetary and Financial Code gives specific guidance. What is more, as the suspicions are to be reported to the Chairman of the Bar, or the President of the Bar Council of the Conseil d’Etat and the Court of Cassation, any lawyer who has doubts about the existence of “suspicions” in a given case can seek the advice of an informed and experienced colleague.", "As to the allegedly vague nature of the type of activity concerned by the obligation to report suspicions, the Court notes that the texts in issue (for example Article 1 of the National Bar Council’s decision of 12 July 2007, see paragraph 12 above) state that the obligation applies to lawyers when, in the course of their business activity, they participate for and on behalf of their client in any financial or real-estate transaction or assist their client in the preparation or execution of certain types of transaction (relating to the buying and selling of real estate or businesses, the management of funds, securities or other assets belonging to the client, the opening of current accounts, savings accounts or securities accounts, the organisation of the contributions required to create companies, the formation, administration or management of companies, or the formation, administration or management of trusts governed by a foreign legal system, or of any other similar structure). The texts specify that they are not bound by the same rules when acting as legal counsel or in the context of judicial proceedings in connection with one or other of the above activities. The Court deems that this guidance is sufficiently clear, especially considering that the texts concerned are aimed at lawyers and, as the Government have pointed out, the notion of “legal counsel” is defined by the Bar Council, inter alia.", "98. In conclusion, the interference was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.", "(ii) Did the interference have a legitimate aim?", "99. The Court has no doubt that, intended as it was to combat money-laundering and associated crimes, the interference pursued one of the legitimate aims set out in the second paragraph of Article 8, namely the prevention of disorder and crime. Neither party disputed that.", "100. Furthermore, the Court reiterates that compliance with European Union law by a Contracting Party constitutes a legitimate general-interest objective (see Bosphorus, cited above, §§ 150-51).", "(iii) Was the interference necessary?", "(α) Application of the presumption of equivalent protection", "101. The Government submitted that the obligation for lawyers to exercise due diligence and report suspicions was the result of the fact that France, as a member of the European Union, was required to transpose European directives into French law. Referring to the Bosphorus judgment, cited above, they contended that France must be presumed to have respected the requirements of the Convention as all it had done was comply with its obligations, and it was established that the European Union afforded protection of fundamental rights equivalent to that provided by the Convention.", "General principles", "102. The Court reiterates that absolving the Contracting States completely from their Convention responsibility where they were simply complying with their obligations as members of an international organisation to which they had transferred a part of their sovereignty would be incompatible with the purpose and object of the Convention: the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards. In other words, the States remain responsible under the Convention for the measures they take to comply with their international legal obligations, even when those obligations stem from their membership of an international organisation to which they have transferred part of their sovereignty (see Bosphorus, cited above, § 154).", "103. It is true, however, that the Court has also held that action taken in compliance with such obligations is justified where the relevant organisation protects fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent – that is to say not identical but “comparable” – to that for which the Convention provides (it being understood that any such finding of “equivalence” could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection). If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation.", "However, a State will be fully responsible under the Convention for all acts falling outside its strict international legal obligations, notably where it has exercised State discretion (see M.S.S. v. Belgium and Greece, cited above, § 338). In addition, any such presumption can be rebutted if, in the circumstances of a particular case, it is considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international cooperation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights (see Bosphorus, cited above, §§ 152-58, and also, among other authorities, M.S.S. v. Belgium and Greece, cited above, §§ 338-40).", "104. This presumption of equivalent protection is intended, in particular, to ensure that a State Party is not faced with a dilemma when it is obliged to rely on the legal obligations incumbent on it as a result of its membership of an international organisation which is not party to the Convention and to which it has transferred part of its sovereignty, in order to justify its actions or omissions arising from such membership vis-à-vis the Convention. It also serves to determine in which cases the Court may, in the interests of international cooperation, reduce the intensity of its supervisory role, as conferred on it by Article 19 of the Convention, with regard to observance by the States Parties of their engagements arising from the Convention. It follows from these aims that the Court will accept such an arrangement only where the rights and safeguards it protects are given protection comparable to that afforded by the Court itself. Failing that, the State would escape all international review of the compatibility of its actions with its Convention commitments.", "The protection of fundamental rights afforded by European Union law", "105. Concerning the protection of fundamental rights afforded by the European Union, the Court found in the Bosphorus judgment (cited above, §§ 160-65) that it was in principle equivalent to that of the Convention system.", "106. To reach that conclusion, it firstly noted that the European Union offered equivalent protection of the substantive guarantees, noting that at the relevant time respect for fundamental rights had become a condition of the legality of Community acts, and that in its deliberations the Court of Justice of the European Communities referred extensively to Convention provisions and to this Court’s jurisprudence (see Bosphorus, cited above, § 159). A fortiori since 1 December 2009, the date of entry into force of Article 6 (amended) of the Treaty on European Union, which gave the Charter of Fundamental Rights of the European Union the force of law and made fundamental rights, as guaranteed by the Convention and as they resulted from the constitutional traditions common to the member States, general principles of European Union law.", "107. The Court then considered whether the same could be said of the machinery for monitoring respect for fundamental rights.", "108. It noted that private individuals had only limited access to the Court of Justice: actions for failure to fulfil Treaty obligations (initially provided for in Articles 169 and 170 of the Treaty establishing the European Community) were not open to them, access to annulment actions and actions for failure to perform Treaty obligations (initially provided for in Articles 173 and 175 of the same Treaty) was limited, as were, in consequence, related pleas of illegality (initially provided for in Article 184 of the Treaty), and individuals had no right to bring an action against another individual (see Bosphorus, cited above, §§ 161-62).", "109. The Court nevertheless found that there was equivalent protection on this level too, noting that actions initiated before the Court of Justice by the European Union institutions or a member State constituted important control of compliance with European Union norms to the indirect benefit of individuals, and that individuals could also bring an action for damages before the Court of Justice in respect of the non-contractual liability of the institutions (initially provided for in Article 184 of the Treaty) (see Bosphorus, cited above, § 163).", "110. It further noted that it was essentially through the national courts that the Community system provided a remedy to individuals against a member State or another individual for a breach of European Union law.", "Certain provisions of the Treaty establishing the European Community had envisaged a complementary role for the national courts in the Community control mechanisms from the outset, notably (referring to the original numbering) Articles 189 (the notion of direct applicability) and 177 (the preliminary reference procedure), and the role of the domestic courts in the enforcement of Community law and its fundamental rights guarantees had been greatly enlarged by the development by the Court of Justice of important notions such as the supremacy of Community law, direct effect, indirect effect and State liability.", "The Court then observed that the Court of Justice maintained its control on the application by national courts of European Union law, including its fundamental rights guarantees, through the preliminary referral procedure originally provided for in Article 177 of the Treaty, during which the parties to the domestic proceedings had the right to put their case. It noted in this connection that while the Court of Justice’s role was limited to replying to the interpretative or validity question referred by the domestic court, the reply would often be determinative of the domestic proceedings (as, indeed, it had been in the Bosphorus case (cited above, § 164)).", "111. So, although individual access to the Court of Justice is far more limited than the access private individuals have to the Court under Article 34 of the Convention, the Court accepts that, all in all, the supervisory mechanism provided for in European Union law affords protection comparable to that provided by the Convention: firstly, because private individuals are protected under European Union law by the actions brought before the Court of Justice by the member States and the institutions of the European Union; and, secondly, because they have the possibility of applying to the domestic courts to determine whether a member State has breached Community law, in which case the control exercised by the Court of Justice takes the form of the preliminary referral procedure open to the domestic courts.", "The application in the present case of the presumption of equivalent protection", "112. The present case differs from that of Bosphorus for two main reasons.", "113. Firstly, as the latter case concerned a Regulation, which was directly and fully applicable in the member States, Ireland had no margin of manoeuvre at all in the execution of the obligations resulting from its membership of the European Union.", "In the present case France implemented Directives, which are binding on the member States as regards the result to be achieved but leave it to them to choose the means and manner of achieving it. That being so, the question whether France, in complying with its obligations resulting from its membership of the European Union, had a margin of manoeuvre capable of obstructing the application of the presumption of equivalent protection is not without relevance.", "114. Secondly, and above all, in the Bosphorus case the control mechanism provided for in European Union law was fully brought into play. The Irish Supreme Court applied to the Court of Justice for a preliminary ruling on the alleged violation of the right of property of which the applicant subsequently complained to the Court.", "Conversely, in the present case the Conseil d’Etat refused to submit the applicant’s request to the Court of Justice for a preliminary ruling on whether the obligation for lawyers to report suspicions was compatible with Article 8 of the Convention, even though the Court of Justice had not had an opportunity to examine the question, either in a preliminary ruling delivered in the context of another case, or on the occasion of one of the various actions mentioned above which were open to the European Union’s member States and institutions. The Court observes that in its judgment in the case of Ordre des barreaux francophones et germanophone and Others, cited above (see paragraphs 27 ‑ 29), the Court of Justice examined the compatibility of the obligation for lawyers to report suspicions only in respect of the requirements of the right to a fair trial within the meaning of Article 6 of the Convention. In so doing, it ruled solely on the rights of the lawyer’s client. The question is different, however, when approached from the angle of Article 8 of the Convention: here the issue is not just the rights of the lawyer’s client under this provision, but also the rights of the lawyer himself, as illustrated by the judgments in Kopp v. Switzerland (25 March 1998, Reports 1998 ‑ II), André and Another (cited above), and Wieser and Bicos Beteiligungen GmbH v. Austria (no. 74336/01, ECHR 2007-IV), which respectively concerned telephone tapping, the search of a lawyer’s offices in the context of proceedings against a client company and the seizure of computer data.", "115. The Court is therefore obliged to note that because of the decision of the Conseil d’Etat not to refer the question before it to the Court of Justice for a preliminary ruling, even though that court had never examined the Convention rights in issue, the Conseil d’Etat ruled without the full potential of the relevant international machinery for supervising fundamental rights – in principle equivalent to that of the Convention – having been deployed. In the light of that choice and the importance of what was at stake, the presumption of equivalent protection does not apply.", "116. The Court is therefore required to determine whether the interference was necessary for the purposes of Article 8 of the Convention.", "(β) The Court’s assessment", "117. The Court notes in this connection that it has on several occasions examined complaints under Article 8 of the Convention brought by lawyers in the exercise of their profession. For example, it has ruled on the compatibility with this Convention provision of searches and seizures carried out at a lawyer’s offices or home (see Niemietz, cited above; Roemen and Schmit v. Luxembourg, no. 51772/99, ECHR 2003 ‑ IV; Sallinen and Others v. Finland, no. 50882/99, 27 September 2005; André and Another, cited above; and Xavier Da Silveira, cited above), of the interception of correspondence between a lawyer and his client (see Schönenberger and Durmaz v. Switzerland, 20 June 1988, Series A no. 137), of the tapping of a lawyer’s telephone (see Kopp, cited above) and of the search and seizure of electronic data in a law firm (see Sallinen and Others, and Wieser and Bicos Beteiligungen GmbH, both cited above).", "It has pointed out in this connection that, by virtue of Article 8, correspondence between a lawyer and his client, whatever its purpose (strictly professional correspondence included: see Niemietz, cited above, § 32), enjoys privileged status where confidentiality is concerned (see Campbell v. the United Kingdom, 25 March 1992, §§ 46-48, Series A no. 233; and also, among other authorities, Ekinci and Akalın v. Turkey, no. 77097/01, § 47, 30 January 2007; this applies, as mentioned earlier, to all forms of exchanges between lawyers and their clients). It has also said that it “attaches particular weight” to the risk of impingement on the lawyer’s right to professional secrecy, “since it may have repercussions on the proper administration of justice” (see Wieser and Bicos Beteiligungen GmbH, cited above, §§ 65 and 66; see also Niemietz, § 37, and André and Another, § 41, both cited above) and professional secrecy is the basis of the relationship of confidence between lawyer and client (see André and Another, § 41, and Xavier Da Silveira, § 36, both cited above).", "118. The result is that while Article 8 protects the confidentiality of all “correspondence” between individuals, it affords strengthened protection to exchanges between lawyers and their clients. This is justified by the fact that lawyers are assigned a fundamental role in a democratic society, that of defending litigants. Yet lawyers cannot carry out this essential task if they are unable to guarantee to those they are defending that their exchanges will remain confidential. It is the relationship of trust between them, essential to the accomplishment of that mission, that is at stake. Indirectly but necessarily dependent thereupon is the right of everyone to a fair trial, including the right of accused persons not to incriminate themselves.", "119. This additional protection conferred by Article 8 on the confidentiality of lawyer-client relations, and the grounds on which it is based, lead the Court to find that, from this perspective, legal professional privilege, while primarily imposing certain obligations on lawyers, is specifically protected by that Article.", "120. The question facing the Court is therefore whether, as implemented in France and bearing in mind the legitimate aim pursued, the obligation for lawyers to report suspicions, seen in this light, amounts to disproportionate interference with legal professional privilege.", "The Court reiterates that for the purposes of Article 8 of the Convention the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, among other authorities, Campbell, cited above, § 44).", "121. The Court notes that in its judgment of 23 July 2010 (see paragraph 17 above), the Conseil d’Etat, after having agreed that Article 8 of the Convention protects “the fundamental right to professional confidentiality”, held that requiring lawyers to report suspicions did not amount to excessive interference with that right. It reached that conclusion regard being had to the general interest served by combating money-laundering and to the guarantee provided by the exclusion from the scope of the obligation of information received or obtained by lawyers in the course of activities connected with judicial proceedings, or in their capacity as legal counsel (save, in this latter case, where the lawyer is taking part in money-laundering activities, or the legal advice is provided for money-laundering purposes, or the lawyer knows that the client is seeking legal advice for money-laundering purposes).", "122. The Court finds no fault with that reasoning.", "123. It is true that, as previously indicated, legal professional privilege is of great importance for both the lawyer and his client and for the proper administration of justice. It is without a doubt one of the fundamental principles on which the administration of justice in a democratic society is based. It is not, however, inviolable, and the Court has already found that it may have to give way, for example, to the lawyer’s right to freedom of expression (see Mor v. France, no. 28198/09, 15 December 2011). Its importance should also be weighed against that attached by the member States to combating the laundering of the proceeds of crime, which are likely to be used to finance criminal activities linked to drug trafficking, for example, or international terrorism (see Grifhorst v. France, no. 28336/02, § 93, 26 February 2009). The Court observes in this connection that the European Directives at the origin of the obligation to report suspicions of which the applicant complained form part of a series of international instruments intended to prevent activities which constitute a serious threat to democracy (see, for example, the FATF recommendations and the Council of Europe’s Convention of 16 May 2005 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, cited in paragraphs 18 and 19 above).", "124. As to the applicant’s argument that the obligation to report is not necessary because any lawyer found to be involved in a money-laundering operation would in any event be liable to criminal proceedings, the Court is not indifferent to it. It considers, however, that that argument does not prevent a State or a group of States from combining the repressive provisions they have adopted with a specifically preventive mechanism.", "125. The Court also takes note of the statistics published by the FIU to which the applicant referred, in particular the fact that out of the 20,252 reports received by the FIU in 2010, including 19,208 reports of suspicions submitted by professionals, only 5,132 were examined in detail and only 404 were forwarded to the prosecuting authorities, and approximately only a hundred of those concerned money-laundering or terrorist financing. The applicant maintained that these figures showed that the system was ineffective and the interference therefore unnecessary. The Court is not convinced. It fails to see what lesson can be learnt from these figures in the present case when the FIU’s 2010 activity report reveals that none of the 19,208 reports of suspicions were submitted by a lawyer. It considers, on the contrary, that this report presents a positive picture of the results achieved; in fact FATF found that France’s methods of combating money-laundering and the financing of terrorism were among the most effective in the world. It further observes that the applicant’s argument ignores the deterrent effect of the system.", "126. Lastly, and above all, two factors are decisive in the eyes of the Court in assessing the proportionality of the interference.", "127. Firstly, as stated above and as the Conseil d’Etat noted, the fact that lawyers are subject to the obligation to report suspicions only in two cases: where, in the context of their business activity, they take part for and on behalf of their clients in financial or real-estate transactions or act as trustees; and where they assist their clients in preparing or carrying out transactions concerning certain defined operations (the buying and selling of real estate or businesses; the management of funds, securities or other assets belonging to the client; the opening of current accounts, savings accounts, securities accounts or insurance policies; the organisation of the contributions required to create companies; the formation, administration or management of companies; the formation, administration or management of trusts or any other similar structure; and the setting-up or management of endowment funds). The obligation to report suspicions therefore only concerns tasks performed by lawyers, which are similar to those performed by the other professions subjected to the same obligation, and not the role they play in defending their clients.", "Furthermore, the Monetary and Financial Code specifies that lawyers are not subjected to the obligation where the activity in question “relates to judicial proceedings, whether the information they have was received or obtained before, during or after said proceedings, including any advice given with regard to the manner of initiating or avoiding such proceedings, nor where they give legal advice, unless said information was provided for the purpose of money-laundering or terrorist financing or with the knowledge that the client requested it for the purpose of money-laundering or terrorist financing” (Article L. 561-3 II of the Monetary and Financial Code, see paragraph 32 above).", "128. The obligation to report suspicions does not therefore go to the very essence of the lawyer’s defence role which, as stated earlier, forms the very basis of legal professional privilege.", "129. The second factor is that the legislation has introduced a filter which protects professional privilege: lawyers do not transmit reports directly to the FIU but, as appropriate, to the President of the Bar Council of the Conseil d’Etat and the Court of Cassation or to the Chairman of the Bar of which the lawyer is a member. It can be considered that at this stage, when a lawyer shares information with a fellow professional who is not only subject to the same rules of conduct but also elected by his or her peers to uphold them, professional privilege has not been breached. The fellow professional concerned, who is better placed than anybody to determine which information is covered by lawyer-client privilege and which is not, transmits the report of suspicions to the FIU only after having ascertained that the conditions laid down by Article L. 561-3 of the Monetary and Financial Code have been met (Article L. 561-17 of the same Code, see paragraph 38 above). The Government pointed out in this regard that the information is not forwarded if the Chairman of the Bar considers that there is no suspicion of money-laundering or it appears that the information reported was received in the course of activities excluded from the scope of the obligation to report suspicions.", "130. The Court has already pointed out that the role played by the Chairman of the Bar constitutes a guarantee when it comes to protecting legal professional privilege. In the André and Another judgment, it specified that the Convention did not prevent domestic law from allowing for the possibility of searching a lawyer’s offices as long as proper safeguards were provided; more broadly, it emphasised that, subject to strict supervision, it was possible to impose certain obligations on lawyers concerning their relations with their clients, in the event, for example, that there was plausible evidence of the lawyer’s involvement in a crime and in the context of the fight against money-laundering. It then took into account the fact that the search had been carried out in the presence of the Chairman of the Bar, which it saw as a “special procedural guarantee” (§§ 42 and 43). Similarly, in the Roemen and Schmit judgment cited above (§ 69) it noted that the search of the lawyer’s premises had been accompanied by “special procedural safeguards”, including the presence of the President of the Bar Council. Lastly, in Xavier Da Silveira, cited above (see in particular §§ 37 and 43), it found a violation of Article 8, in part because there had been no such safeguard when a lawyer’s premises were searched.", "131. In the light of the above considerations, the Court considers that, regard being had to the legitimate aim pursued and the particular importance of that aim in a democratic society, the obligation for lawyers to report suspicions, as practised in France, does not constitute disproportionate interference with the professional privilege of lawyers.", "132. There has therefore been no violation of Article 8 of the Convention.", "II. THE OTHER ALLEGED VIOLATIONS", "133. The applicant complained that the professional regulations of 12 July 2007 did not define with sufficient clarity the obligations imposed on lawyers, subject to disciplinary action, in so far as they used such vague and general terms as “report suspicions” and “due diligence”. He alleged that this was in breach of the principle of legal certainty, in violation of Article 7 of the Convention.", "The Court reiterates that Article 7 prohibits the retrospective application of criminal law to the disadvantage of the accused and, more generally, embodies the principle that only the law can define a crime and prescribe a penalty and that criminal law must not be extensively construed to an accused’s detriment; it follows from this that “an offence must be clearly defined in law” (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260 ‑ A). It applies only in the context of “criminal” proceedings, within the meaning of the Convention, which led to a “conviction” or to the imposition of a “penalty”. Now, even assuming that the disciplinary action to which failure to comply with the professional regulations of 12 July 2007 could lead might be classified as “criminal” proceedings within the meaning of the Convention, the Court notes that no such proceedings were brought against the applicant. This means that he cannot claim to be a victim of the alleged violation of Article 7. This part of the application is therefore incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4.", "134. Relying on Article 6 of the Convention, the applicant complained that the obligation for lawyers to report their “suspicions” concerning the possible unlawful activities of their clients was incompatible with the right of those clients not to incriminate themselves, and with their right to be presumed innocent.", "The Court notes that the applicant’s complaint concerns a violation of the rights of others. Therefore, he cannot claim to be a victim within the meaning of Article 34 of the Convention. This part of the application is accordingly incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant company is a public limited liability company ( aktsiaselts ), registered in Estonia.", "A. Background to the case", "11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia, and also operates in Latvia and Lithuania.", "12. At the material time, at the end of the body of the news articles there were the words “ add your comment ” and fields for comments, the commenter ’ s name and his or her e-mail address (optional). Below these fields there were buttons labelled “ publish the comment ” and “ read comments ”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “ read comments ” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers ’ comments daily, the majority posted under pseudonyms.", "13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (Estonian for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, comments that included certain stems of obscene words were automatically deleted. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately.", "14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi ’ s website there were Rules on posting comments which included the following.", "“ The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit the comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ...", "Delfi prohibits comments whose content does not comply with good practice.", "These are comments that", "– contain threats;", "– contain insults;", "– incite hostility and violence;", "– incite illegal activities ...", "– contain off-topic links, spam or advertisements;", "– are without substance and/or off topic;", "– contain obscene expressions and vulgarities ...", "Delfi reserves the right to remove such comments and restrict their authors ’ access to the writing of comments ... ”", "The functioning of the notice-and-take-down system was also explained in the Rules on posting comments.", "15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about the incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure freedom of expression as well as the protection of everyone ’ s honour and good name, including sections 1043 and 1046 of the Obligations Act ( Võlaõigusseadus ).", "B. Article and comments published on the Internet news portal", "16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “ SLK Destroyed Planned Ice Road ”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “ SLK ” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. At the material time, L. was a member of the supervisory board of SLK and the company ’ s sole or majority shareholder.", "17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed at L.", "18. On 9 March 2006 L. ’ s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments.", "“ 1. ( 1) there are currents in [V]äinameri", "(2) open water is closer to the places you referred to, and the ice is thinner.", "Proposal – let ’ s do the same as in 1905, let ’ s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag", "2. bloody shitheads...", "they ’re loaded anyway thanks to that monopoly and State subsidies and have now started to worry that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!", "3. good that [La. ’ s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!", "4. [ little L.] go and drown yourself", "5. aha ... [I] hardly believe that that happened by accident... assholes fck", "6. rascal !!! [ in Russian]", "7. What are you whining for, knock this bastard down once and for all[ .] In future the other ones ... will know what they risk, even they will only have one little life.", "8. ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn ’ t he.", "9. “ a good man lives a long time, a shitty man a day or two ”", "10. If there was an ice road, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it ’ s your fault", "11. and can ’ t anyone stand up to these shits?", "12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.", "13. wonder whether [L.] won ’ t be knocked down in Saaremaa? screwing one ’ s own folk like that.", "14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this.", "Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the State is powerless towards them – it is really them who govern the State), because they only live for today. Tomorrow, the flood.", "15. this [V.] will one day get hit with a cake by me.", "damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way", "16. bastards !!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!", "17. Estonian State, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram ’ s Michaelmas. [1] Actually feel sorry for [L.] – he’s a human, after all ... :D :D :D", "18. ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :)", "19. fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he ’ s acting like a pig from year to year", "20. you can ’ t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the State and [L.] do not care about the people ’ s opinion) ... just for fun, with no greed for money – I pee into [L. ’ s] ear and then I also shit onto his head. :) ”", "19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company.", "20. On 23 March 2006 the applicant company responded to the request from L. ’ s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages.", "C. Civil proceedings against the applicant company", "21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company.", "22. At the hearing of 28 May 2007, the representatives of the applicant company submitted, inter alia, that in cases like that concerning the “ Bronze Night ” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, on its own initiative.", "23. By a judgment of 25 June 2007, L. ’ s claim was dismissed. The County Court found that the applicant company ’ s liability was excluded under the Information Society Services Act ( Infoühiskonna teenuse seadus ), which was based on Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ( Directive on electronic commerce ). The court considered that the comments section on the applicant company ’ s news portal was to be distinguished from its journalistic section. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them.", "24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company ’ s liability was excluded under the Information Society Services Act. The County Court ’ s judgment was quashed and the case was referred back to the first-instance court for fresh consideration.", "25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company.", "26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal ’ s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had indicated on its website that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments.", "27. The County Court found that the news article itself published on the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory, and impaired L. ’ s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L. ’ s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage.", "28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court ’ s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims.", "29. The Court of Appeal rejected the applicant company ’ s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to post comments. Thus, the applicant company was a provider of content services rather than of technical services.", "30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal ’ s judgment in substance, but partly modified its reasoning.", "31. The Supreme Court held as follows.", "“ 10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal ’ s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure.", "11. The parties do not dispute the following circumstances:", "(a) on 24 January 2006 the defendant ’ s Internet portal ‘ Delfi ’ published an article entitled ‘ SLK Destroyed Planned Ice Road ’;", "(b) the defendant provided visitors to the Internet portal with the opportunity to comment on articles;", "(c) of the comments published [ avaldatud [2] ] on the aforementioned article, twenty contain content which is derogatory towards the plaintiff [L.];", "(d) the defendant removed the derogatory comments after the plaintiff ’ s letter of 9 March 2006.", "12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the content of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful content.", "13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act].", "According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to this provision, ‘ information society services ’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service.", "Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: ( a ) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; ( b ) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider ’ s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the content of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information.", "Since the Information Society Services Act is based on Directive 200 0 /31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by Recital 42 of the preamble to the Directive, according to which the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘ content services ’ who have control over the content of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive.", "The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments [ hinnangud ] and opinions (comments). In the comments section, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant ’ s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the author of the comments does not mean that the defendant has no control over the comments section. The defendant sets out the rules for the comments section and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant ’ s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not lead to the conclusion that the publishing of comments is not under the defendant ’ s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comments section, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case.", "14. It is not disputed that the defendant is the publisher of an article entitled ‘ SLK Destroyed Planned Ice Road ’, published on the Delfi Internet portal on 24 January 2006. The County Court also found that the defendant must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the authors of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the authors of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant [Delfi].", "The Chamber has explained the definitions of “ disclosure ” and “ discloser ” in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [ avaldamine ] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [ avaldamine ] of information in the media, the discloser/publisher [ avaldaja ] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ ajakirjanduslik tegevus ]. At the same time, because of the nature of Internet media [ internetiajakirjandus ], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [ trükiajakirjanduse väljaanne ]. While the publisher [ ( väljaandja ) of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [ väljaandja ] of printed media and an Internet portal operator are publishers/disclosers [ avaldajad ] as entrepreneurs.", "In cases concerning a value judgment [ väärtushinnang ] that prejudices and denigrates a person ’ s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of the Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [ hinnangud ] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public).", "15. In reply to the allegations in the defendant ’ s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following.", "The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone ’ s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person ’ s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person ’ s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person ’ s honour and good name.", "In the interests of the protection of a person ’ s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff ’ s honour was not justified and was therefore unlawful; as there was no discussion of the [news] topic in the comments, the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Obligations Act is interpreted in conformity with the Constitution, injuring a person ’ s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats.", "The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the authors of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1 )( 4) of the Obligations Act).", "16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant ’ s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless.", "On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful content. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person ’ s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant ’ s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [ süü ] (section 1050(1) of the Obligations Act). ”", "D. Subsequent developments", "32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the Rules on posting comments. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the Rules on posting comments was monitored as well. According to the information published, the number of comments posted by Delfi ’ s readers in August 2009 had been 190,000. Delfi ’ s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The percentage of defamatory comments had been less than 0.5% of the total number of comments." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "33. The Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides as follows.", "Article 17", "“ No one ’ s honour or good name shall be defamed. ”", "Article 19", "“ 1. Everyone has the right to free self-realisation.", "2. Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. ”", "Article 45", "“ 1. Everyone has the right freely to disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for State and local government public servants, to protect a State or business secret or information received in confidence which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice.", "2. There is to be no censorship. ”", "34. Section 138 of the Civil Code (General Principles) Act ( Tsiviilseadustiku üldosa seadus ) provides that rights are to be exercised and obligations performed in good faith. A right must not be exercised in an unlawful manner or with the aim of causing damage to another person.", "35. Subsection 2 of section 134 of the Obligations Act ( Võlaõigusseadus ) provides:", "“ In the case of an obligation to compensate for damage arising from ... a breach of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the breach, in particular by physical or emotional distress. ”", "36. Section 1043 of the Obligations Act provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) must compensate for the damage if the tortfeasor is culpable ( süüdi ) of causing the damage or is liable for causing the damage pursuant to the law.", "37. Section 1045 of the Obligations Act provides that the causing of damage is unlawful if, inter alia, it results from a breach of a personality right of the victim.", "38. The Obligations Act further provides.", "Section 1046 – Unlawfulness of damage to personality rights", "“ (1) Injuring a person ’ s honour, inter alia, by passing an undue value judgment, unjustified use of a person ’ s name or image, or breaching the inviolability of a person ’ s private life or another personality right, is unlawful unless otherwise provided by law. In establishing such unlawfulness, the type of the breach, the reason and motive for the breach and the gravity of the breach relative to the aim pursued thereby shall be taken into consideration.", "(2) The breach of a personality right is not unlawful if the breach is justified in view of other legal rights protected by law and the rights of third parties or public interests. In such cases, unlawfulness shall be established on the basis of a comparative assessment of the different legal rights and interests protected by law. ”", "Section 1047 – Unlawfulness of disclosure of incorrect information", "“ (1) A breach of personality rights or interference with the economic or professional activities of a person by way of disclosure [ avaldamine ] of incorrect information, or by way of incomplete or misleading disclosure of information concerning the person or the person ’ s activities, is unlawful unless the person who discloses such information proves that, at the time of such disclosure, he or she was not aware and was not required to be aware that such information was incorrect or incomplete.", "(2) Disclosure of defamatory matters concerning a person, or matters which may adversely affect a person ’ s economic situation, is deemed to be unlawful unless the person who discloses such matters proves that they are true.", "(3) Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential breach.", "(4) In the event of disclosure of incorrect information, the victim may demand that the person who has disclosed such information refute the information or publish a correction at his or her own expense, regardless of whether the disclosure of the information was unlawful or not. ”", "Section 1050 – Culpability [ süü ] as basis for liability", "“ (1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable [ süüdi ] of causing the damage.", "(2) The situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration in the assessment of the culpability [ süü ] of the person for the purposes of this Chapter.", "(3) If several persons are liable for compensation for damage and, pursuant to law, one or more of them are liable for compensation for unlawfully caused damage regardless of whether or not they are culpable, the wrongfulness of the behaviour and the form of the culpability of the persons liable for compensation for the damage shall be taken into consideration in apportioning among them the obligation to compensate for the damage. ”", "Section 1055 – Prohibition on damaging actions", "“ (1) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand the cessation of the behaviour causing the damage or of the threats of such behaviour. In the event of bodily injury, damage to health or a breach of the inviolability of personal life or of any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited from approaching others (restraining order), that the use of housing or communications be regulated, or that other similar measures be applied.", "(2) The right to demand the cessation of behaviour causing damage as specified in subsection (1) of this section shall not apply if it is reasonable to expect that such behaviour can be tolerated in conditions of human coexistence or in view of a significant public interest. In such cases, the victim shall have the right to make a claim for compensation for damage caused unlawfully.", "... ”", "39. The Information Society Services Act ( Infoühiskonna teenuse seadus ) provides as follows.", "Section 8 – Restricted liability in the case of mere transmission of information and provision of access to a public data communications network", "“ (1) Where a service is provided that consists of the mere transmission in a public data communication network of information provided by a recipient of the service, or the provision of access to a public data communication network, the service provider shall not be liable for the information transmitted, on condition that the provider:", "1. does not initiate the transmission;", "2. does not select the receiver of the transmission; and", "3. does not select or modify the information contained in the transmission.", "(2) The acts of transmission and of provision of access within the meaning of subsection 1 of this section include the automatic, intermediate and transient storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission in the public data communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. ”", "Section 9 – Restricted liability in the case of temporary storage of information in cache memory", "“ (1) Where a service is provided that consists of the transmission in a public data communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information if the method of transmission concerned requires caching for technical reasons and the caching is performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service at their request, on condition that:", "1. the provider does not modify the information;", "2. the provider complies with conditions on access to the information;", "3. the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used in the industry;", "4. the provider does not interfere with the lawful use of technology which is widely recognised and used by the industry to obtain data on the use of the information;", "5. the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court, the police or a State supervisory authority has ordered such removal. ”", "Section 10 – Restricted liability in the case of provision of an information storage service", "“ (1) Where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that:", "1. the provider does not have actual knowledge of the content of the information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent;", "2. the provider, upon obtaining knowledge or awareness of the facts specified in paragraph 1 of this subsection, acts expeditiously to remove or to disable access to the information.", "(2) Subsection 1 of this section shall not apply when the recipient of the service is acting under the authority or the control of the provider. ”", "Section 11 – No obligation to monitor", "“ (1) A service provider specified in sections 8 to 10 of this Act is not obliged to monitor information upon the mere transmission thereof or provision of access thereto, temporary storage thereof in cache memory or storage thereof at the request of the recipient of the service, nor is the service provider obliged actively to seek information or circumstances indicating illegal activity.", "(2) The provisions of subsection 1 of this section shall not restrict the right of an official exercising supervision to request the disclosure of such information by a service provider.", "(3) Service providers are required promptly to inform the competent supervisory authorities of alleged illegal activities undertaken or information provided by recipients of their services specified in sections 8 to 10 of this Act, and to communicate to the competent authorities information enabling the identification of recipients of their service with whom they have storage agreements.", "... ”", "40. Articles 244 et seq. of the Code of Civil Procedure ( Tsiviilkohtumenetluse seadustik ) provide for pre-trial taking of evidence ( eeltõendamismenetlus ) – a procedure in which evidence may be taken before the judicial proceedings have even been initiated if it can be presumed that evidence might be lost or that using the evidence afterwards might involve difficulties.", "41. In a judgment of 21 December 2005 (case no. 3-2-1-95-05), the Supreme Court found that, for the purposes of section 1047 of the Obligations Act, disclosure ( avaldamine ) meant disclosure of information to third parties. A person who transmitted information to a media publisher ( meediaväljaanne ) could be considered a discloser ( avaldaja ) even if he or she was not the publisher of the article ( ajaleheartikli avaldaja ) in question. The Supreme Court has reiterated the same position in its subsequent judgments, for example in a judgment of 21 December 2010 (case no. 3 ‑ 2 ‑ 1-67-10).", "42. In a number of domestic cases, actions for defamation have been brought against several defendants, including, for example, a publisher of a newspaper and the author of an article (Supreme Court judgment of 7 May 1998 in case no. 3-2-1-61-98), a publisher of a newspaper and an interviewee (Supreme Court judgment of 1 December 1997 in case no. 3 ‑ 2 ‑ 1-99-97), and solely against a publisher of a newspaper (Supreme Court judgments of 30 October 1997 in case no. 3-2-1-123-97, and 10 October 2007 in case no. 3-2-1-53-07).", "43. Following the Supreme Court ’ s judgment of 10 June 2009 in the case giving rise to the present case before the Court (case no. 3-2-1-43-09), several lower courts have resolved the issue of liability in respect of comments relating to online news articles in a similar manner. Thus, in a judgment of 21 February 2012, the Tallinn Court of Appeal (case no. 2 ‑ 08 ‑ 76058) upheld a lower court ’ s judgment concerning a defamed person ’ s claim against a publisher of a newspaper. The publisher was found liable for defamatory online comments posted by readers in the newspaper ’ s online comments section. The courts found that the publisher was a content service provider. They rejected the publisher ’ s request for a preliminary ruling from the Court of Justice of the European Union (CJEU), finding that it was evident that the defendant did not satisfy the criteria for a passive service provider as previously interpreted by the CJEU and the Supreme Court, and that the relevant rules were sufficiently clear. Therefore, no new directions from the CJEU were needed. The courts also noted that, pursuant to the judgment of 23 March 2010 of the CJEU (Joined Cases C ‑ 236/08 to C ‑ 238/08, Google France SARL and Google Inc. [2010] ECR I ‑ 2417), it was for the national courts to assess whether the role played by a service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. The courts considered that this was not the case in the matter before them. As the publisher had already deleted the defamatory comments by the time of the delivery of the judgment, no ruling was made on that issue; the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed. A similar judgment was handed down by the Tallinn Court of Appeal on 27 June 2013 (case no. 2-10-46710). In that case as well, an Internet news portal was held liable for defamatory comments posted by readers and the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed.", "III. RELEVANT INTERNATIONAL INSTRUMENTS", "A. Council of Europe documents", "44. On 28 May 2003, at the 840th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted a declaration on freedom of communication on the Internet. The relevant parts of the declaration read as follows.", "“ The member states of the Council of Europe,", "...", "Convinced also that it is necessary to limit the liability of service providers when they act as mere transmitters, or when they, in good faith, provide access to, or host, content from third parties;", "Recalling in this respect Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);", "Stressing that freedom of communication on the Internet should not prejudice the human dignity, human rights and fundamental freedoms of others, especially minors;", "Considering that a balance has to be found between respecting the will of users of the Internet not to disclose their identity and the need for law enforcement authorities to trace those responsible for criminal acts;", "...", "Declare that they seek to abide by the following principles in the field of communication on the Internet:", "Principle 1: Content rules for the Internet", "Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery.", "...", "Principle 3: Absence of prior state control", "Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries.", "Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality.", "...", "Principle 6: Limited liability of service providers for Internet content", "Member states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity.", "Member states should ensure that service providers are not held liable for content on the Internet when their function is limited, as defined by national law, to transmitting information or providing access to the Internet.", "In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information.", "When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information.", "In all cases, the above-mentioned limitations of liability should not affect the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of the law.", "Principle 7: Anonymity", "In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police. ”", "45. In its Recommendation CM/ Rec( 2007)16 to member States on measures to promote the public service value of the Internet (adopted on 7 November 2007), the Committee of Ministers noted that the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights. It recommended that the member States draw up a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies.", "46. Recommendation CM/ Rec( 2011)7 of the Committee of Ministers to member states on a new notion of media (adopted on 21 September 2011) reads as follows.", "“ ...", "The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states:", "– adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents;", "– review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people ’ s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship;", "– apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society;", "... ”", "The Appendix to the Recommendation states as follows, in so far as relevant.", "“ 7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe.", "...", "30. Editorial control can be evidenced by the actors ’ own policy decisions on the content to make available or to promote, and on the manner in which to present or arrange it. Legacy media sometimes publicise explicitly written editorial policies, but they can also be found in internal instructions or criteria for selecting or processing (for example verifying or validating) content. In the new communications environments, editorial policies can be embedded in mission statements or in terms and conditions of use (which may contain very detailed provisions on content), or may be expressed informally as a commitment to certain principles (for example netiquette, motto).", "...", "32. Editorial process can involve users (for example peer review and take down requests) with ultimate decisions taken according to an internally defined process and having regard to specified criteria (reactive moderation). New media often resort to ex post moderation (often referred to as post-moderation) in respect of user generated content, which may at first sight be imperceptible. Editorial processes may also be automated (for example in the case of algorithms ex ante selecting content or comparing content with copyrighted material).", "...", "35. Again, it should be noted that different levels of editorial control go along with different levels of editorial responsibility. Different levels of editorial control or editorial modalities (for example ex ante as compared with ex post moderation) call for differentiated responses and will almost certainly permit best to graduate the response.", "36. Consequently, a provider of an intermediary or auxiliary service which contributes to the functioning or accessing of a media but does not – or should not – itself exercise editorial control, and therefore has limited or no editorial responsibility, should not be considered to be media. However, their action may be relevant in a media context. Nonetheless, action taken by providers of intermediary or auxiliary services as a result of legal obligations (for example take down of content in response to a judicial order) should not be considered as editorial control in the sense of the above.", "...", "63. The importance of the role of intermediaries should be underlined. They offer alternative and complementary means or channels for the dissemination of media content, thus broadening outreach and enhancing effectiveness in media ’ s achievements of its purposes and objectives. In a competitive intermediaries and auxiliaries market, they may significantly reduce the risk of interference by authorities. However, given the degree to which media have to rely on them in the new ecosystem, there is also a risk of censorship operated through intermediaries and auxiliaries. Certain situations may also pose a risk of private censorship (by intermediaries and auxiliaries in respect of media to which they provide services or content they carry). ”", "47. On 16 April 2014 Recommendation CM/ Rec( 2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Guide reads as follows.", "Freedom of expression and information", "“ You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:", "1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy;", "2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight;", "...", "6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed. ”", "B. Other international documents", "48. In his report of 16 May 2011 (A/HRC/17/27) to the Human Rights Council, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following.", "“ 25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).", "...", "27. In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals ’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate. ...", "...", "43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf ...", "...", "74. Intermediaries play a fundamental role in enabling Internet users to enjoy their right to freedom of expression and access to information. Given their unprecedented influence over how and what is circulated on the Internet, States have increasingly sought to exert control over them and to hold them legally liable for failing to prevent access to content deemed to be illegal. ”", "49. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media and the OAS (Organization of American States) Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following:", "“ No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content. ”", "IV. RELEVANT EUROPEAN UNION AND COMPARATIVE LAW MATERIAL", "A. European Union instruments and case-law", "1. Directive 2000/31/EC", "50. The relevant parts of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provide as follows.", "“ (9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.", "...", "(42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.", "(43) A service provider can benefit from the exemptions for ‘ mere conduit ’ and for ‘ caching ’ when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission.", "(44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘ mere conduit ’ or ‘ caching ’ and as a result cannot benefit from the liability exemptions established for these activities.", "(45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.", "(46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States ’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information.", "(47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.", "(48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.", "...", "Article 1", "Objective and scope", "1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.", "...", "Article 2", "Definitions", "For the purpose of this Directive, the following terms shall bear the following meanings:", "(a) ‘ information society services ’ : services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC;", "(b) ‘ service provider ’ : any natural or legal person providing an information society service;", "(c) ‘ established service provider ’ : a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider;", "...", "Section 4: Liability of intermediary service providers", "Article 12", "‘ Mere conduit ’", "1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:", "(a) does not initiate the transmission;", "(b) does not select the receiver of the transmission; and", "(c) does not select or modify the information contained in the transmission.", "2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.", "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement.", "Article 13", "‘ Caching ’", "1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service upon their request, on condition that:", "(a) the provider does not modify the information;", "(b) the provider complies with conditions on access to the information;", "(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;", "(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and", "(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.", "2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement.", "Article 14", "Hosting", "1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:", "(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or", "(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.", "2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.", "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.", "Article 15", "No general obligation to monitor", "1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.", "2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements. ”", "2. Directive 98/34/EC as amended by Directive 98/48/EC", "51. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC, provides as follows:", "Article 1", "“ For the purposes of this Directive, the following meanings shall apply :", "...", "2. ‘ service ’, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.", "For the purposes of this definition:", "– ‘ at a distance ’ means that the service is provided without the parties being simultaneously present,", "– ‘ by electronic means ’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,", "– ‘ at the individual request of a recipient of services ’ means that the service is provided through the transmission of data on individual request.", "An indicative list of services not covered by this definition is set out in Annex V.", "This Directive shall not apply to:", "– radio broadcasting services,", "– television broadcasting services covered by point (a) of Article 1 of Directive 89/552/EEC. ”", "3. Case-law of the CJEU", "52. In a judgment of 23 March 2010 (Joined Cases C ‑ 236/08 to C ‑ 238/08 Google France SARL and Google Inc. ), the CJEU considered that, in order to establish whether the liability of a referencing service provider could be limited under Article 14 of the Directive on electronic commerce, it was necessary to examine whether the role played by that service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. Article 14 of the Directive on electronic commerce had to be interpreted as meaning that the rule laid down therein applied to an Internet referencing service provider in the event that that service provider had not played an active role of such a kind as to give it knowledge of or control over the data stored. If it had not played such a role, that service provider could not be held liable for the data which it had stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser ’ s activities, it had failed to act expeditiously to remove or to disable access to the data concerned.", "53. In a judgment of 12 July 2011 (Case C ‑ 324/09, L ’ Oréal SA and Others ), the CJEU ruled that Article 14 § 1 of the Directive on electronic commerce was to be interpreted as applying to the operator of an online marketplace where that operator had not played an active role allowing it to have knowledge of or control over the data stored. The operator played such a role when it provided assistance which entailed, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace had not played such an active role and the service provided fell, as a consequence, within the scope of Article 14 § 1 of the Directive on electronic commerce, the operator none the less could not, in a case which could result in an order to pay damages, rely on the exemption from liability provided for under that Article if it had been aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question had been unlawful and, in the event of it being so aware, had failed to act expeditiously in accordance with Article 14 § 1 (b) of the Directive on electronic commerce.", "54. In a judgment of 24 November 2011 (Case C-70/10, Scarlet Extended SA ), the CJEU ruled that an injunction could not be made against an Internet service provider requiring it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software, which applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying on that provider ’ s network the movement of electronic files containing a musical, cinematographic or audio - visual work in respect of which the applicant claimed to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which would infringe copyright.", "55. In a judgment of 16 February 2012 (Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA ( SABAM ) ) the CJEU held that the Directive on electronic commerce and Directives 2000/31/EC, 2001/29/EC and 2004/48/EC precluded a national court from issuing an injunction against a hosting service provider requiring it to install a system for filtering information stored on its servers by its service users, which applied indiscriminately to all those users, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying electronic files containing musical, cinematographic or audio - visual work in respect of which the applicant for the injunction claimed to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright.", "56. In a judgment of 13 May 2014 (Case C-131/12, Google Spain SL and Google Inc. ), the CJEU was called upon to interpret Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. It found that the activity of an Internet search engine was to be classified as “ processing of personal data ” within the meaning of Directive 95/46/EC and held that such processing of personal data, carried out by the operator of a search engine, was liable to affect significantly the fundamental rights to privacy and to the protection of personal data (guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union) when the search by means of that engine was carried out on the basis of an individual ’ s name, since that processing enabled any Internet user to obtain through the list of results a structured overview of the information relating to that individual that could be found on the Internet and thereby to establish a more or less detailed profile of him or her. Furthermore, the effect of the interference with the rights of the data subject was heightened on account of the important role played by the Internet and search engines in modern society, which rendered the information contained in such a list of results ubiquitous. In the light of the potential seriousness of that interference, it could not be justified merely by the economic interest of the operator. The CJEU considered that a fair balance should be sought between the legitimate interest of Internet users in having access to the information and the data subject ’ s fundamental rights. The data subject ’ s fundamental rights, as a general rule, overrode the interest of Internet users, but that balance might, however, depend on the nature of the information in question and its sensitivity for the data subject ’ s private life and on the interest of the public in having that information. The CJEU held that in certain cases the operator of a search engine was obliged to remove from the list of results displayed following a search made on the basis of a person ’ s name links to web pages, published by third parties and containing information relating to that person, even when its publication in itself on the web pages in question was lawful. That was so in particular where the data appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they had been processed and in the light of the time that had elapsed.", "57. In a judgment of 11 September 2014 (Case C-291/13, Sotiris Papasavvas ), the CJEU found that, since a newspaper publishing company which posted an online version of a newspaper on its website had, in principle, knowledge of the information which it posted and exercised control over that information, it could not be considered to be an “ intermediary service provider ” within the meaning of Articles 12 to 14 of Directive 2000/31 /EC, whether or not access to that website was free of charge. Thus, it held that the limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 /EC did not apply to the case of a newspaper publishing company which operated a website on which the online version of a newspaper was posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on the website, since it had knowledge of the information posted and exercised control over that information, whether or not access to the website was free of charge.", "B. Comparative law material", "58. From the information available to the Court, it would appear that in a number of the member States of the Council of Europe – which are also member States of the European Union – the Directive on electronic commerce, as transposed into national law, constitutes a primary source of law in the area in question. It would also appear that the greater the involvement of the operator in the third-party content before online publication – whether through prior censoring, editing, selection of recipients, requesting comments on a predefined subject or the adoption of content as the operator ’ s own – the greater the likelihood that the operator will be held liable for that content. Some countries have enacted certain further regulations specifically concerning the take-down procedures relating to allegedly unlawful content on the Internet, and provisions concerning distribution of liability in this context.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "59. The applicant company complained that holding it liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided for in Article 10 of the Convention, which reads as follows.", "“ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ”", "60. The Government contested that argument.", "A. The Chamber judgment", "61. In its judgment of 10 October 2013, the Chamber noted at the outset that the parties ’ views diverged as to the applicant company ’ s role in the present case. According to the Government, the applicant company was to be considered the discloser of the defamatory comments, whereas the applicant company was of the opinion that its freedom to impart information created and published by third parties was at stake, and that the applicant company itself was not a publisher of the third-party comments. The Chamber did not proceed to determine the exact role to be attributed to the applicant company ’ s activities and noted that it was not, in substance, in dispute between the parties that the domestic courts ’ decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention.", "62. As regards the lawfulness of the interference, the Chamber rejected the applicant company ’ s argument that the interference with its freedom of expression was not “ prescribed by law ”. The Chamber observed that the domestic courts had found that the applicant company ’ s activities did not fall within the scope of the Directive on electronic commerce and the Information Society Services Act. It considered that it was not its task to take the place of the domestic courts and that it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Chamber was furthermore satisfied that the relevant provisions of the civil law – although they were quite general and lacked detail in comparison with, for example, the Information Society Services Act – along with the relevant case-law, made it clear that a media publisher was liable for any defamatory statements made in its publication. The Chamber had regard to the fact that the applicant company was a professional publisher which operated one of the largest news portals in Estonia, and also that a degree of notoriety had been attributable to comments posted in its commenting area. Against that background, the Chamber considered that the applicant company had been in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail.", "63. The Chamber further found that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. In the Chamber ’ s view, the fact that the actual authors of the comments were also in principle liable did not remove the legitimate aim of holding the applicant company liable for any damage to the reputation and rights of others.", "64. As regards the proportionality of the interference, the Chamber noted that there was no dispute that the comments in question had been of a defamatory nature. In assessing the proportionality of the interference with the applicant company ’ s freedom of expression, the Chamber had regard to the following elements. It examined firstly the context of the comments, secondly, the measures applied by the applicant company in order to prevent or remove defamatory comments, thirdly, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and, fourthly, the consequences of the domestic proceedings for the applicant company.", "65. In particular, the Chamber considered that the news article published by the applicant company that had given rise to the defamatory comments had concerned a matter of public interest and the applicant company could have foreseen the negative reactions and exercised a degree of caution in order to avoid being held liable for damaging the reputation of others. However, the prior automatic filtering and notice-and-take-down system used by the applicant company had not ensured sufficient protection for the rights of third parties. Moreover, publishing news articles and making readers ’ comments on them public had been part of the applicant company ’ s professional activities and its advertising revenue depended on the number of readers and comments. The applicant company had been able to exercise a substantial degree of control over readers ’ comments and it had been in a position to predict the nature of the comments a particular article was liable to prompt and to take technical or manual measures to prevent defamatory statements from being made public. Furthermore, there had been no realistic opportunity of bringing a civil claim against the actual authors of the comments as their identity could not easily be established. In any event, the Chamber was not convinced that measures allowing an injured party to bring a claim only against the authors of defamatory comments would have guaranteed effective protection of the injured party ’ s right to respect for his or her private life. It had been the applicant company ’ s choice to allow comments by non-registered users, and by doing so it had to be considered to have assumed a certain responsibility for such comments. For all the above reasons, and considering the moderate amount of damages the applicant company had been ordered to pay, the restriction on its freedom of expression was considered to have been justified and proportionate. There had accordingly been no violation of Article 10 of the Convention.", "B. The parties ’ submissions to the Grand Chamber", "1. The applicant company", "(a) General remarks", "66. The applicant company argued that in today ’ s world, Internet media content was increasingly created by the users themselves. User-generated content was of high importance – comments on news stories and articles often raised serious debates in society and even informed journalists of issues that were not publicly known, thereby contributing to the initiation of journalistic investigations. The possibility for “ everyone ” to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship.", "67. As regards user-generated content, the applicant company was of the opinion that it was sufficient for a host to expeditiously remove third-party content as soon as it became aware of its illegal nature. If this was deemed insufficient by the Court, anonymous public speech would be prohibited or there would be arbitrary restrictions on commenters ’ freedom of communication by the intermediary, which would be impelled to err on the side of caution to avoid possible subsequent liability.", "(b) Delfi ’ s role", "68. The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments. It argued that intermediaries were not best suited to decide upon the legality of user-generated content. This was especially so in respect of defamatory content since the victim alone could assess what caused damage to his reputation.", "(c) Lawfulness", "69. The applicant company argued that the interference with its freedom of expression – including its right to store information and to enable users to impart their opinions – was not prescribed by law. It submitted that there was no legislation or case-law stating that an intermediary was to be considered a publisher of content which it was not aware of. On the contrary, the applicable law expressly prohibited the imposition of liability on service providers for third-party content. In this connection, the applicant company referred to the Directive on electronic commerce, the Estonian Information Society Services Act and the Council of Europe Declaration on freedom of communication on the Internet. The Directive provided for limited and notice-based liability with take-down procedures for illegal content. Service providers were exempted from liability where, upon obtaining actual knowledge of illegal activities, they acted expeditiously to remove or disable access to the information concerned. Such removal or disabling of access had to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level ( Recital 46 of the Preamble to the Directive). The applicant company argued that this law was indisputably formulated with sufficient precision to enable a citizen to regulate his conduct. According to the applicant company, its behaviour had been in full compliance with the applicable law as it had removed the defamatory comments the same day it had been notified by the original plaintiff.", "70. The applicant company further argued that even the existing tort law did not classify disseminators (postal workers, libraries, bookstores and others) as publishers. Thus, it remained entirely unclear how the existing tort law had been applied to a “ novel area related to new technologies ” as held in the Chamber judgment, that is, to an online news portal operator providing a service enabling users to interact with journalists and each other and to contribute valuable ideas to the discussion of matters of public interest. There was no law imposing an obligation on the applicant company to proactively monitor user comments.", "(d) Legitimate aim", "71. The applicant company did not dispute that the interference in question had a legitimate aim.", "(e) Necessary in a democratic society", "72. According to the applicant company, the interference was not necessary in a democratic society. It argued that as a result of the Chamber judgment it had two choices. Firstly, it could employ an army of highly trained moderators to patrol (in real time) each message board (for each news article) to screen any message that could be labelled defamatory (or that could infringe intellectual property rights, inter alia ); at the end of the day, these moderators would, just in case, remove any sensitive comments and all discussions would be moderated so that they were limited to the least controversial issues. Otherwise, it could simply avoid such a massive risk and shut down these fora altogether. Either way, the technological capability to provide ordinary readers with an opportunity to comment freely on daily news and assume responsibility independently for their own comments would be abandoned.", "73. The applicant company argued that the Supreme Court ’ s judgment had had a “ chilling effect ” on freedom of expression and that it had restricted the applicant company ’ s freedom to impart information. It amounted to the establishment of an obligation to censor private individuals.", "74. In support of its argument that the interference was not necessary in a democratic society, the applicant company relied on the following factors.", "75. Firstly, it argued that the comments were reactions from members of the public to an event caused by the Saaremaa Shipping Company and not to the article as such. Furthermore, the article was a balanced and neutral one. It addressed an issue of great importance to the residents of the biggest island of Estonia affecting their everyday lives. The readers ’ negative reactions had not been caused by the article but by the shipping company.", "76. Secondly, the applicant company had taken sufficient measures to prevent or remove defamatory comments; in the present case, the comments in question had been removed on the same day that the applicant company had been notified of them.", "77. Thirdly, the applicant company argued that the actual authors of the comments should bear responsibility for their contents. It disagreed with the Chamber ’ s finding that it was difficult to establish the identity of the authors of the comments and contended that the authors ’ identities could be established in the “ pre-trial taking of evidence ” procedure under Article 244 of the Code of Civil Procedure. Once the names and addresses of the authors were established, a claim against them could be brought without any difficulties.", "78. Fourthly, the applicant company insisted that there was no pressing social need for a strict liability standard for service providers. It argued that there was a European consensus that no service provider should be liable for content of which it was not the author. Accordingly, the margin of appreciation afforded to the Contracting States in this respect was necessarily a narrow one. Furthermore, it considered that the modest sum it had been ordered to pay in compensation for non-pecuniary damage did not justify the interference. It also emphasised that if the applicant company enjoyed limited liability the original plaintiff would not have been left without a remedy – he could have sued the actual authors of the comments. The applicant company objected to the establishment of private censorship and contended that it was sufficient to have a two-pronged system for the protection of the rights of third parties: a notice-and-take-down system and the possibility of bringing a claim against the authors of defamatory comments. There was no convincingly established “ pressing social need ” for the liability of Internet service providers.", "79. The applicant company also emphasised the importance of anonymity for free speech on the Internet; this encouraged the full involvement of all, including marginalised groups, political dissidents and whistle-blowers, and allowed individuals to be safe from reprisals.", "80. Lastly, the applicant company contended that the domestic courts had clearly misinterpreted European Union (EU) law. It submitted that the Chamber judgment had created a collision of obligations and legal uncertainty since adhering to EU law on the issue of liability for host service providers would render the State liable under the Convention, whereas adhering to the test set out in the judgment would not be in conformity with EU law.", "2. The Government", "(a) General remarks", "81. The Government made the following remarks in respect of the scope of the case. Firstly, according to the Court ’ s case-law it was for the domestic courts to decide on the domestically applicable law and interpret it. Furthermore, interpretation of EU law was the task of the CJEU. The domestic courts, in reasoned decisions, had found that the Obligations Act, rather than the Directive on electronic commerce or the Information Society Services Act, was applicable. The Grand Chamber should also proceed from this presumption and the applicant company ’ s allegations regarding the applicability of EU law were inadmissible. Secondly, the Government stressed that there existed a number of different types of Internet portals and the issue of their operators ’ liability could not be generalised. The present case was limited to the activities of the Delfi portal at the material time. In that connection the Government pointed out that Delfi had actively invited readers to comment on the articles it had chosen itself; it had published anonymous comments posted on those articles and in the same section; and the comments could be amended or deleted only by Delfi. The applicant company ’ s liability should be assessed in that specific context.", "82. The Government emphasised that there was no dispute that the comments in question had been defamatory.", "83. The Government noted that, despite the applicant company ’ s allegations to that effect, it had not been forced to disable anonymous comments or to change its business model. On the contrary, Delfi remained the largest Internet portal in Estonia; it was still possible to post anonymous comments on the portal and the number of comments had risen from 190,000 comments a month in 2009 to 300,000 in 2013. According to an article published on 26 September 2013, Delfi deleted 20,000 to 30,000 comments monthly (7 - 10% of all comments). Postimees, the second-largest portal, deleted up to 7% of a total of 120,000 comments. Both portals had five employees who dealt with taking down insulting comments. Since December 2013 Delfi had used a two-tier comments section where registered comments and anonymous comments were shown separately.", "(b) Lawfulness", "84. The Government insisted that the interference with the applicant company ’ s rights had been “ prescribed by law ”. They referred to the domestic legislation and case-law summarised in paragraphs 32 to 36, 38 and 39 of the Chamber judgment, as well as the Court ’ s relevant case-law as summarised in the Chamber judgment. The Government also pointed out that there was no Estonian case-law on the basis of which Delfi – which encouraged the posting of comments on the articles selected and published by it – could have presumed that the owner of an Internet portal as a new media publication was not liable for the damage caused by comments posted on its articles, which formed an integral part of the news and which only Delfi could administer. Further, by the time the domestic judgments had been handed down in Delfi, it was more than clear that Internet media had a wide influence over the public and that, in order to protect the private life of others, liability rules had to apply to new media as well.", "85. The Government reiterated that the applicant company ’ s references to EU law and the Information Society Services Act should be disregarded. The Grand Chamber could only assess whether the effects of the interpretation of the Obligations Act were compatible with Article 10 § 2 of the Convention and could not assess the legislation the domestic courts had found not to be applicable. They also pointed out that the domestic courts had paid sufficient attention to the question whether the applicant company might be regarded as a caching or hosting service provider. However, they had found this not to be the case. In particular, in the event of hosting, the service provider merely provided a data storage service, while the stored data and their insertion, amendment, removal and content remained under the control of the service users. In Delfi ’ s comments section, however, commenters lost control of their comments as soon as they had entered them, and they could not change or delete them. Having regard also to the other aspects of the case – Delfi chose the articles and their titles; Delfi invited readers to comment and set the Rules on posting comments (including that the comments had to be related to the article); the amount of advertising revenue Delfi received increased the more comments were posted; Delfi also selectively monitored the comments – the domestic courts had found that Delfi had not acted only as a technical intermediary service provider and could not be classified either as a cache or as a host. The Government also emphasised that the CJEU had never adjudicated on a case similar to the Delfi case. In any event, even if the CJEU ’ s case-law, such as L ’ Oréal SA and Others (cited above), was of relevance, it could be concluded that the role played by Delfi was an active one and it could not be granted the exemptions from liability provided in the Directive on electronic commerce.", "(c) Legitimate aim", "86. The Government submitted that the interference with the applicant company ’ s rights under Article 10 had the legitimate aim of protecting the honour of others.", "(d) Necessary in a democratic society", "87. As regards the question whether the interference was necessary in a democratic society, the Government emphasised at the outset the importance of the balance between Articles 10 and 8 of the Convention.", "88. The Government referred extensively to the relevant reasoning of the Chamber judgment. In addition, they emphasised the following.", "89. Firstly, as regards the context of the comments, the Government noted that the domestic courts had attached importance to the fact that the selection and publication of the news articles and the publication of readers ’ comments on these articles in the same section had been part of the applicant company ’ s professional activity as a discloser of information. Delfi invited readers to comment on its articles – often giving the articles provocative headlines and showing the number of comments on the main page immediately after the title of an article in bold red, so that commenting on an article would be more enticing – which in turn brought in advertising revenue.", "90. Secondly, in respect of the measures applied by the applicant company, the Government stressed the importance of ensuring the protection of third parties in relation to the Internet, which had become an extensive medium available to the majority of the population and used on a daily basis. The Government added that the applicant company ’ s responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal – only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person ’ s honour were no longer sufficient because the offensive comments had already reached the general public and done the damage. The Government further argued that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason.", "91. Thirdly, as regards the liability of the actual authors, the Government submitted that in civil proceedings – a remedy which was preferable to criminal remedies in defamation cases – investigative measures such as surveillance procedures were not accessible. In respect of the procedure for “ pre-trial taking of evidence ”, the Government argued that this was not a reasonable alternative in the case of anonymous comments for the following two reasons: (a) the relevant Internet Protocol ( IP) addresses could be not always established, for example if the user data or the comment had been deleted or an anonymous proxy had been used; and (b) even if the computers used for posting the comments could be identified, it could still prove impossible to identify the persons who had posted them, for example in cases where a public computer, a Wi-Fi hotspot, a dynamic IP address or a server in a foreign country had been used, or for other technical reasons.", "92. Fourthly, as regards the consequences of the domestic proceedings for the applicant company, the Government noted that Delfi had not needed to change its business model or disallow anonymous comments. In fact, the total number of comments – the majority of which were anonymous – had increased, while Delfi now employed five moderators. The Government also pointed out that the finding of liability was not aimed at obtaining huge or punitive awards of compensation. Indeed, in Delfi ’ s case the compensation it had been obliged to pay for non-pecuniary damage was negligible (EUR 320), and in the subsequent case-law (see paragraph 43 above) the courts had held that finding a violation or deleting a comment could be a sufficient remedy. The Government concluded that the applicant company ’ s civil liability had not had a “ chilling effect ” on the freedom of expression, but was justified and proportionate.", "93. Lastly, referring to the legislation and practice of several European countries, the Government contended that there was no European consensus on or trend towards excluding the liability of an Internet portal owner which acted as a content service provider and the discloser of anonymous comments on its own articles.", "C. The third-party interveners ’ submissions", "1. The Helsinki Foundation for Human Rights", "94. The Helsinki Foundation for Human Rights in Warsaw emphasised the differences between the Internet and traditional media. It noted that online services like Delfi acted simultaneously in two roles: as content providers with regard to their own news, and as host providers with regard to third-party comments. It submitted that moderation of user-generated content or the power to remove access to it should not be regarded as having effective editorial control. Intermediary service providers should not be treated as traditional media and should not be subject to the same liability regime.", "95. The Helsinki Foundation argued that authors should be accountable for their defamatory comments and the State should provide a regulatory framework making it possible to identify and prosecute online offenders. At the same time, it also contended that the possibility of publishing anonymously on the Internet should be regarded as a value.", "2. Article 19", "96. Article 19 argued that one of the most innovative features of the Internet was the ease with which it allowed any person to express his or her views to the entire world without seeking the prior approval of publishers. Comment platforms enabled and promoted public debate in its purest form and this had very little to do with the provision of news. As a matter of fact and form, comments sections on news websites were better understood as newspapers appropriating the private discussion model that was native to the Internet rather than the other way round. Article 19 argued that making websites responsible for comments made by users would impose an unacceptable burden on websites.", "97. Article 19 contended that the Directive on electronic commerce was meant to shield websites from liability for their users ’ comments, regardless of their own content. Article 19 insisted that, while the normal liability rules should continue to apply to online news sites for the articles they published, they should be regarded as hosts – rather than publishers – for the purposes of the comments section on their website. As hosts, online news sites should in principle be immune from liability for third-party content in circumstances where they had not been involved in directly modifying the content in issue. They should not be held liable when they took all reasonable steps to remove content upon being notified, and they should not automatically be held liable simply because they decided not to remove a comment reported to them.", "3. Access", "98. According to Access, anonymity and pseudonymity supported the fundamental rights of privacy and freedom of expression. A regulatory prohibition on anonymous use of the Internet would constitute an interference with the rights to privacy and freedom of expression protected under Articles 8 and 10 of the Convention, and blanket restrictions on anonymous and pseudonymous expression would impair the very essence of these rights. Access referred to the long-standing case-law of several countries protecting the right to anonymous communication, both on and offline.", "99. Furthermore, Access pointed out that services designed to provide enhanced confidentiality and anonymity while using the Internet had become more popular in the wake of revelations of mass surveillance online. It further argued that restricting Internet users to identified expression would harm the Internet economy, and referred to research which had concluded that the most important contributors online were those using pseudonyms.", "100. As regards real-name policy, evidence from China showed that such a measure had caused a dramatic drop in the number of comments posted. Experience in South Korea had demonstrated that real-name policy failed to improve meaningfully comments, whereas it was discriminatory against domestic Internet companies, as the users had sought alternative, international platforms that still allowed anonymous and pseudonymous comments.", "4. Media Legal Defence Initiative", "101. Media Legal Defence Initiative (MLDI) made its submissions on behalf of twenty-eight non-governmental and media organisations and companies. It noted that the vast majority of online media outlets allowed reader comments. Through the comments facility, readers could debate the news amongst themselves as well as with journalists. This transformed the media from a one-way flow of communication into a participatory form of speech which recognised the voice of the reader and allowed different points of view to be aired.", "102. MLDI noted that the boundaries between access and content were now increasingly blurred and “ intermediaries ” included enhanced search services, online marketplaces, web 2.0 applications and social networking sites. From the users ’ perspective, they all facilitated access to and use of content and were crucial to the realisation of the right to freedom of expression.", "103. MLDI contended that it was the States ’ task to ensure a regulatory framework that protected and promoted freedom of expression whilst also guarding other rights and interests. It provided a detailed overview of the regulatory framework for intermediary liability in the United States of America and in the European Union. It noted that approaches in these jurisdictions were distinct, but nevertheless similar in that it was acknowledged that some level of protection for intermediaries was vital and that there was no requirement that intermediaries should monitor user content. It also noted that in some member States notice-and-take-down procedures had resulted in excessive liability on intermediaries and the taking down of legitimate content.", "104. MLDI also elaborated on the emerging good practices in the regulation of user-generated content by online media. It pointed out that the majority of publications in North America and Europe did not screen or monitor comments before they were posted. They did, however, engage in some kind of post-publication moderation. Many online media outlets also ran filtering software and had mechanisms in place to block users who consistently broke the rules. The majority of online media, including leading European news outlets, required user registration but users were not required to disclose their real names.", "5. EDiMA, CCIA Europe and EuroISPA", "105. The European Digital Media Association (EDiMA), the Computer & Communications Industry Association (CCIA Europe) and EuroISPA, a pan-European association of European Internet Services Providers Associations, made joint submissions as third parties.", "106. The third-party interveners argued that there was an established balance struck to date in legislation, international agreements and recommendations according to which, firstly, host service providers were exempt from liability for content in the absence of “ actual knowledge ” and, secondly, States were prohibited from requiring host providers to carry out general monitoring of content.", "107. They noted that, while some information available online came from traditional publishing sources such as newspapers, and was rightly regulated by the law applicable to publishers, a large amount of online content came instead from individual speakers who could state their views unmediated by traditional editorial institutions. Comment facilities allowed for a right of reply and were thus fundamentally different from traditional publications, where no such right existed.", "108. The third-party interveners argued that the technology and operating processes for an online news discussion forum like Delfi were technologically indistinguishable from hosting services such as social media/networking platforms, blogs/microblogs and others. Content composed and uploaded by users was automatically made publicly visible without human intervention. For many hosts considerations of scale made proactive human review of all user content effectively impossible. For small websites and start-ups, content control was likely to be particularly challenging and could be so costly as to be prohibitive.", "109. The third-party interveners argued that established law in the European Union and other countries envisaged the notice-and-take-down system as a legal and practical framework for Internet content hosting. This balance of responsibilities between users and hosts allowed platforms to identify and remove defamatory or other unlawful speech, whilst at the same time enabling robust discussion on controversial topics of public debate; it made the operation of speech-hosting platforms practicable on a large scale.", "D. The Court ’ s assessment", "1. Preliminary remarks and the scope of the Court ’ s assessment", "110. The Court notes at the outset that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression. That is undisputed and has been recognised by the Court on previous occasions (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012, and Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, nos. 3002/03 and 23676/03, § 27, ECHR 2009 ). However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. Bearing in mind the need to protect the values underlying the Convention, and considering that the rights under Articles 10 and 8 of the Convention deserve equal respect, a balance must be struck that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that the possibility of imposing liability for defamatory or other types of unlawful speech must, in principle, be retained, constituting an effective remedy for violations of personality rights.", "111. On this basis, and in particular considering that this is the first case in which the Court has been called upon to examine a complaint of this type in an evolving field of technological innovation, the Court considers it necessary to delineate the scope of its inquiry in the light of the facts of the present case.", "112. Firstly, the Court observes that the Supreme Court recognised (see paragraph 14 of its judgment of 10 June 2009, set out in paragraph 31 above) that “ [p] ublishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs. ”", "113. The Court sees no reason to call into question the above distinction made by the Supreme Court. On the contrary, the starting-point of the Supreme Court ’ s reflections, that is, the recognition of differences between a portal operator and a traditional publisher, is in line with the international instruments in this field, which manifest a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audio - visual media, on the one hand and Internet-based media operations, on the other. In the recent Recommendation of the Committee of Ministers to the member States of the Council of Europe on a new notion of media, this is termed a “ differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe ” (see paragraph 7 of the Appendix to Recommendation CM/Rec(2011)7, quoted in paragraph 46 above). Therefore, the Court considers that because of the particular nature of the Internet, the “ duties and responsibilities ” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher as regards third-party content.", "114. Secondly, the Court observes that the Supreme Court of Estonia found that the “ legal assessment by the courts of the twenty comments of a derogatory nature [ was ] substantiated. The courts [had] correctly found that those comments [were] defamatory since they [were] of a vulgar nature, degrade[d] human dignity and contain[ ed ] threats ” (see paragraph 15 of the judgment, set out in paragraph 31 above). Further, in paragraph 16 of its judgment, the Supreme Court reiterated that the comments degraded “ human dignity ” and were “ clearly unlawful ”. The Court notes that this characterisation and analysis of the unlawful nature of the comments in question (see paragraph 18 above) is obviously based on the fact that the majority of the comments are, viewed on their face, tantamount to an incitement to hatred or to violence against L.", "115. Consequently, the Court considers that the case concerns the “ duties and responsibilities ” of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engage in clearly unlawful speech, which infringes the personality rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them.", "116. Accordingly, the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topic without the discussion being channelled by any input from the forum ’ s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or blog as a hobby.", "117. Furthermore, the Court notes that the applicant company ’ s news portal was one of the biggest Internet media publications in the country; it had a wide readership and there was a known public concern regarding the controversial nature of the comments it attracted (see paragraph 15 above). Moreover, as outlined above, the impugned comments in the present case, as assessed by the Supreme Court, mainly constituted hate speech and speech that directly advocated acts of violence. Thus, the establishment of their unlawful nature did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful. It is against this background that the Court will proceed to examine the applicant company ’ s complaint.", "2. Existence of an interference", "118. The Court notes that it was not in dispute between the parties that the applicant company ’ s freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts ’ decisions. The Court sees no reason to hold otherwise.", "119. Such an interference with the applicant company ’ s right to freedom of expression must be “ prescribed by law ”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “ necessary in a democratic society ”.", "3. Lawfulness", "120. The Court reiterates that the expression “ prescribed by law ” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001 ‑ VI; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A; and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II).", "121. One of the requirements flowing from the expression “ prescribed by law ” is foreseeability. Thus, a norm cannot be regarded as a “ law ” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ IV, and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 141 ).", "122. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed ( ibid., § 142). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, cited above, § 41, with further references to Cantoni v. France, 15 November 1996, § 35, Reports 1996 ‑ V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004 ‑ VI).", "123. In the present case the parties ’ opinions differed as to whether the interference with the applicant company ’ s freedom of expression was “ prescribed by law ”. The applicant company argued that there was no domestic law according to which an intermediary was to be taken as a professional publisher of comments posted on its website by third parties regardless of whether it was aware of their specific content. On the contrary, the applicant company relied on the domestic and European legislation on Internet service providers and argued that it expressly prohibited the imposition of liability on service providers for third-party content.", "124. The Government referred to the relevant provisions of the civil law and domestic case-law to the effect that media publishers were liable for their publications along with the authors. They added that there was no case-law on the basis of which the applicant company could have presumed that the owner of an Internet news portal as a new media publication was not liable for the comments posted on its articles. In their view the Court should proceed from the facts as established and the law as applied and interpreted by the domestic courts and not take account of the applicant company ’ s references to EU law. In any event, the EU law referred to by the applicant company actually supported the domestic courts ’ interpretations and conclusions.", "125. The Court observes that the difference in the parties ’ opinions as regards the law to be applied stems from their diverging views on the issue of how the applicant company is to be classified. According to the applicant company, it should be classified as an intermediary as regards the third-party comments, whereas the Government argued that the applicant company was to be seen as a media publisher, including with regard to such comments.", "126. The Court observes (see paragraphs 112 - 13 above) that the Supreme Court recognised the differences between the roles of a publisher of printed media, on the one hand, and an Internet portal operator engaged in media publications for an economic purpose, on the other. However, the Supreme Court found that because of their “ economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator [were] publishers/disclosers ” for the purposes of section 1047 of the Obligations Act (see paragraph 14 of the judgment, set out in paragraph 31 above).", "127. The Court considers that, in substance, the applicant company argues that the domestic courts erred in applying the general provisions of the Obligations Act to the facts of the case as they should have relied upon the domestic and European legislation on Internet service providers. Like the Chamber, the Grand Chamber reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Centro Europa 7 S.r.l. and Di Stefano, cited above, § 140, and Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999 ‑ III ). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I). Thus, the Court confines itself to examining whether the Supreme Court ’ s application of the general provisions of the Obligations Act to the applicant company ’ s situation was foreseeable for the purposes of Article 10 § 2 of the Convention.", "128. Pursuant to the relevant provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 33 ‑ 38 above), as interpreted and applied by the domestic courts, the applicant company was considered a publisher and deemed liable for the publication of the clearly unlawful comments. The domestic courts chose to apply these norms, having found that the special regulation contained in the Information Society Services Act transposing the Directive on electronic commerce into Estonian law did not apply to the present case since the latter related to activities of a merely technical, automatic and passive nature, unlike the applicant company ’ s activities, and that the objective pursued by the applicant company was not merely the provision of an intermediary service (see paragraph 13 of the Supreme Court ’ s judgment, set out in paragraph 31 above). In this particular context the Court takes into account the fact that some countries have recognised that the importance and the complexity of the subject matter, involving the need to ensure proper balancing of different interests and fundamental rights, call for the enactment of specific regulations for situations such as that pertaining in the present case (see paragraph 58 above). Such action is in line with the “ differentiated and graduated approach ” to the regulation of new media recommended by the Council of Europe (see paragraph 46 above) and has found support in the Court ’ s case-law (see, mutatis mutandis, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 63-64, ECHR 2011 ). However, although various legislative approaches are possible in legislation to take account of the nature of new media, the Court is satisfied on the facts of this case that the provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act, along with the relevant case-law, made it foreseeable that a media publisher running an Internet news portal for an economic purpose could, in principle, be held liable under domestic law for the uploading of clearly unlawful comments, of the type in issue in the present case, on its news portal.", "129. The Court accordingly finds that, as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delfi news portal is one of the largest in Estonia. Public concern had already been expressed before the publication of the comments in the present case and the Minister of Justice had noted that victims of insults could bring a suit against Delfi and claim damages (see paragraph 15 above). Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “ prescribed by law ” within the meaning of the second paragraph of Article 10 of the Convention.", "4. Legitimate aim", "130. The parties before the Grand Chamber did not dispute that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. The Court sees no reason to hold otherwise.", "5. Necessary in a democratic society", "(a) General principles", "131. The fundamental principles concerning the question whether an interference with freedom of expression is “ necessary in a democratic society ” are well established in the Court ’ s case-law (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013) and have been summarised as follows.", "“ ( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... ”", "132. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, cited above, § 59). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998 ‑ IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I).", "133. Moreover, the Court has previously held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ). At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63).", "134. In considering the “ duties and responsibilities ” of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audio - visual media often have a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, no. 15404/89, Commission decision of 16 April 1991, Decisions and Reports 70, p. 262). The methods of objective and balanced reporting may vary considerably, depending among other things on the media in question (see Jersild, cited above, § 31 ).", "135. The Court has held that the “ punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so ” (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, and Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013 ).", "136. Moreover, the Court has held that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports 1998 ‑ VII; Garaudy v. France (dec.), no. 65831/01, ECHR 2003 ‑ IX; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004 ‑ XI; Witzsch v. Germany (dec.), no. 7485/03, 13 December 2005; and Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007).", "137. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).", "138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “ protection of the reputation or rights of others ”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10, and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG, cited above, § 84 ).", "139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who was the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to Hachette Filipacchi Associés ( ICI PARIS ), no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover, cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011 ). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013 ).", "(b) Application of the above principles to the present case", "(i) Elements in the assessment of proportionality", "140. The Court notes that it is not disputed that the comments posted by readers in reaction to the news article published in the comments section on the applicant company ’ s Internet news portal were of a clearly unlawful nature. Indeed, the applicant company removed the comments once it was notified by the injured party, and described them as “ infringing ” and “ illicit ” before the Chamber (see paragraph 84 of the Chamber judgment). Moreover, the Court is of the view that the majority of the impugned comments amounted to hate speech or incitements to violence and as such did not enjoy the protection of Article 10 (see paragraph 136 above). Thus, the freedom of expression of the authors of the comments is not in issue in the present case. Rather, the question before the Court is whether the domestic courts ’ decisions, holding the applicant company liable for these comments posted by third parties, were in breach of its freedom to impart information as guaranteed by Article 10 of the Convention.", "141. The Court observes that, although the applicant company immediately removed the comments in question from its website upon notification by L. ’ s lawyers (see paragraphs 18 - 19 above), the Supreme Court held the applicant company liable on the basis of the Obligations Act as it should have prevented the publication of comments with clearly unlawful contents. It then referred to section 1047(3) of the Obligations Act, according to which disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the “ gravity of the potential violation ”. The Supreme Court thus held that, after the disclosure, the applicant company had failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. The inactivity of the applicant company was thus deemed unlawful as it had not “ proved the absence of culpability ” under section 1050(1) of the Obligations Act (see paragraph 16 of the Supreme Court judgment, set out in paragraph 31 above).", "142. In the light of the Supreme Court ’ s reasoning, the Court must, according to its consistent case-law, examine whether the domestic courts ’ finding of liability on the part of the applicant company was based on relevant and sufficient grounds in the particular circumstances of the case (see paragraph 131 above). The Court observes that, in order to resolve the question whether the domestic courts ’ decisions holding the applicant company liable for the comments posted by third parties were in breach of its freedom of expression, the Chamber identified the following aspects as relevant for its analysis: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and the consequences of the domestic proceedings for the applicant company (see paragraphs 85 et seq. of the Chamber judgment).", "143. The Court agrees that these aspects are relevant for the concrete assessment of the proportionality of the interference in issue within the scope of the Court ’ s examination of the present case (see paragraphs 112 - 17 above ).", "(ii) Context of the comments", "144. As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments regarding unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comments section, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company ’ s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the author of the comments did not mean that it had no control over the comments section (see paragraph 13 of the judgment, set out in paragraph 31 above).", "145. The Court also notes in this regard that the Rules on posting comments on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors ’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company ’ s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court ’ s reasoning, the Court agrees with the Chamber ’ s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal.", "146. In sum, the Court considers that it was sufficiently established by the Supreme Court that the applicant company ’ s involvement in making public the comments on its news articles on the Delfi news portal went beyond that of a passive, purely technical service provider. The Court therefore finds that the Supreme Court based its reasoning on this issue on grounds that were relevant for the purposes of Article 10 of the Convention.", "(iii) Liability of the authors of the comments", "147. In connection with the question whether the liability of the actual authors of the comments could serve as a sensible alternative to the liability of the Internet news portal in a case like the present one, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of ideas and information in an important manner, including, notably, on the Internet. At the same time, the Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of the information once disclosed, which may considerably aggravate the effects of unlawful speech on the Internet compared to traditional media. It also refers in this connection to a recent judgment of the Court of Justice of the European Union in Google Spain SL and Google Inc. (cited above), in which that court, albeit in a different context, dealt with the problem of the availability on the Internet of information seriously interfering with a person ’ s private life over an extended period of time, and found that the individual ’ s fundamental rights, as a rule, overrode the economic interests of the operator of a search engine and the interests of other Internet users (see paragraph 56 above).", "148. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification – ranging from limited verification (for example, through activation of an account via an e-mail address or a social network account) to secure authentication, be it by the use of national electronic identity cards or online banking authentication data allowing rather more secure identification of the user. A service provider may also allow an extensive degree of anonymity for its users, in which case the users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators.", "149. Thus, in the judgment in K.U. v. Finland, concerning an offence of “ malicious misrepresentation ” of a sexual nature against a minor, the Court found that “ [a] lthough freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others ” (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008). The Court in that case rejected the Government ’ s argument that the applicant had had the possibility of obtaining damages from the service provider, finding that this was not sufficient in the circumstances of the case. It held that there had to be a remedy enabling the actual offender to be identified and brought to justice, whereas at the relevant time the regulatory framework of the respondent State had not provided for the possibility of ordering the Internet service provider to divulge the information required for that purpose (ibid., §§ 47 and 49). Although K.U. v. Finland concerned a breach classified as a criminal offence under the domestic law and involved a more sweeping intrusion into the victim ’ s private life than the present case, it is evident from the Court ’ s reasoning that anonymity on the Internet, while an important factor, must be balanced against other rights and interests.", "150. As regards the establishment of the identity of the authors of the comments in civil proceedings, the Court notes that the parties ’ positions differed as to its feasibility. On the basis of the information provided by the parties, the Court observes that the Estonian courts, in the “ pre-trial taking of evidence ” procedure under Articles 244 et seq. of the Code of Civil Procedure (see paragraph 40 above), have granted requests by defamed persons for the disclosure by online newspapers or news portals of the IP addresses of authors who had posted allegedly defamatory comments and for the disclosure by Internet access providers of the names and addresses of the subscribers to whom the IP addresses in question had been assigned. The examples provided by the Government show mixed results: in some cases it had proved possible to establish the computer from which the comments had been made, while in other cases, for various technical reasons, this had proved impossible.", "151. According to the Supreme Court ’ s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to bring a claim effectively against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the judgment in Krone Verlag GmbH & Co. KG v. Austria (no. 4) ( no. 72331/01, § 32, 9 November 2006) in which it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company ’ s right to freedom of expression.", "(iv) Measures taken by the applicant company", "152. The Court notes that the applicant company highlighted the number of comments on each article on its website, and therefore the articles with the most lively exchanges must have been easily identifiable for the editors of the news portal. The article in issue in the present case attracted 185 comments, apparently well above average. The comments in question were removed by the applicant company some six weeks after they were uploaded on the website, upon notification by the injured person ’ s lawyers to the applicant company (see paragraphs 17 - 19 above).", "153. The Court observes that the Supreme Court stated in its judgment that “ [o]n account of the obligation arising from law to avoid causing harm, the [applicant company] should have prevented the publication of comments with clearly unlawful contents ”. However, it also held that “ [a]fter the disclosure, the [applicant company had] failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative ” (see paragraph 16 of the judgment, set out in paragraph 31 above). Therefore, the Supreme Court did not explicitly determine whether the applicant company was under an obligation to prevent the uploading of the comments to the website or whether it would have sufficed under domestic law for the applicant company to have removed the offending comments without delay after publication to escape liability under the Obligations Act. The Court considers that, when assessing the grounds upon which the Supreme Court relied in its judgment entailing an interference with the applicant company ’ s Convention rights, there is nothing to suggest that the national court intended to restrict its rights to a greater extent than that required to achieve the aim pursued. On this basis, and having regard to the freedom to impart information as enshrined in Article 10, the Court will thus proceed on the assumption that the Supreme Court ’ s judgment must be understood to mean that had the applicant company removed the comments without delay after publication, this would have sufficed for it to escape liability under domestic law. Consequently, and taking account of the above findings (see paragraph 145 ) to the effect that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal, the Court does not consider that the imposition on the applicant company of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, and were thus clearly unlawful on their face, amounted, in principle, to a disproportionate interference with its freedom of expression.", "154. The pertinent issue in the present case is whether the national court ’ s findings that liability was justified, as the applicant company had not removed the comments without delay after publication, were based on relevant and sufficient grounds. With this in mind, account must first be taken of whether the applicant company had put in place mechanisms that were capable of filtering comments amounting to hate speech or speech entailing an incitement to violence.", "155. The Court notes that the applicant company took certain measures in this regard. There was a disclaimer on the Delfi news portal stating that the writers of the comments – and not the applicant company – were accountable for them, and that the posting of comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities, was prohibited. Furthermore, the portal had an automatic system of deletion of comments based on stems of certain vulgar words and it had a notice-and-take-down system in place, whereby anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose to bring it to the attention of the portal administrators. In addition, on some occasions the administrators removed inappropriate comments on their own initiative.", "156. Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention (see paragraph 136 above). The Court notes that as a consequence of this failure of the filtering mechanism these clearly unlawful comments remained online for six weeks (see paragraphs 18 -19 above).", "157. The Court observes in this connection that on some occasions the portal administrators did remove inappropriate comments on their own initiative and that, apparently some time after the events of the present case, the applicant company set up a dedicated team of moderators. Having regard to the fact that there are ample opportunities for anyone to make his or her voice heard on the Internet, the Court considers that a large news portal ’ s obligation to take effective measures to limit the dissemination of hate speech and speech inciting violence – the issue in the present case – can by no means be equated to “ private censorship ”. While acknowledging the “ important role ” played by the Internet “ in enhancing the public ’ s access to news and facilitating the dissemination of information in general ” ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ), the Court reiterates that it is also mindful of the risk of harm posed by content and communications on the Internet (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63; see also Mosley, cited above, § 130).", "158. Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.", "159. Lastly, the Court observes that the applicant company has argued (see paragraph 78 above) that the Court should have due regard to the notice-and-take-down system that it had introduced. If accompanied by effective procedures allowing for rapid response, this system can in the Court ’ s view function in many cases as an appropriate tool for balancing the rights and interests of all those involved. However, in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court ’ s case-law (see paragraph 136 above), the Court considers, as stated above (see paragraph 153 ), that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties.", "(v) Consequences for the applicant company", "160. Finally, turning to the question of consequences of the domestic proceedings for the applicant company, the Court notes that it was obliged to pay the injured person the equivalent of EUR 320 in compensation for non-pecuniary damage. It agrees with the finding of the Chamber that this sum, also taking into account the fact that the applicant company was a professional operator of one of the largest Internet news portals in Estonia, can by no means be considered disproportionate to the breach established by the domestic courts (see paragraph 93 of the Chamber judgment). The Court notes in this connection that it has also had regard to the post- Delfi domestic case-law on the liability of the operators of Internet news portals (see paragraph 43 above). It observes that in these cases the lower courts have followed the Supreme Court ’ s judgment in Delfi but no awards have been made for non-pecuniary damage. In other words, the tangible result for the operators in post- Delfi cases has been that they have taken down the offending comments but have not been ordered to pay compensation for non-pecuniary damage.", "161. The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia ’ s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company ’ s freedom of expression was disproportionate on that account either.", "(vi) Conclusion", "162. Based on the concrete assessment of the above aspects, taking into account the reasoning of the Supreme Court in the present case, in particular the extreme nature of the comments in question, the fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction imposed on the applicant company, the Court finds that the domestic courts ’ imposition of liability on the applicant company was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company ’ s right to freedom of expression.", "Accordingly, there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant company is a public limited liability company ( aktsiaselts ), registered in Estonia.", "A. Background to the case", "11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia, and also operates in Latvia and Lithuania.", "12. At the material time, at the end of the body of the news articles there were the words “ add your comment ” and fields for comments, the commenter ’ s name and his or her e-mail address (optional). Below these fields there were buttons labelled “ publish the comment ” and “ read comments ”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “ read comments ” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers ’ comments daily, the majority posted under pseudonyms.", "13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (Estonian for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, comments that included certain stems of obscene words were automatically deleted. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately.", "14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi ’ s website there were Rules on posting comments which included the following.", "“ The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit the comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ...", "Delfi prohibits comments whose content does not comply with good practice.", "These are comments that", "– contain threats;", "– contain insults;", "– incite hostility and violence;", "– incite illegal activities ...", "– contain off-topic links, spam or advertisements;", "– are without substance and/or off topic;", "– contain obscene expressions and vulgarities ...", "Delfi reserves the right to remove such comments and restrict their authors ’ access to the writing of comments ... ”", "The functioning of the notice-and-take-down system was also explained in the Rules on posting comments.", "15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about the incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure freedom of expression as well as the protection of everyone ’ s honour and good name, including sections 1043 and 1046 of the Obligations Act ( Võlaõigusseadus ).", "B. Article and comments published on the Internet news portal", "16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “ SLK Destroyed Planned Ice Road ”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “ SLK ” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. At the material time, L. was a member of the supervisory board of SLK and the company ’ s sole or majority shareholder.", "17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed at L.", "18. On 9 March 2006 L. ’ s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments.", "“ 1. ( 1) there are currents in [V]äinameri", "(2) open water is closer to the places you referred to, and the ice is thinner.", "Proposal – let ’ s do the same as in 1905, let ’ s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag", "2. bloody shitheads...", "they ’re loaded anyway thanks to that monopoly and State subsidies and have now started to worry that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!", "3. good that [La. ’ s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!", "4. [ little L.] go and drown yourself", "5. aha ... [I] hardly believe that that happened by accident... assholes fck", "6. rascal !!! [ in Russian]", "7. What are you whining for, knock this bastard down once and for all[ .] In future the other ones ... will know what they risk, even they will only have one little life.", "8. ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn ’ t he.", "9. “ a good man lives a long time, a shitty man a day or two ”", "10. If there was an ice road, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it ’ s your fault", "11. and can ’ t anyone stand up to these shits?", "12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.", "13. wonder whether [L.] won ’ t be knocked down in Saaremaa? screwing one ’ s own folk like that.", "14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this.", "Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the State is powerless towards them – it is really them who govern the State), because they only live for today. Tomorrow, the flood.", "15. this [V.] will one day get hit with a cake by me.", "damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way", "16. bastards !!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!", "17. Estonian State, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram ’ s Michaelmas. [1] Actually feel sorry for [L.] – he’s a human, after all ... :D :D :D", "18. ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :)", "19. fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he ’ s acting like a pig from year to year", "20. you can ’ t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the State and [L.] do not care about the people ’ s opinion) ... just for fun, with no greed for money – I pee into [L. ’ s] ear and then I also shit onto his head. :) ”", "19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company.", "20. On 23 March 2006 the applicant company responded to the request from L. ’ s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages.", "C. Civil proceedings against the applicant company", "21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company.", "22. At the hearing of 28 May 2007, the representatives of the applicant company submitted, inter alia, that in cases like that concerning the “ Bronze Night ” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, on its own initiative.", "23. By a judgment of 25 June 2007, L. ’ s claim was dismissed. The County Court found that the applicant company ’ s liability was excluded under the Information Society Services Act ( Infoühiskonna teenuse seadus ), which was based on Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ( Directive on electronic commerce ). The court considered that the comments section on the applicant company ’ s news portal was to be distinguished from its journalistic section. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them.", "24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company ’ s liability was excluded under the Information Society Services Act. The County Court ’ s judgment was quashed and the case was referred back to the first-instance court for fresh consideration.", "25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company.", "26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal ’ s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had indicated on its website that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments.", "27. The County Court found that the news article itself published on the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory, and impaired L. ’ s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L. ’ s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage.", "28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court ’ s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims.", "29. The Court of Appeal rejected the applicant company ’ s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to post comments. Thus, the applicant company was a provider of content services rather than of technical services.", "30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal ’ s judgment in substance, but partly modified its reasoning.", "31. The Supreme Court held as follows.", "“ 10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal ’ s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure.", "11. The parties do not dispute the following circumstances:", "(a) on 24 January 2006 the defendant ’ s Internet portal ‘ Delfi ’ published an article entitled ‘ SLK Destroyed Planned Ice Road ’;", "(b) the defendant provided visitors to the Internet portal with the opportunity to comment on articles;", "(c) of the comments published [ avaldatud [2] ] on the aforementioned article, twenty contain content which is derogatory towards the plaintiff [L.];", "(d) the defendant removed the derogatory comments after the plaintiff ’ s letter of 9 March 2006.", "12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the content of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful content.", "13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act].", "According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to this provision, ‘ information society services ’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service.", "Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: ( a ) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; ( b ) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider ’ s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the content of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information.", "Since the Information Society Services Act is based on Directive 200 0 /31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by Recital 42 of the preamble to the Directive, according to which the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘ content services ’ who have control over the content of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive.", "The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments [ hinnangud ] and opinions (comments). In the comments section, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant ’ s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the author of the comments does not mean that the defendant has no control over the comments section. The defendant sets out the rules for the comments section and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant ’ s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not lead to the conclusion that the publishing of comments is not under the defendant ’ s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comments section, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case.", "14. It is not disputed that the defendant is the publisher of an article entitled ‘ SLK Destroyed Planned Ice Road ’, published on the Delfi Internet portal on 24 January 2006. The County Court also found that the defendant must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the authors of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the authors of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant [Delfi].", "The Chamber has explained the definitions of “ disclosure ” and “ discloser ” in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [ avaldamine ] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [ avaldamine ] of information in the media, the discloser/publisher [ avaldaja ] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ ajakirjanduslik tegevus ]. At the same time, because of the nature of Internet media [ internetiajakirjandus ], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [ trükiajakirjanduse väljaanne ]. While the publisher [ ( väljaandja ) of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [ väljaandja ] of printed media and an Internet portal operator are publishers/disclosers [ avaldajad ] as entrepreneurs.", "In cases concerning a value judgment [ väärtushinnang ] that prejudices and denigrates a person ’ s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of the Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [ hinnangud ] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public).", "15. In reply to the allegations in the defendant ’ s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following.", "The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone ’ s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person ’ s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person ’ s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person ’ s honour and good name.", "In the interests of the protection of a person ’ s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff ’ s honour was not justified and was therefore unlawful; as there was no discussion of the [news] topic in the comments, the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Obligations Act is interpreted in conformity with the Constitution, injuring a person ’ s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats.", "The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the authors of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1 )( 4) of the Obligations Act).", "16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant ’ s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless.", "On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful content. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person ’ s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant ’ s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [ süü ] (section 1050(1) of the Obligations Act). ”", "D. Subsequent developments", "32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the Rules on posting comments. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the Rules on posting comments was monitored as well. According to the information published, the number of comments posted by Delfi ’ s readers in August 2009 had been 190,000. Delfi ’ s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The percentage of defamatory comments had been less than 0.5% of the total number of comments." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "33. The Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides as follows.", "Article 17", "“ No one ’ s honour or good name shall be defamed. ”", "Article 19", "“ 1. Everyone has the right to free self-realisation.", "2. Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. ”", "Article 45", "“ 1. Everyone has the right freely to disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for State and local government public servants, to protect a State or business secret or information received in confidence which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice.", "2. There is to be no censorship. ”", "34. Section 138 of the Civil Code (General Principles) Act ( Tsiviilseadustiku üldosa seadus ) provides that rights are to be exercised and obligations performed in good faith. A right must not be exercised in an unlawful manner or with the aim of causing damage to another person.", "35. Subsection 2 of section 134 of the Obligations Act ( Võlaõigusseadus ) provides:", "“ In the case of an obligation to compensate for damage arising from ... a breach of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the breach, in particular by physical or emotional distress. ”", "36. Section 1043 of the Obligations Act provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) must compensate for the damage if the tortfeasor is culpable ( süüdi ) of causing the damage or is liable for causing the damage pursuant to the law.", "37. Section 1045 of the Obligations Act provides that the causing of damage is unlawful if, inter alia, it results from a breach of a personality right of the victim.", "38. The Obligations Act further provides.", "Section 1046 – Unlawfulness of damage to personality rights", "“ (1) Injuring a person ’ s honour, inter alia, by passing an undue value judgment, unjustified use of a person ’ s name or image, or breaching the inviolability of a person ’ s private life or another personality right, is unlawful unless otherwise provided by law. In establishing such unlawfulness, the type of the breach, the reason and motive for the breach and the gravity of the breach relative to the aim pursued thereby shall be taken into consideration.", "(2) The breach of a personality right is not unlawful if the breach is justified in view of other legal rights protected by law and the rights of third parties or public interests. In such cases, unlawfulness shall be established on the basis of a comparative assessment of the different legal rights and interests protected by law. ”", "Section 1047 – Unlawfulness of disclosure of incorrect information", "“ (1) A breach of personality rights or interference with the economic or professional activities of a person by way of disclosure [ avaldamine ] of incorrect information, or by way of incomplete or misleading disclosure of information concerning the person or the person ’ s activities, is unlawful unless the person who discloses such information proves that, at the time of such disclosure, he or she was not aware and was not required to be aware that such information was incorrect or incomplete.", "(2) Disclosure of defamatory matters concerning a person, or matters which may adversely affect a person ’ s economic situation, is deemed to be unlawful unless the person who discloses such matters proves that they are true.", "(3) Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential breach.", "(4) In the event of disclosure of incorrect information, the victim may demand that the person who has disclosed such information refute the information or publish a correction at his or her own expense, regardless of whether the disclosure of the information was unlawful or not. ”", "Section 1050 – Culpability [ süü ] as basis for liability", "“ (1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable [ süüdi ] of causing the damage.", "(2) The situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration in the assessment of the culpability [ süü ] of the person for the purposes of this Chapter.", "(3) If several persons are liable for compensation for damage and, pursuant to law, one or more of them are liable for compensation for unlawfully caused damage regardless of whether or not they are culpable, the wrongfulness of the behaviour and the form of the culpability of the persons liable for compensation for the damage shall be taken into consideration in apportioning among them the obligation to compensate for the damage. ”", "Section 1055 – Prohibition on damaging actions", "“ (1) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand the cessation of the behaviour causing the damage or of the threats of such behaviour. In the event of bodily injury, damage to health or a breach of the inviolability of personal life or of any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited from approaching others (restraining order), that the use of housing or communications be regulated, or that other similar measures be applied.", "(2) The right to demand the cessation of behaviour causing damage as specified in subsection (1) of this section shall not apply if it is reasonable to expect that such behaviour can be tolerated in conditions of human coexistence or in view of a significant public interest. In such cases, the victim shall have the right to make a claim for compensation for damage caused unlawfully.", "... ”", "39. The Information Society Services Act ( Infoühiskonna teenuse seadus ) provides as follows.", "Section 8 – Restricted liability in the case of mere transmission of information and provision of access to a public data communications network", "“ (1) Where a service is provided that consists of the mere transmission in a public data communication network of information provided by a recipient of the service, or the provision of access to a public data communication network, the service provider shall not be liable for the information transmitted, on condition that the provider:", "1. does not initiate the transmission;", "2. does not select the receiver of the transmission; and", "3. does not select or modify the information contained in the transmission.", "(2) The acts of transmission and of provision of access within the meaning of subsection 1 of this section include the automatic, intermediate and transient storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission in the public data communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. ”", "Section 9 – Restricted liability in the case of temporary storage of information in cache memory", "“ (1) Where a service is provided that consists of the transmission in a public data communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information if the method of transmission concerned requires caching for technical reasons and the caching is performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service at their request, on condition that:", "1. the provider does not modify the information;", "2. the provider complies with conditions on access to the information;", "3. the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used in the industry;", "4. the provider does not interfere with the lawful use of technology which is widely recognised and used by the industry to obtain data on the use of the information;", "5. the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court, the police or a State supervisory authority has ordered such removal. ”", "Section 10 – Restricted liability in the case of provision of an information storage service", "“ (1) Where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that:", "1. the provider does not have actual knowledge of the content of the information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent;", "2. the provider, upon obtaining knowledge or awareness of the facts specified in paragraph 1 of this subsection, acts expeditiously to remove or to disable access to the information.", "(2) Subsection 1 of this section shall not apply when the recipient of the service is acting under the authority or the control of the provider. ”", "Section 11 – No obligation to monitor", "“ (1) A service provider specified in sections 8 to 10 of this Act is not obliged to monitor information upon the mere transmission thereof or provision of access thereto, temporary storage thereof in cache memory or storage thereof at the request of the recipient of the service, nor is the service provider obliged actively to seek information or circumstances indicating illegal activity.", "(2) The provisions of subsection 1 of this section shall not restrict the right of an official exercising supervision to request the disclosure of such information by a service provider.", "(3) Service providers are required promptly to inform the competent supervisory authorities of alleged illegal activities undertaken or information provided by recipients of their services specified in sections 8 to 10 of this Act, and to communicate to the competent authorities information enabling the identification of recipients of their service with whom they have storage agreements.", "... ”", "40. Articles 244 et seq. of the Code of Civil Procedure ( Tsiviilkohtumenetluse seadustik ) provide for pre-trial taking of evidence ( eeltõendamismenetlus ) – a procedure in which evidence may be taken before the judicial proceedings have even been initiated if it can be presumed that evidence might be lost or that using the evidence afterwards might involve difficulties.", "41. In a judgment of 21 December 2005 (case no. 3-2-1-95-05), the Supreme Court found that, for the purposes of section 1047 of the Obligations Act, disclosure ( avaldamine ) meant disclosure of information to third parties. A person who transmitted information to a media publisher ( meediaväljaanne ) could be considered a discloser ( avaldaja ) even if he or she was not the publisher of the article ( ajaleheartikli avaldaja ) in question. The Supreme Court has reiterated the same position in its subsequent judgments, for example in a judgment of 21 December 2010 (case no. 3 ‑ 2 ‑ 1-67-10).", "42. In a number of domestic cases, actions for defamation have been brought against several defendants, including, for example, a publisher of a newspaper and the author of an article (Supreme Court judgment of 7 May 1998 in case no. 3-2-1-61-98), a publisher of a newspaper and an interviewee (Supreme Court judgment of 1 December 1997 in case no. 3 ‑ 2 ‑ 1-99-97), and solely against a publisher of a newspaper (Supreme Court judgments of 30 October 1997 in case no. 3-2-1-123-97, and 10 October 2007 in case no. 3-2-1-53-07).", "43. Following the Supreme Court ’ s judgment of 10 June 2009 in the case giving rise to the present case before the Court (case no. 3-2-1-43-09), several lower courts have resolved the issue of liability in respect of comments relating to online news articles in a similar manner. Thus, in a judgment of 21 February 2012, the Tallinn Court of Appeal (case no. 2 ‑ 08 ‑ 76058) upheld a lower court ’ s judgment concerning a defamed person ’ s claim against a publisher of a newspaper. The publisher was found liable for defamatory online comments posted by readers in the newspaper ’ s online comments section. The courts found that the publisher was a content service provider. They rejected the publisher ’ s request for a preliminary ruling from the Court of Justice of the European Union (CJEU), finding that it was evident that the defendant did not satisfy the criteria for a passive service provider as previously interpreted by the CJEU and the Supreme Court, and that the relevant rules were sufficiently clear. Therefore, no new directions from the CJEU were needed. The courts also noted that, pursuant to the judgment of 23 March 2010 of the CJEU (Joined Cases C ‑ 236/08 to C ‑ 238/08, Google France SARL and Google Inc. [2010] ECR I ‑ 2417), it was for the national courts to assess whether the role played by a service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. The courts considered that this was not the case in the matter before them. As the publisher had already deleted the defamatory comments by the time of the delivery of the judgment, no ruling was made on that issue; the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed. A similar judgment was handed down by the Tallinn Court of Appeal on 27 June 2013 (case no. 2-10-46710). In that case as well, an Internet news portal was held liable for defamatory comments posted by readers and the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed.", "III. RELEVANT INTERNATIONAL INSTRUMENTS", "A. Council of Europe documents", "44. On 28 May 2003, at the 840th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted a declaration on freedom of communication on the Internet. The relevant parts of the declaration read as follows.", "“ The member states of the Council of Europe,", "...", "Convinced also that it is necessary to limit the liability of service providers when they act as mere transmitters, or when they, in good faith, provide access to, or host, content from third parties;", "Recalling in this respect Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);", "Stressing that freedom of communication on the Internet should not prejudice the human dignity, human rights and fundamental freedoms of others, especially minors;", "Considering that a balance has to be found between respecting the will of users of the Internet not to disclose their identity and the need for law enforcement authorities to trace those responsible for criminal acts;", "...", "Declare that they seek to abide by the following principles in the field of communication on the Internet:", "Principle 1: Content rules for the Internet", "Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery.", "...", "Principle 3: Absence of prior state control", "Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries.", "Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality.", "...", "Principle 6: Limited liability of service providers for Internet content", "Member states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity.", "Member states should ensure that service providers are not held liable for content on the Internet when their function is limited, as defined by national law, to transmitting information or providing access to the Internet.", "In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information.", "When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information.", "In all cases, the above-mentioned limitations of liability should not affect the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of the law.", "Principle 7: Anonymity", "In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police. ”", "45. In its Recommendation CM/ Rec( 2007)16 to member States on measures to promote the public service value of the Internet (adopted on 7 November 2007), the Committee of Ministers noted that the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights. It recommended that the member States draw up a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies.", "46. Recommendation CM/ Rec( 2011)7 of the Committee of Ministers to member states on a new notion of media (adopted on 21 September 2011) reads as follows.", "“ ...", "The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states:", "– adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents;", "– review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people ’ s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship;", "– apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society;", "... ”", "The Appendix to the Recommendation states as follows, in so far as relevant.", "“ 7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe.", "...", "30. Editorial control can be evidenced by the actors ’ own policy decisions on the content to make available or to promote, and on the manner in which to present or arrange it. Legacy media sometimes publicise explicitly written editorial policies, but they can also be found in internal instructions or criteria for selecting or processing (for example verifying or validating) content. In the new communications environments, editorial policies can be embedded in mission statements or in terms and conditions of use (which may contain very detailed provisions on content), or may be expressed informally as a commitment to certain principles (for example netiquette, motto).", "...", "32. Editorial process can involve users (for example peer review and take down requests) with ultimate decisions taken according to an internally defined process and having regard to specified criteria (reactive moderation). New media often resort to ex post moderation (often referred to as post-moderation) in respect of user generated content, which may at first sight be imperceptible. Editorial processes may also be automated (for example in the case of algorithms ex ante selecting content or comparing content with copyrighted material).", "...", "35. Again, it should be noted that different levels of editorial control go along with different levels of editorial responsibility. Different levels of editorial control or editorial modalities (for example ex ante as compared with ex post moderation) call for differentiated responses and will almost certainly permit best to graduate the response.", "36. Consequently, a provider of an intermediary or auxiliary service which contributes to the functioning or accessing of a media but does not – or should not – itself exercise editorial control, and therefore has limited or no editorial responsibility, should not be considered to be media. However, their action may be relevant in a media context. Nonetheless, action taken by providers of intermediary or auxiliary services as a result of legal obligations (for example take down of content in response to a judicial order) should not be considered as editorial control in the sense of the above.", "...", "63. The importance of the role of intermediaries should be underlined. They offer alternative and complementary means or channels for the dissemination of media content, thus broadening outreach and enhancing effectiveness in media ’ s achievements of its purposes and objectives. In a competitive intermediaries and auxiliaries market, they may significantly reduce the risk of interference by authorities. However, given the degree to which media have to rely on them in the new ecosystem, there is also a risk of censorship operated through intermediaries and auxiliaries. Certain situations may also pose a risk of private censorship (by intermediaries and auxiliaries in respect of media to which they provide services or content they carry). ”", "47. On 16 April 2014 Recommendation CM/ Rec( 2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Guide reads as follows.", "Freedom of expression and information", "“ You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:", "1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy;", "2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight;", "...", "6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed. ”", "B. Other international documents", "48. In his report of 16 May 2011 (A/HRC/17/27) to the Human Rights Council, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following.", "“ 25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).", "...", "27. In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals ’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate. ...", "...", "43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf ...", "...", "74. Intermediaries play a fundamental role in enabling Internet users to enjoy their right to freedom of expression and access to information. Given their unprecedented influence over how and what is circulated on the Internet, States have increasingly sought to exert control over them and to hold them legally liable for failing to prevent access to content deemed to be illegal. ”", "49. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media and the OAS (Organization of American States) Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following:", "“ No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content. ”", "IV. RELEVANT EUROPEAN UNION AND COMPARATIVE LAW MATERIAL", "A. European Union instruments and case-law", "1. Directive 2000/31/EC", "50. The relevant parts of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provide as follows.", "“ (9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.", "...", "(42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.", "(43) A service provider can benefit from the exemptions for ‘ mere conduit ’ and for ‘ caching ’ when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission.", "(44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘ mere conduit ’ or ‘ caching ’ and as a result cannot benefit from the liability exemptions established for these activities.", "(45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.", "(46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States ’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information.", "(47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.", "(48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.", "...", "Article 1", "Objective and scope", "1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.", "...", "Article 2", "Definitions", "For the purpose of this Directive, the following terms shall bear the following meanings:", "(a) ‘ information society services ’ : services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC;", "(b) ‘ service provider ’ : any natural or legal person providing an information society service;", "(c) ‘ established service provider ’ : a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider;", "...", "Section 4: Liability of intermediary service providers", "Article 12", "‘ Mere conduit ’", "1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:", "(a) does not initiate the transmission;", "(b) does not select the receiver of the transmission; and", "(c) does not select or modify the information contained in the transmission.", "2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.", "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement.", "Article 13", "‘ Caching ’", "1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service upon their request, on condition that:", "(a) the provider does not modify the information;", "(b) the provider complies with conditions on access to the information;", "(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;", "(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and", "(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.", "2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement.", "Article 14", "Hosting", "1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:", "(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or", "(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.", "2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.", "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.", "Article 15", "No general obligation to monitor", "1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.", "2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements. ”", "2. Directive 98/34/EC as amended by Directive 98/48/EC", "51. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC, provides as follows:", "Article 1", "“ For the purposes of this Directive, the following meanings shall apply :", "...", "2. ‘ service ’, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.", "For the purposes of this definition:", "– ‘ at a distance ’ means that the service is provided without the parties being simultaneously present,", "– ‘ by electronic means ’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,", "– ‘ at the individual request of a recipient of services ’ means that the service is provided through the transmission of data on individual request.", "An indicative list of services not covered by this definition is set out in Annex V.", "This Directive shall not apply to:", "– radio broadcasting services,", "– television broadcasting services covered by point (a) of Article 1 of Directive 89/552/EEC. ”", "3. Case-law of the CJEU", "52. In a judgment of 23 March 2010 (Joined Cases C ‑ 236/08 to C ‑ 238/08 Google France SARL and Google Inc. ), the CJEU considered that, in order to establish whether the liability of a referencing service provider could be limited under Article 14 of the Directive on electronic commerce, it was necessary to examine whether the role played by that service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. Article 14 of the Directive on electronic commerce had to be interpreted as meaning that the rule laid down therein applied to an Internet referencing service provider in the event that that service provider had not played an active role of such a kind as to give it knowledge of or control over the data stored. If it had not played such a role, that service provider could not be held liable for the data which it had stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser ’ s activities, it had failed to act expeditiously to remove or to disable access to the data concerned.", "53. In a judgment of 12 July 2011 (Case C ‑ 324/09, L ’ Oréal SA and Others ), the CJEU ruled that Article 14 § 1 of the Directive on electronic commerce was to be interpreted as applying to the operator of an online marketplace where that operator had not played an active role allowing it to have knowledge of or control over the data stored. The operator played such a role when it provided assistance which entailed, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace had not played such an active role and the service provided fell, as a consequence, within the scope of Article 14 § 1 of the Directive on electronic commerce, the operator none the less could not, in a case which could result in an order to pay damages, rely on the exemption from liability provided for under that Article if it had been aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question had been unlawful and, in the event of it being so aware, had failed to act expeditiously in accordance with Article 14 § 1 (b) of the Directive on electronic commerce.", "54. In a judgment of 24 November 2011 (Case C-70/10, Scarlet Extended SA ), the CJEU ruled that an injunction could not be made against an Internet service provider requiring it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software, which applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying on that provider ’ s network the movement of electronic files containing a musical, cinematographic or audio - visual work in respect of which the applicant claimed to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which would infringe copyright.", "55. In a judgment of 16 February 2012 (Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA ( SABAM ) ) the CJEU held that the Directive on electronic commerce and Directives 2000/31/EC, 2001/29/EC and 2004/48/EC precluded a national court from issuing an injunction against a hosting service provider requiring it to install a system for filtering information stored on its servers by its service users, which applied indiscriminately to all those users, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying electronic files containing musical, cinematographic or audio - visual work in respect of which the applicant for the injunction claimed to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright.", "56. In a judgment of 13 May 2014 (Case C-131/12, Google Spain SL and Google Inc. ), the CJEU was called upon to interpret Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. It found that the activity of an Internet search engine was to be classified as “ processing of personal data ” within the meaning of Directive 95/46/EC and held that such processing of personal data, carried out by the operator of a search engine, was liable to affect significantly the fundamental rights to privacy and to the protection of personal data (guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union) when the search by means of that engine was carried out on the basis of an individual ’ s name, since that processing enabled any Internet user to obtain through the list of results a structured overview of the information relating to that individual that could be found on the Internet and thereby to establish a more or less detailed profile of him or her. Furthermore, the effect of the interference with the rights of the data subject was heightened on account of the important role played by the Internet and search engines in modern society, which rendered the information contained in such a list of results ubiquitous. In the light of the potential seriousness of that interference, it could not be justified merely by the economic interest of the operator. The CJEU considered that a fair balance should be sought between the legitimate interest of Internet users in having access to the information and the data subject ’ s fundamental rights. The data subject ’ s fundamental rights, as a general rule, overrode the interest of Internet users, but that balance might, however, depend on the nature of the information in question and its sensitivity for the data subject ’ s private life and on the interest of the public in having that information. The CJEU held that in certain cases the operator of a search engine was obliged to remove from the list of results displayed following a search made on the basis of a person ’ s name links to web pages, published by third parties and containing information relating to that person, even when its publication in itself on the web pages in question was lawful. That was so in particular where the data appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they had been processed and in the light of the time that had elapsed.", "57. In a judgment of 11 September 2014 (Case C-291/13, Sotiris Papasavvas ), the CJEU found that, since a newspaper publishing company which posted an online version of a newspaper on its website had, in principle, knowledge of the information which it posted and exercised control over that information, it could not be considered to be an “ intermediary service provider ” within the meaning of Articles 12 to 14 of Directive 2000/31 /EC, whether or not access to that website was free of charge. Thus, it held that the limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 /EC did not apply to the case of a newspaper publishing company which operated a website on which the online version of a newspaper was posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on the website, since it had knowledge of the information posted and exercised control over that information, whether or not access to the website was free of charge.", "B. Comparative law material", "58. From the information available to the Court, it would appear that in a number of the member States of the Council of Europe – which are also member States of the European Union – the Directive on electronic commerce, as transposed into national law, constitutes a primary source of law in the area in question. It would also appear that the greater the involvement of the operator in the third-party content before online publication – whether through prior censoring, editing, selection of recipients, requesting comments on a predefined subject or the adoption of content as the operator ’ s own – the greater the likelihood that the operator will be held liable for that content. Some countries have enacted certain further regulations specifically concerning the take-down procedures relating to allegedly unlawful content on the Internet, and provisions concerning distribution of liability in this context.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "59. The applicant company complained that holding it liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided for in Article 10 of the Convention, which reads as follows.", "“ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ”", "60. The Government contested that argument.", "A. The Chamber judgment", "61. In its judgment of 10 October 2013, the Chamber noted at the outset that the parties ’ views diverged as to the applicant company ’ s role in the present case. According to the Government, the applicant company was to be considered the discloser of the defamatory comments, whereas the applicant company was of the opinion that its freedom to impart information created and published by third parties was at stake, and that the applicant company itself was not a publisher of the third-party comments. The Chamber did not proceed to determine the exact role to be attributed to the applicant company ’ s activities and noted that it was not, in substance, in dispute between the parties that the domestic courts ’ decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention.", "62. As regards the lawfulness of the interference, the Chamber rejected the applicant company ’ s argument that the interference with its freedom of expression was not “ prescribed by law ”. The Chamber observed that the domestic courts had found that the applicant company ’ s activities did not fall within the scope of the Directive on electronic commerce and the Information Society Services Act. It considered that it was not its task to take the place of the domestic courts and that it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Chamber was furthermore satisfied that the relevant provisions of the civil law – although they were quite general and lacked detail in comparison with, for example, the Information Society Services Act – along with the relevant case-law, made it clear that a media publisher was liable for any defamatory statements made in its publication. The Chamber had regard to the fact that the applicant company was a professional publisher which operated one of the largest news portals in Estonia, and also that a degree of notoriety had been attributable to comments posted in its commenting area. Against that background, the Chamber considered that the applicant company had been in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail.", "63. The Chamber further found that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. In the Chamber ’ s view, the fact that the actual authors of the comments were also in principle liable did not remove the legitimate aim of holding the applicant company liable for any damage to the reputation and rights of others.", "64. As regards the proportionality of the interference, the Chamber noted that there was no dispute that the comments in question had been of a defamatory nature. In assessing the proportionality of the interference with the applicant company ’ s freedom of expression, the Chamber had regard to the following elements. It examined firstly the context of the comments, secondly, the measures applied by the applicant company in order to prevent or remove defamatory comments, thirdly, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and, fourthly, the consequences of the domestic proceedings for the applicant company.", "65. In particular, the Chamber considered that the news article published by the applicant company that had given rise to the defamatory comments had concerned a matter of public interest and the applicant company could have foreseen the negative reactions and exercised a degree of caution in order to avoid being held liable for damaging the reputation of others. However, the prior automatic filtering and notice-and-take-down system used by the applicant company had not ensured sufficient protection for the rights of third parties. Moreover, publishing news articles and making readers ’ comments on them public had been part of the applicant company ’ s professional activities and its advertising revenue depended on the number of readers and comments. The applicant company had been able to exercise a substantial degree of control over readers ’ comments and it had been in a position to predict the nature of the comments a particular article was liable to prompt and to take technical or manual measures to prevent defamatory statements from being made public. Furthermore, there had been no realistic opportunity of bringing a civil claim against the actual authors of the comments as their identity could not easily be established. In any event, the Chamber was not convinced that measures allowing an injured party to bring a claim only against the authors of defamatory comments would have guaranteed effective protection of the injured party ’ s right to respect for his or her private life. It had been the applicant company ’ s choice to allow comments by non-registered users, and by doing so it had to be considered to have assumed a certain responsibility for such comments. For all the above reasons, and considering the moderate amount of damages the applicant company had been ordered to pay, the restriction on its freedom of expression was considered to have been justified and proportionate. There had accordingly been no violation of Article 10 of the Convention.", "B. The parties ’ submissions to the Grand Chamber", "1. The applicant company", "(a) General remarks", "66. The applicant company argued that in today ’ s world, Internet media content was increasingly created by the users themselves. User-generated content was of high importance – comments on news stories and articles often raised serious debates in society and even informed journalists of issues that were not publicly known, thereby contributing to the initiation of journalistic investigations. The possibility for “ everyone ” to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship.", "67. As regards user-generated content, the applicant company was of the opinion that it was sufficient for a host to expeditiously remove third-party content as soon as it became aware of its illegal nature. If this was deemed insufficient by the Court, anonymous public speech would be prohibited or there would be arbitrary restrictions on commenters ’ freedom of communication by the intermediary, which would be impelled to err on the side of caution to avoid possible subsequent liability.", "(b) Delfi ’ s role", "68. The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments. It argued that intermediaries were not best suited to decide upon the legality of user-generated content. This was especially so in respect of defamatory content since the victim alone could assess what caused damage to his reputation.", "(c) Lawfulness", "69. The applicant company argued that the interference with its freedom of expression – including its right to store information and to enable users to impart their opinions – was not prescribed by law. It submitted that there was no legislation or case-law stating that an intermediary was to be considered a publisher of content which it was not aware of. On the contrary, the applicable law expressly prohibited the imposition of liability on service providers for third-party content. In this connection, the applicant company referred to the Directive on electronic commerce, the Estonian Information Society Services Act and the Council of Europe Declaration on freedom of communication on the Internet. The Directive provided for limited and notice-based liability with take-down procedures for illegal content. Service providers were exempted from liability where, upon obtaining actual knowledge of illegal activities, they acted expeditiously to remove or disable access to the information concerned. Such removal or disabling of access had to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level ( Recital 46 of the Preamble to the Directive). The applicant company argued that this law was indisputably formulated with sufficient precision to enable a citizen to regulate his conduct. According to the applicant company, its behaviour had been in full compliance with the applicable law as it had removed the defamatory comments the same day it had been notified by the original plaintiff.", "70. The applicant company further argued that even the existing tort law did not classify disseminators (postal workers, libraries, bookstores and others) as publishers. Thus, it remained entirely unclear how the existing tort law had been applied to a “ novel area related to new technologies ” as held in the Chamber judgment, that is, to an online news portal operator providing a service enabling users to interact with journalists and each other and to contribute valuable ideas to the discussion of matters of public interest. There was no law imposing an obligation on the applicant company to proactively monitor user comments.", "(d) Legitimate aim", "71. The applicant company did not dispute that the interference in question had a legitimate aim.", "(e) Necessary in a democratic society", "72. According to the applicant company, the interference was not necessary in a democratic society. It argued that as a result of the Chamber judgment it had two choices. Firstly, it could employ an army of highly trained moderators to patrol (in real time) each message board (for each news article) to screen any message that could be labelled defamatory (or that could infringe intellectual property rights, inter alia ); at the end of the day, these moderators would, just in case, remove any sensitive comments and all discussions would be moderated so that they were limited to the least controversial issues. Otherwise, it could simply avoid such a massive risk and shut down these fora altogether. Either way, the technological capability to provide ordinary readers with an opportunity to comment freely on daily news and assume responsibility independently for their own comments would be abandoned.", "73. The applicant company argued that the Supreme Court ’ s judgment had had a “ chilling effect ” on freedom of expression and that it had restricted the applicant company ’ s freedom to impart information. It amounted to the establishment of an obligation to censor private individuals.", "74. In support of its argument that the interference was not necessary in a democratic society, the applicant company relied on the following factors.", "75. Firstly, it argued that the comments were reactions from members of the public to an event caused by the Saaremaa Shipping Company and not to the article as such. Furthermore, the article was a balanced and neutral one. It addressed an issue of great importance to the residents of the biggest island of Estonia affecting their everyday lives. The readers ’ negative reactions had not been caused by the article but by the shipping company.", "76. Secondly, the applicant company had taken sufficient measures to prevent or remove defamatory comments; in the present case, the comments in question had been removed on the same day that the applicant company had been notified of them.", "77. Thirdly, the applicant company argued that the actual authors of the comments should bear responsibility for their contents. It disagreed with the Chamber ’ s finding that it was difficult to establish the identity of the authors of the comments and contended that the authors ’ identities could be established in the “ pre-trial taking of evidence ” procedure under Article 244 of the Code of Civil Procedure. Once the names and addresses of the authors were established, a claim against them could be brought without any difficulties.", "78. Fourthly, the applicant company insisted that there was no pressing social need for a strict liability standard for service providers. It argued that there was a European consensus that no service provider should be liable for content of which it was not the author. Accordingly, the margin of appreciation afforded to the Contracting States in this respect was necessarily a narrow one. Furthermore, it considered that the modest sum it had been ordered to pay in compensation for non-pecuniary damage did not justify the interference. It also emphasised that if the applicant company enjoyed limited liability the original plaintiff would not have been left without a remedy – he could have sued the actual authors of the comments. The applicant company objected to the establishment of private censorship and contended that it was sufficient to have a two-pronged system for the protection of the rights of third parties: a notice-and-take-down system and the possibility of bringing a claim against the authors of defamatory comments. There was no convincingly established “ pressing social need ” for the liability of Internet service providers.", "79. The applicant company also emphasised the importance of anonymity for free speech on the Internet; this encouraged the full involvement of all, including marginalised groups, political dissidents and whistle-blowers, and allowed individuals to be safe from reprisals.", "80. Lastly, the applicant company contended that the domestic courts had clearly misinterpreted European Union (EU) law. It submitted that the Chamber judgment had created a collision of obligations and legal uncertainty since adhering to EU law on the issue of liability for host service providers would render the State liable under the Convention, whereas adhering to the test set out in the judgment would not be in conformity with EU law.", "2. The Government", "(a) General remarks", "81. The Government made the following remarks in respect of the scope of the case. Firstly, according to the Court ’ s case-law it was for the domestic courts to decide on the domestically applicable law and interpret it. Furthermore, interpretation of EU law was the task of the CJEU. The domestic courts, in reasoned decisions, had found that the Obligations Act, rather than the Directive on electronic commerce or the Information Society Services Act, was applicable. The Grand Chamber should also proceed from this presumption and the applicant company ’ s allegations regarding the applicability of EU law were inadmissible. Secondly, the Government stressed that there existed a number of different types of Internet portals and the issue of their operators ’ liability could not be generalised. The present case was limited to the activities of the Delfi portal at the material time. In that connection the Government pointed out that Delfi had actively invited readers to comment on the articles it had chosen itself; it had published anonymous comments posted on those articles and in the same section; and the comments could be amended or deleted only by Delfi. The applicant company ’ s liability should be assessed in that specific context.", "82. The Government emphasised that there was no dispute that the comments in question had been defamatory.", "83. The Government noted that, despite the applicant company ’ s allegations to that effect, it had not been forced to disable anonymous comments or to change its business model. On the contrary, Delfi remained the largest Internet portal in Estonia; it was still possible to post anonymous comments on the portal and the number of comments had risen from 190,000 comments a month in 2009 to 300,000 in 2013. According to an article published on 26 September 2013, Delfi deleted 20,000 to 30,000 comments monthly (7 - 10% of all comments). Postimees, the second-largest portal, deleted up to 7% of a total of 120,000 comments. Both portals had five employees who dealt with taking down insulting comments. Since December 2013 Delfi had used a two-tier comments section where registered comments and anonymous comments were shown separately.", "(b) Lawfulness", "84. The Government insisted that the interference with the applicant company ’ s rights had been “ prescribed by law ”. They referred to the domestic legislation and case-law summarised in paragraphs 32 to 36, 38 and 39 of the Chamber judgment, as well as the Court ’ s relevant case-law as summarised in the Chamber judgment. The Government also pointed out that there was no Estonian case-law on the basis of which Delfi – which encouraged the posting of comments on the articles selected and published by it – could have presumed that the owner of an Internet portal as a new media publication was not liable for the damage caused by comments posted on its articles, which formed an integral part of the news and which only Delfi could administer. Further, by the time the domestic judgments had been handed down in Delfi, it was more than clear that Internet media had a wide influence over the public and that, in order to protect the private life of others, liability rules had to apply to new media as well.", "85. The Government reiterated that the applicant company ’ s references to EU law and the Information Society Services Act should be disregarded. The Grand Chamber could only assess whether the effects of the interpretation of the Obligations Act were compatible with Article 10 § 2 of the Convention and could not assess the legislation the domestic courts had found not to be applicable. They also pointed out that the domestic courts had paid sufficient attention to the question whether the applicant company might be regarded as a caching or hosting service provider. However, they had found this not to be the case. In particular, in the event of hosting, the service provider merely provided a data storage service, while the stored data and their insertion, amendment, removal and content remained under the control of the service users. In Delfi ’ s comments section, however, commenters lost control of their comments as soon as they had entered them, and they could not change or delete them. Having regard also to the other aspects of the case – Delfi chose the articles and their titles; Delfi invited readers to comment and set the Rules on posting comments (including that the comments had to be related to the article); the amount of advertising revenue Delfi received increased the more comments were posted; Delfi also selectively monitored the comments – the domestic courts had found that Delfi had not acted only as a technical intermediary service provider and could not be classified either as a cache or as a host. The Government also emphasised that the CJEU had never adjudicated on a case similar to the Delfi case. In any event, even if the CJEU ’ s case-law, such as L ’ Oréal SA and Others (cited above), was of relevance, it could be concluded that the role played by Delfi was an active one and it could not be granted the exemptions from liability provided in the Directive on electronic commerce.", "(c) Legitimate aim", "86. The Government submitted that the interference with the applicant company ’ s rights under Article 10 had the legitimate aim of protecting the honour of others.", "(d) Necessary in a democratic society", "87. As regards the question whether the interference was necessary in a democratic society, the Government emphasised at the outset the importance of the balance between Articles 10 and 8 of the Convention.", "88. The Government referred extensively to the relevant reasoning of the Chamber judgment. In addition, they emphasised the following.", "89. Firstly, as regards the context of the comments, the Government noted that the domestic courts had attached importance to the fact that the selection and publication of the news articles and the publication of readers ’ comments on these articles in the same section had been part of the applicant company ’ s professional activity as a discloser of information. Delfi invited readers to comment on its articles – often giving the articles provocative headlines and showing the number of comments on the main page immediately after the title of an article in bold red, so that commenting on an article would be more enticing – which in turn brought in advertising revenue.", "90. Secondly, in respect of the measures applied by the applicant company, the Government stressed the importance of ensuring the protection of third parties in relation to the Internet, which had become an extensive medium available to the majority of the population and used on a daily basis. The Government added that the applicant company ’ s responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal – only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person ’ s honour were no longer sufficient because the offensive comments had already reached the general public and done the damage. The Government further argued that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason.", "91. Thirdly, as regards the liability of the actual authors, the Government submitted that in civil proceedings – a remedy which was preferable to criminal remedies in defamation cases – investigative measures such as surveillance procedures were not accessible. In respect of the procedure for “ pre-trial taking of evidence ”, the Government argued that this was not a reasonable alternative in the case of anonymous comments for the following two reasons: (a) the relevant Internet Protocol ( IP) addresses could be not always established, for example if the user data or the comment had been deleted or an anonymous proxy had been used; and (b) even if the computers used for posting the comments could be identified, it could still prove impossible to identify the persons who had posted them, for example in cases where a public computer, a Wi-Fi hotspot, a dynamic IP address or a server in a foreign country had been used, or for other technical reasons.", "92. Fourthly, as regards the consequences of the domestic proceedings for the applicant company, the Government noted that Delfi had not needed to change its business model or disallow anonymous comments. In fact, the total number of comments – the majority of which were anonymous – had increased, while Delfi now employed five moderators. The Government also pointed out that the finding of liability was not aimed at obtaining huge or punitive awards of compensation. Indeed, in Delfi ’ s case the compensation it had been obliged to pay for non-pecuniary damage was negligible (EUR 320), and in the subsequent case-law (see paragraph 43 above) the courts had held that finding a violation or deleting a comment could be a sufficient remedy. The Government concluded that the applicant company ’ s civil liability had not had a “ chilling effect ” on the freedom of expression, but was justified and proportionate.", "93. Lastly, referring to the legislation and practice of several European countries, the Government contended that there was no European consensus on or trend towards excluding the liability of an Internet portal owner which acted as a content service provider and the discloser of anonymous comments on its own articles.", "C. The third-party interveners ’ submissions", "1. The Helsinki Foundation for Human Rights", "94. The Helsinki Foundation for Human Rights in Warsaw emphasised the differences between the Internet and traditional media. It noted that online services like Delfi acted simultaneously in two roles: as content providers with regard to their own news, and as host providers with regard to third-party comments. It submitted that moderation of user-generated content or the power to remove access to it should not be regarded as having effective editorial control. Intermediary service providers should not be treated as traditional media and should not be subject to the same liability regime.", "95. The Helsinki Foundation argued that authors should be accountable for their defamatory comments and the State should provide a regulatory framework making it possible to identify and prosecute online offenders. At the same time, it also contended that the possibility of publishing anonymously on the Internet should be regarded as a value.", "2. Article 19", "96. Article 19 argued that one of the most innovative features of the Internet was the ease with which it allowed any person to express his or her views to the entire world without seeking the prior approval of publishers. Comment platforms enabled and promoted public debate in its purest form and this had very little to do with the provision of news. As a matter of fact and form, comments sections on news websites were better understood as newspapers appropriating the private discussion model that was native to the Internet rather than the other way round. Article 19 argued that making websites responsible for comments made by users would impose an unacceptable burden on websites.", "97. Article 19 contended that the Directive on electronic commerce was meant to shield websites from liability for their users ’ comments, regardless of their own content. Article 19 insisted that, while the normal liability rules should continue to apply to online news sites for the articles they published, they should be regarded as hosts – rather than publishers – for the purposes of the comments section on their website. As hosts, online news sites should in principle be immune from liability for third-party content in circumstances where they had not been involved in directly modifying the content in issue. They should not be held liable when they took all reasonable steps to remove content upon being notified, and they should not automatically be held liable simply because they decided not to remove a comment reported to them.", "3. Access", "98. According to Access, anonymity and pseudonymity supported the fundamental rights of privacy and freedom of expression. A regulatory prohibition on anonymous use of the Internet would constitute an interference with the rights to privacy and freedom of expression protected under Articles 8 and 10 of the Convention, and blanket restrictions on anonymous and pseudonymous expression would impair the very essence of these rights. Access referred to the long-standing case-law of several countries protecting the right to anonymous communication, both on and offline.", "99. Furthermore, Access pointed out that services designed to provide enhanced confidentiality and anonymity while using the Internet had become more popular in the wake of revelations of mass surveillance online. It further argued that restricting Internet users to identified expression would harm the Internet economy, and referred to research which had concluded that the most important contributors online were those using pseudonyms.", "100. As regards real-name policy, evidence from China showed that such a measure had caused a dramatic drop in the number of comments posted. Experience in South Korea had demonstrated that real-name policy failed to improve meaningfully comments, whereas it was discriminatory against domestic Internet companies, as the users had sought alternative, international platforms that still allowed anonymous and pseudonymous comments.", "4. Media Legal Defence Initiative", "101. Media Legal Defence Initiative (MLDI) made its submissions on behalf of twenty-eight non-governmental and media organisations and companies. It noted that the vast majority of online media outlets allowed reader comments. Through the comments facility, readers could debate the news amongst themselves as well as with journalists. This transformed the media from a one-way flow of communication into a participatory form of speech which recognised the voice of the reader and allowed different points of view to be aired.", "102. MLDI noted that the boundaries between access and content were now increasingly blurred and “ intermediaries ” included enhanced search services, online marketplaces, web 2.0 applications and social networking sites. From the users ’ perspective, they all facilitated access to and use of content and were crucial to the realisation of the right to freedom of expression.", "103. MLDI contended that it was the States ’ task to ensure a regulatory framework that protected and promoted freedom of expression whilst also guarding other rights and interests. It provided a detailed overview of the regulatory framework for intermediary liability in the United States of America and in the European Union. It noted that approaches in these jurisdictions were distinct, but nevertheless similar in that it was acknowledged that some level of protection for intermediaries was vital and that there was no requirement that intermediaries should monitor user content. It also noted that in some member States notice-and-take-down procedures had resulted in excessive liability on intermediaries and the taking down of legitimate content.", "104. MLDI also elaborated on the emerging good practices in the regulation of user-generated content by online media. It pointed out that the majority of publications in North America and Europe did not screen or monitor comments before they were posted. They did, however, engage in some kind of post-publication moderation. Many online media outlets also ran filtering software and had mechanisms in place to block users who consistently broke the rules. The majority of online media, including leading European news outlets, required user registration but users were not required to disclose their real names.", "5. EDiMA, CCIA Europe and EuroISPA", "105. The European Digital Media Association (EDiMA), the Computer & Communications Industry Association (CCIA Europe) and EuroISPA, a pan-European association of European Internet Services Providers Associations, made joint submissions as third parties.", "106. The third-party interveners argued that there was an established balance struck to date in legislation, international agreements and recommendations according to which, firstly, host service providers were exempt from liability for content in the absence of “ actual knowledge ” and, secondly, States were prohibited from requiring host providers to carry out general monitoring of content.", "107. They noted that, while some information available online came from traditional publishing sources such as newspapers, and was rightly regulated by the law applicable to publishers, a large amount of online content came instead from individual speakers who could state their views unmediated by traditional editorial institutions. Comment facilities allowed for a right of reply and were thus fundamentally different from traditional publications, where no such right existed.", "108. The third-party interveners argued that the technology and operating processes for an online news discussion forum like Delfi were technologically indistinguishable from hosting services such as social media/networking platforms, blogs/microblogs and others. Content composed and uploaded by users was automatically made publicly visible without human intervention. For many hosts considerations of scale made proactive human review of all user content effectively impossible. For small websites and start-ups, content control was likely to be particularly challenging and could be so costly as to be prohibitive.", "109. The third-party interveners argued that established law in the European Union and other countries envisaged the notice-and-take-down system as a legal and practical framework for Internet content hosting. This balance of responsibilities between users and hosts allowed platforms to identify and remove defamatory or other unlawful speech, whilst at the same time enabling robust discussion on controversial topics of public debate; it made the operation of speech-hosting platforms practicable on a large scale.", "D. The Court ’ s assessment", "1. Preliminary remarks and the scope of the Court ’ s assessment", "110. The Court notes at the outset that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression. That is undisputed and has been recognised by the Court on previous occasions (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012, and Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, nos. 3002/03 and 23676/03, § 27, ECHR 2009 ). However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. Bearing in mind the need to protect the values underlying the Convention, and considering that the rights under Articles 10 and 8 of the Convention deserve equal respect, a balance must be struck that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that the possibility of imposing liability for defamatory or other types of unlawful speech must, in principle, be retained, constituting an effective remedy for violations of personality rights.", "111. On this basis, and in particular considering that this is the first case in which the Court has been called upon to examine a complaint of this type in an evolving field of technological innovation, the Court considers it necessary to delineate the scope of its inquiry in the light of the facts of the present case.", "112. Firstly, the Court observes that the Supreme Court recognised (see paragraph 14 of its judgment of 10 June 2009, set out in paragraph 31 above) that “ [p] ublishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs. ”", "113. The Court sees no reason to call into question the above distinction made by the Supreme Court. On the contrary, the starting-point of the Supreme Court ’ s reflections, that is, the recognition of differences between a portal operator and a traditional publisher, is in line with the international instruments in this field, which manifest a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audio - visual media, on the one hand and Internet-based media operations, on the other. In the recent Recommendation of the Committee of Ministers to the member States of the Council of Europe on a new notion of media, this is termed a “ differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe ” (see paragraph 7 of the Appendix to Recommendation CM/Rec(2011)7, quoted in paragraph 46 above). Therefore, the Court considers that because of the particular nature of the Internet, the “ duties and responsibilities ” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher as regards third-party content.", "114. Secondly, the Court observes that the Supreme Court of Estonia found that the “ legal assessment by the courts of the twenty comments of a derogatory nature [ was ] substantiated. The courts [had] correctly found that those comments [were] defamatory since they [were] of a vulgar nature, degrade[d] human dignity and contain[ ed ] threats ” (see paragraph 15 of the judgment, set out in paragraph 31 above). Further, in paragraph 16 of its judgment, the Supreme Court reiterated that the comments degraded “ human dignity ” and were “ clearly unlawful ”. The Court notes that this characterisation and analysis of the unlawful nature of the comments in question (see paragraph 18 above) is obviously based on the fact that the majority of the comments are, viewed on their face, tantamount to an incitement to hatred or to violence against L.", "115. Consequently, the Court considers that the case concerns the “ duties and responsibilities ” of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engage in clearly unlawful speech, which infringes the personality rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them.", "116. Accordingly, the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topic without the discussion being channelled by any input from the forum ’ s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or blog as a hobby.", "117. Furthermore, the Court notes that the applicant company ’ s news portal was one of the biggest Internet media publications in the country; it had a wide readership and there was a known public concern regarding the controversial nature of the comments it attracted (see paragraph 15 above). Moreover, as outlined above, the impugned comments in the present case, as assessed by the Supreme Court, mainly constituted hate speech and speech that directly advocated acts of violence. Thus, the establishment of their unlawful nature did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful. It is against this background that the Court will proceed to examine the applicant company ’ s complaint.", "2. Existence of an interference", "118. The Court notes that it was not in dispute between the parties that the applicant company ’ s freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts ’ decisions. The Court sees no reason to hold otherwise.", "119. Such an interference with the applicant company ’ s right to freedom of expression must be “ prescribed by law ”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “ necessary in a democratic society ”.", "3. Lawfulness", "120. The Court reiterates that the expression “ prescribed by law ” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001 ‑ VI; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A; and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II).", "121. One of the requirements flowing from the expression “ prescribed by law ” is foreseeability. Thus, a norm cannot be regarded as a “ law ” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ IV, and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 141 ).", "122. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed ( ibid., § 142). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, cited above, § 41, with further references to Cantoni v. France, 15 November 1996, § 35, Reports 1996 ‑ V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004 ‑ VI).", "123. In the present case the parties ’ opinions differed as to whether the interference with the applicant company ’ s freedom of expression was “ prescribed by law ”. The applicant company argued that there was no domestic law according to which an intermediary was to be taken as a professional publisher of comments posted on its website by third parties regardless of whether it was aware of their specific content. On the contrary, the applicant company relied on the domestic and European legislation on Internet service providers and argued that it expressly prohibited the imposition of liability on service providers for third-party content.", "124. The Government referred to the relevant provisions of the civil law and domestic case-law to the effect that media publishers were liable for their publications along with the authors. They added that there was no case-law on the basis of which the applicant company could have presumed that the owner of an Internet news portal as a new media publication was not liable for the comments posted on its articles. In their view the Court should proceed from the facts as established and the law as applied and interpreted by the domestic courts and not take account of the applicant company ’ s references to EU law. In any event, the EU law referred to by the applicant company actually supported the domestic courts ’ interpretations and conclusions.", "125. The Court observes that the difference in the parties ’ opinions as regards the law to be applied stems from their diverging views on the issue of how the applicant company is to be classified. According to the applicant company, it should be classified as an intermediary as regards the third-party comments, whereas the Government argued that the applicant company was to be seen as a media publisher, including with regard to such comments.", "126. The Court observes (see paragraphs 112 - 13 above) that the Supreme Court recognised the differences between the roles of a publisher of printed media, on the one hand, and an Internet portal operator engaged in media publications for an economic purpose, on the other. However, the Supreme Court found that because of their “ economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator [were] publishers/disclosers ” for the purposes of section 1047 of the Obligations Act (see paragraph 14 of the judgment, set out in paragraph 31 above).", "127. The Court considers that, in substance, the applicant company argues that the domestic courts erred in applying the general provisions of the Obligations Act to the facts of the case as they should have relied upon the domestic and European legislation on Internet service providers. Like the Chamber, the Grand Chamber reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Centro Europa 7 S.r.l. and Di Stefano, cited above, § 140, and Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999 ‑ III ). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I). Thus, the Court confines itself to examining whether the Supreme Court ’ s application of the general provisions of the Obligations Act to the applicant company ’ s situation was foreseeable for the purposes of Article 10 § 2 of the Convention.", "128. Pursuant to the relevant provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 33 ‑ 38 above), as interpreted and applied by the domestic courts, the applicant company was considered a publisher and deemed liable for the publication of the clearly unlawful comments. The domestic courts chose to apply these norms, having found that the special regulation contained in the Information Society Services Act transposing the Directive on electronic commerce into Estonian law did not apply to the present case since the latter related to activities of a merely technical, automatic and passive nature, unlike the applicant company ’ s activities, and that the objective pursued by the applicant company was not merely the provision of an intermediary service (see paragraph 13 of the Supreme Court ’ s judgment, set out in paragraph 31 above). In this particular context the Court takes into account the fact that some countries have recognised that the importance and the complexity of the subject matter, involving the need to ensure proper balancing of different interests and fundamental rights, call for the enactment of specific regulations for situations such as that pertaining in the present case (see paragraph 58 above). Such action is in line with the “ differentiated and graduated approach ” to the regulation of new media recommended by the Council of Europe (see paragraph 46 above) and has found support in the Court ’ s case-law (see, mutatis mutandis, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 63-64, ECHR 2011 ). However, although various legislative approaches are possible in legislation to take account of the nature of new media, the Court is satisfied on the facts of this case that the provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act, along with the relevant case-law, made it foreseeable that a media publisher running an Internet news portal for an economic purpose could, in principle, be held liable under domestic law for the uploading of clearly unlawful comments, of the type in issue in the present case, on its news portal.", "129. The Court accordingly finds that, as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delfi news portal is one of the largest in Estonia. Public concern had already been expressed before the publication of the comments in the present case and the Minister of Justice had noted that victims of insults could bring a suit against Delfi and claim damages (see paragraph 15 above). Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “ prescribed by law ” within the meaning of the second paragraph of Article 10 of the Convention.", "4. Legitimate aim", "130. The parties before the Grand Chamber did not dispute that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. The Court sees no reason to hold otherwise.", "5. Necessary in a democratic society", "(a) General principles", "131. The fundamental principles concerning the question whether an interference with freedom of expression is “ necessary in a democratic society ” are well established in the Court ’ s case-law (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013) and have been summarised as follows.", "“ ( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... ”", "132. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, cited above, § 59). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998 ‑ IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I).", "133. Moreover, the Court has previously held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ). At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63).", "134. In considering the “ duties and responsibilities ” of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audio - visual media often have a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, no. 15404/89, Commission decision of 16 April 1991, Decisions and Reports 70, p. 262). The methods of objective and balanced reporting may vary considerably, depending among other things on the media in question (see Jersild, cited above, § 31 ).", "135. The Court has held that the “ punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so ” (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, and Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013 ).", "136. Moreover, the Court has held that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports 1998 ‑ VII; Garaudy v. France (dec.), no. 65831/01, ECHR 2003 ‑ IX; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004 ‑ XI; Witzsch v. Germany (dec.), no. 7485/03, 13 December 2005; and Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007).", "137. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).", "138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “ protection of the reputation or rights of others ”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10, and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG, cited above, § 84 ).", "139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who was the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to Hachette Filipacchi Associés ( ICI PARIS ), no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover, cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011 ). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013 ).", "(b) Application of the above principles to the present case", "(i) Elements in the assessment of proportionality", "140. The Court notes that it is not disputed that the comments posted by readers in reaction to the news article published in the comments section on the applicant company ’ s Internet news portal were of a clearly unlawful nature. Indeed, the applicant company removed the comments once it was notified by the injured party, and described them as “ infringing ” and “ illicit ” before the Chamber (see paragraph 84 of the Chamber judgment). Moreover, the Court is of the view that the majority of the impugned comments amounted to hate speech or incitements to violence and as such did not enjoy the protection of Article 10 (see paragraph 136 above). Thus, the freedom of expression of the authors of the comments is not in issue in the present case. Rather, the question before the Court is whether the domestic courts ’ decisions, holding the applicant company liable for these comments posted by third parties, were in breach of its freedom to impart information as guaranteed by Article 10 of the Convention.", "141. The Court observes that, although the applicant company immediately removed the comments in question from its website upon notification by L. ’ s lawyers (see paragraphs 18 - 19 above), the Supreme Court held the applicant company liable on the basis of the Obligations Act as it should have prevented the publication of comments with clearly unlawful contents. It then referred to section 1047(3) of the Obligations Act, according to which disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the “ gravity of the potential violation ”. The Supreme Court thus held that, after the disclosure, the applicant company had failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. The inactivity of the applicant company was thus deemed unlawful as it had not “ proved the absence of culpability ” under section 1050(1) of the Obligations Act (see paragraph 16 of the Supreme Court judgment, set out in paragraph 31 above).", "142. In the light of the Supreme Court ’ s reasoning, the Court must, according to its consistent case-law, examine whether the domestic courts ’ finding of liability on the part of the applicant company was based on relevant and sufficient grounds in the particular circumstances of the case (see paragraph 131 above). The Court observes that, in order to resolve the question whether the domestic courts ’ decisions holding the applicant company liable for the comments posted by third parties were in breach of its freedom of expression, the Chamber identified the following aspects as relevant for its analysis: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and the consequences of the domestic proceedings for the applicant company (see paragraphs 85 et seq. of the Chamber judgment).", "143. The Court agrees that these aspects are relevant for the concrete assessment of the proportionality of the interference in issue within the scope of the Court ’ s examination of the present case (see paragraphs 112 - 17 above ).", "(ii) Context of the comments", "144. As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments regarding unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comments section, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company ’ s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the author of the comments did not mean that it had no control over the comments section (see paragraph 13 of the judgment, set out in paragraph 31 above).", "145. The Court also notes in this regard that the Rules on posting comments on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors ’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company ’ s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court ’ s reasoning, the Court agrees with the Chamber ’ s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal.", "146. In sum, the Court considers that it was sufficiently established by the Supreme Court that the applicant company ’ s involvement in making public the comments on its news articles on the Delfi news portal went beyond that of a passive, purely technical service provider. The Court therefore finds that the Supreme Court based its reasoning on this issue on grounds that were relevant for the purposes of Article 10 of the Convention.", "(iii) Liability of the authors of the comments", "147. In connection with the question whether the liability of the actual authors of the comments could serve as a sensible alternative to the liability of the Internet news portal in a case like the present one, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of ideas and information in an important manner, including, notably, on the Internet. At the same time, the Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of the information once disclosed, which may considerably aggravate the effects of unlawful speech on the Internet compared to traditional media. It also refers in this connection to a recent judgment of the Court of Justice of the European Union in Google Spain SL and Google Inc. (cited above), in which that court, albeit in a different context, dealt with the problem of the availability on the Internet of information seriously interfering with a person ’ s private life over an extended period of time, and found that the individual ’ s fundamental rights, as a rule, overrode the economic interests of the operator of a search engine and the interests of other Internet users (see paragraph 56 above).", "148. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification – ranging from limited verification (for example, through activation of an account via an e-mail address or a social network account) to secure authentication, be it by the use of national electronic identity cards or online banking authentication data allowing rather more secure identification of the user. A service provider may also allow an extensive degree of anonymity for its users, in which case the users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators.", "149. Thus, in the judgment in K.U. v. Finland, concerning an offence of “ malicious misrepresentation ” of a sexual nature against a minor, the Court found that “ [a] lthough freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others ” (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008). The Court in that case rejected the Government ’ s argument that the applicant had had the possibility of obtaining damages from the service provider, finding that this was not sufficient in the circumstances of the case. It held that there had to be a remedy enabling the actual offender to be identified and brought to justice, whereas at the relevant time the regulatory framework of the respondent State had not provided for the possibility of ordering the Internet service provider to divulge the information required for that purpose (ibid., §§ 47 and 49). Although K.U. v. Finland concerned a breach classified as a criminal offence under the domestic law and involved a more sweeping intrusion into the victim ’ s private life than the present case, it is evident from the Court ’ s reasoning that anonymity on the Internet, while an important factor, must be balanced against other rights and interests.", "150. As regards the establishment of the identity of the authors of the comments in civil proceedings, the Court notes that the parties ’ positions differed as to its feasibility. On the basis of the information provided by the parties, the Court observes that the Estonian courts, in the “ pre-trial taking of evidence ” procedure under Articles 244 et seq. of the Code of Civil Procedure (see paragraph 40 above), have granted requests by defamed persons for the disclosure by online newspapers or news portals of the IP addresses of authors who had posted allegedly defamatory comments and for the disclosure by Internet access providers of the names and addresses of the subscribers to whom the IP addresses in question had been assigned. The examples provided by the Government show mixed results: in some cases it had proved possible to establish the computer from which the comments had been made, while in other cases, for various technical reasons, this had proved impossible.", "151. According to the Supreme Court ’ s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to bring a claim effectively against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the judgment in Krone Verlag GmbH & Co. KG v. Austria (no. 4) ( no. 72331/01, § 32, 9 November 2006) in which it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company ’ s right to freedom of expression.", "(iv) Measures taken by the applicant company", "152. The Court notes that the applicant company highlighted the number of comments on each article on its website, and therefore the articles with the most lively exchanges must have been easily identifiable for the editors of the news portal. The article in issue in the present case attracted 185 comments, apparently well above average. The comments in question were removed by the applicant company some six weeks after they were uploaded on the website, upon notification by the injured person ’ s lawyers to the applicant company (see paragraphs 17 - 19 above).", "153. The Court observes that the Supreme Court stated in its judgment that “ [o]n account of the obligation arising from law to avoid causing harm, the [applicant company] should have prevented the publication of comments with clearly unlawful contents ”. However, it also held that “ [a]fter the disclosure, the [applicant company had] failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative ” (see paragraph 16 of the judgment, set out in paragraph 31 above). Therefore, the Supreme Court did not explicitly determine whether the applicant company was under an obligation to prevent the uploading of the comments to the website or whether it would have sufficed under domestic law for the applicant company to have removed the offending comments without delay after publication to escape liability under the Obligations Act. The Court considers that, when assessing the grounds upon which the Supreme Court relied in its judgment entailing an interference with the applicant company ’ s Convention rights, there is nothing to suggest that the national court intended to restrict its rights to a greater extent than that required to achieve the aim pursued. On this basis, and having regard to the freedom to impart information as enshrined in Article 10, the Court will thus proceed on the assumption that the Supreme Court ’ s judgment must be understood to mean that had the applicant company removed the comments without delay after publication, this would have sufficed for it to escape liability under domestic law. Consequently, and taking account of the above findings (see paragraph 145 ) to the effect that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal, the Court does not consider that the imposition on the applicant company of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, and were thus clearly unlawful on their face, amounted, in principle, to a disproportionate interference with its freedom of expression.", "154. The pertinent issue in the present case is whether the national court ’ s findings that liability was justified, as the applicant company had not removed the comments without delay after publication, were based on relevant and sufficient grounds. With this in mind, account must first be taken of whether the applicant company had put in place mechanisms that were capable of filtering comments amounting to hate speech or speech entailing an incitement to violence.", "155. The Court notes that the applicant company took certain measures in this regard. There was a disclaimer on the Delfi news portal stating that the writers of the comments – and not the applicant company – were accountable for them, and that the posting of comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities, was prohibited. Furthermore, the portal had an automatic system of deletion of comments based on stems of certain vulgar words and it had a notice-and-take-down system in place, whereby anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose to bring it to the attention of the portal administrators. In addition, on some occasions the administrators removed inappropriate comments on their own initiative.", "156. Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention (see paragraph 136 above). The Court notes that as a consequence of this failure of the filtering mechanism these clearly unlawful comments remained online for six weeks (see paragraphs 18 -19 above).", "157. The Court observes in this connection that on some occasions the portal administrators did remove inappropriate comments on their own initiative and that, apparently some time after the events of the present case, the applicant company set up a dedicated team of moderators. Having regard to the fact that there are ample opportunities for anyone to make his or her voice heard on the Internet, the Court considers that a large news portal ’ s obligation to take effective measures to limit the dissemination of hate speech and speech inciting violence – the issue in the present case – can by no means be equated to “ private censorship ”. While acknowledging the “ important role ” played by the Internet “ in enhancing the public ’ s access to news and facilitating the dissemination of information in general ” ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ), the Court reiterates that it is also mindful of the risk of harm posed by content and communications on the Internet (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63; see also Mosley, cited above, § 130).", "158. Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.", "159. Lastly, the Court observes that the applicant company has argued (see paragraph 78 above) that the Court should have due regard to the notice-and-take-down system that it had introduced. If accompanied by effective procedures allowing for rapid response, this system can in the Court ’ s view function in many cases as an appropriate tool for balancing the rights and interests of all those involved. However, in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court ’ s case-law (see paragraph 136 above), the Court considers, as stated above (see paragraph 153 ), that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties.", "(v) Consequences for the applicant company", "160. Finally, turning to the question of consequences of the domestic proceedings for the applicant company, the Court notes that it was obliged to pay the injured person the equivalent of EUR 320 in compensation for non-pecuniary damage. It agrees with the finding of the Chamber that this sum, also taking into account the fact that the applicant company was a professional operator of one of the largest Internet news portals in Estonia, can by no means be considered disproportionate to the breach established by the domestic courts (see paragraph 93 of the Chamber judgment). The Court notes in this connection that it has also had regard to the post- Delfi domestic case-law on the liability of the operators of Internet news portals (see paragraph 43 above). It observes that in these cases the lower courts have followed the Supreme Court ’ s judgment in Delfi but no awards have been made for non-pecuniary damage. In other words, the tangible result for the operators in post- Delfi cases has been that they have taken down the offending comments but have not been ordered to pay compensation for non-pecuniary damage.", "161. The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia ’ s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company ’ s freedom of expression was disproportionate on that account either.", "(vi) Conclusion", "162. Based on the concrete assessment of the above aspects, taking into account the reasoning of the Supreme Court in the present case, in particular the extreme nature of the comments in question, the fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction imposed on the applicant company, the Court finds that the domestic courts ’ imposition of liability on the applicant company was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company ’ s right to freedom of expression.", "Accordingly, there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant company is a public limited liability company ( aktsiaselts ), registered in Estonia.", "A. Background to the case", "11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia, and also operates in Latvia and Lithuania.", "12. At the material time, at the end of the body of the news articles there were the words “ add your comment ” and fields for comments, the commenter ’ s name and his or her e-mail address (optional). Below these fields there were buttons labelled “ publish the comment ” and “ read comments ”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “ read comments ” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers ’ comments daily, the majority posted under pseudonyms.", "13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (Estonian for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, comments that included certain stems of obscene words were automatically deleted. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately.", "14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi ’ s website there were Rules on posting comments which included the following.", "“ The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit the comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ...", "Delfi prohibits comments whose content does not comply with good practice.", "These are comments that", "– contain threats;", "– contain insults;", "– incite hostility and violence;", "– incite illegal activities ...", "– contain off-topic links, spam or advertisements;", "– are without substance and/or off topic;", "– contain obscene expressions and vulgarities ...", "Delfi reserves the right to remove such comments and restrict their authors ’ access to the writing of comments ... ”", "The functioning of the notice-and-take-down system was also explained in the Rules on posting comments.", "15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about the incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure freedom of expression as well as the protection of everyone ’ s honour and good name, including sections 1043 and 1046 of the Obligations Act ( Võlaõigusseadus ).", "B. Article and comments published on the Internet news portal", "16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “ SLK Destroyed Planned Ice Road ”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “ SLK ” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. At the material time, L. was a member of the supervisory board of SLK and the company ’ s sole or majority shareholder.", "17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed at L.", "18. On 9 March 2006 L. ’ s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments.", "“ 1. ( 1) there are currents in [V]äinameri", "(2) open water is closer to the places you referred to, and the ice is thinner.", "Proposal – let ’ s do the same as in 1905, let ’ s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag", "2. bloody shitheads...", "they ’re loaded anyway thanks to that monopoly and State subsidies and have now started to worry that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!", "3. good that [La. ’ s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!", "4. [ little L.] go and drown yourself", "5. aha ... [I] hardly believe that that happened by accident... assholes fck", "6. rascal !!! [ in Russian]", "7. What are you whining for, knock this bastard down once and for all[ .] In future the other ones ... will know what they risk, even they will only have one little life.", "8. ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn ’ t he.", "9. “ a good man lives a long time, a shitty man a day or two ”", "10. If there was an ice road, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it ’ s your fault", "11. and can ’ t anyone stand up to these shits?", "12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.", "13. wonder whether [L.] won ’ t be knocked down in Saaremaa? screwing one ’ s own folk like that.", "14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this.", "Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the State is powerless towards them – it is really them who govern the State), because they only live for today. Tomorrow, the flood.", "15. this [V.] will one day get hit with a cake by me.", "damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way", "16. bastards !!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!", "17. Estonian State, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram ’ s Michaelmas. [1] Actually feel sorry for [L.] – he’s a human, after all ... :D :D :D", "18. ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :)", "19. fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he ’ s acting like a pig from year to year", "20. you can ’ t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the State and [L.] do not care about the people ’ s opinion) ... just for fun, with no greed for money – I pee into [L. ’ s] ear and then I also shit onto his head. :) ”", "19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company.", "20. On 23 March 2006 the applicant company responded to the request from L. ’ s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages.", "C. Civil proceedings against the applicant company", "21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company.", "22. At the hearing of 28 May 2007, the representatives of the applicant company submitted, inter alia, that in cases like that concerning the “ Bronze Night ” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, on its own initiative.", "23. By a judgment of 25 June 2007, L. ’ s claim was dismissed. The County Court found that the applicant company ’ s liability was excluded under the Information Society Services Act ( Infoühiskonna teenuse seadus ), which was based on Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ( Directive on electronic commerce ). The court considered that the comments section on the applicant company ’ s news portal was to be distinguished from its journalistic section. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them.", "24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company ’ s liability was excluded under the Information Society Services Act. The County Court ’ s judgment was quashed and the case was referred back to the first-instance court for fresh consideration.", "25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company.", "26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal ’ s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had indicated on its website that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments.", "27. The County Court found that the news article itself published on the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory, and impaired L. ’ s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L. ’ s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage.", "28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court ’ s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims.", "29. The Court of Appeal rejected the applicant company ’ s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to post comments. Thus, the applicant company was a provider of content services rather than of technical services.", "30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal ’ s judgment in substance, but partly modified its reasoning.", "31. The Supreme Court held as follows.", "“ 10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal ’ s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure.", "11. The parties do not dispute the following circumstances:", "(a) on 24 January 2006 the defendant ’ s Internet portal ‘ Delfi ’ published an article entitled ‘ SLK Destroyed Planned Ice Road ’;", "(b) the defendant provided visitors to the Internet portal with the opportunity to comment on articles;", "(c) of the comments published [ avaldatud [2] ] on the aforementioned article, twenty contain content which is derogatory towards the plaintiff [L.];", "(d) the defendant removed the derogatory comments after the plaintiff ’ s letter of 9 March 2006.", "12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the content of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful content.", "13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act].", "According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to this provision, ‘ information society services ’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service.", "Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: ( a ) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; ( b ) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider ’ s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the content of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information.", "Since the Information Society Services Act is based on Directive 200 0 /31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by Recital 42 of the preamble to the Directive, according to which the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘ content services ’ who have control over the content of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive.", "The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments [ hinnangud ] and opinions (comments). In the comments section, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant ’ s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the author of the comments does not mean that the defendant has no control over the comments section. The defendant sets out the rules for the comments section and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant ’ s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not lead to the conclusion that the publishing of comments is not under the defendant ’ s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comments section, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case.", "14. It is not disputed that the defendant is the publisher of an article entitled ‘ SLK Destroyed Planned Ice Road ’, published on the Delfi Internet portal on 24 January 2006. The County Court also found that the defendant must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the authors of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the authors of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant [Delfi].", "The Chamber has explained the definitions of “ disclosure ” and “ discloser ” in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [ avaldamine ] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [ avaldamine ] of information in the media, the discloser/publisher [ avaldaja ] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ ajakirjanduslik tegevus ]. At the same time, because of the nature of Internet media [ internetiajakirjandus ], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [ trükiajakirjanduse väljaanne ]. While the publisher [ ( väljaandja ) of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [ väljaandja ] of printed media and an Internet portal operator are publishers/disclosers [ avaldajad ] as entrepreneurs.", "In cases concerning a value judgment [ väärtushinnang ] that prejudices and denigrates a person ’ s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of the Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [ hinnangud ] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public).", "15. In reply to the allegations in the defendant ’ s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following.", "The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone ’ s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person ’ s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person ’ s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person ’ s honour and good name.", "In the interests of the protection of a person ’ s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff ’ s honour was not justified and was therefore unlawful; as there was no discussion of the [news] topic in the comments, the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Obligations Act is interpreted in conformity with the Constitution, injuring a person ’ s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats.", "The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the authors of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1 )( 4) of the Obligations Act).", "16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant ’ s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless.", "On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful content. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person ’ s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant ’ s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [ süü ] (section 1050(1) of the Obligations Act). ”", "D. Subsequent developments", "32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the Rules on posting comments. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the Rules on posting comments was monitored as well. According to the information published, the number of comments posted by Delfi ’ s readers in August 2009 had been 190,000. Delfi ’ s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The percentage of defamatory comments had been less than 0.5% of the total number of comments." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "33. The Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides as follows.", "Article 17", "“ No one ’ s honour or good name shall be defamed. ”", "Article 19", "“ 1. Everyone has the right to free self-realisation.", "2. Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. ”", "Article 45", "“ 1. Everyone has the right freely to disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for State and local government public servants, to protect a State or business secret or information received in confidence which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice.", "2. There is to be no censorship. ”", "34. Section 138 of the Civil Code (General Principles) Act ( Tsiviilseadustiku üldosa seadus ) provides that rights are to be exercised and obligations performed in good faith. A right must not be exercised in an unlawful manner or with the aim of causing damage to another person.", "35. Subsection 2 of section 134 of the Obligations Act ( Võlaõigusseadus ) provides:", "“ In the case of an obligation to compensate for damage arising from ... a breach of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the breach, in particular by physical or emotional distress. ”", "36. Section 1043 of the Obligations Act provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) must compensate for the damage if the tortfeasor is culpable ( süüdi ) of causing the damage or is liable for causing the damage pursuant to the law.", "37. Section 1045 of the Obligations Act provides that the causing of damage is unlawful if, inter alia, it results from a breach of a personality right of the victim.", "38. The Obligations Act further provides.", "Section 1046 – Unlawfulness of damage to personality rights", "“ (1) Injuring a person ’ s honour, inter alia, by passing an undue value judgment, unjustified use of a person ’ s name or image, or breaching the inviolability of a person ’ s private life or another personality right, is unlawful unless otherwise provided by law. In establishing such unlawfulness, the type of the breach, the reason and motive for the breach and the gravity of the breach relative to the aim pursued thereby shall be taken into consideration.", "(2) The breach of a personality right is not unlawful if the breach is justified in view of other legal rights protected by law and the rights of third parties or public interests. In such cases, unlawfulness shall be established on the basis of a comparative assessment of the different legal rights and interests protected by law. ”", "Section 1047 – Unlawfulness of disclosure of incorrect information", "“ (1) A breach of personality rights or interference with the economic or professional activities of a person by way of disclosure [ avaldamine ] of incorrect information, or by way of incomplete or misleading disclosure of information concerning the person or the person ’ s activities, is unlawful unless the person who discloses such information proves that, at the time of such disclosure, he or she was not aware and was not required to be aware that such information was incorrect or incomplete.", "(2) Disclosure of defamatory matters concerning a person, or matters which may adversely affect a person ’ s economic situation, is deemed to be unlawful unless the person who discloses such matters proves that they are true.", "(3) Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential breach.", "(4) In the event of disclosure of incorrect information, the victim may demand that the person who has disclosed such information refute the information or publish a correction at his or her own expense, regardless of whether the disclosure of the information was unlawful or not. ”", "Section 1050 – Culpability [ süü ] as basis for liability", "“ (1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable [ süüdi ] of causing the damage.", "(2) The situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration in the assessment of the culpability [ süü ] of the person for the purposes of this Chapter.", "(3) If several persons are liable for compensation for damage and, pursuant to law, one or more of them are liable for compensation for unlawfully caused damage regardless of whether or not they are culpable, the wrongfulness of the behaviour and the form of the culpability of the persons liable for compensation for the damage shall be taken into consideration in apportioning among them the obligation to compensate for the damage. ”", "Section 1055 – Prohibition on damaging actions", "“ (1) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand the cessation of the behaviour causing the damage or of the threats of such behaviour. In the event of bodily injury, damage to health or a breach of the inviolability of personal life or of any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited from approaching others (restraining order), that the use of housing or communications be regulated, or that other similar measures be applied.", "(2) The right to demand the cessation of behaviour causing damage as specified in subsection (1) of this section shall not apply if it is reasonable to expect that such behaviour can be tolerated in conditions of human coexistence or in view of a significant public interest. In such cases, the victim shall have the right to make a claim for compensation for damage caused unlawfully.", "... ”", "39. The Information Society Services Act ( Infoühiskonna teenuse seadus ) provides as follows.", "Section 8 – Restricted liability in the case of mere transmission of information and provision of access to a public data communications network", "“ (1) Where a service is provided that consists of the mere transmission in a public data communication network of information provided by a recipient of the service, or the provision of access to a public data communication network, the service provider shall not be liable for the information transmitted, on condition that the provider:", "1. does not initiate the transmission;", "2. does not select the receiver of the transmission; and", "3. does not select or modify the information contained in the transmission.", "(2) The acts of transmission and of provision of access within the meaning of subsection 1 of this section include the automatic, intermediate and transient storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission in the public data communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. ”", "Section 9 – Restricted liability in the case of temporary storage of information in cache memory", "“ (1) Where a service is provided that consists of the transmission in a public data communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information if the method of transmission concerned requires caching for technical reasons and the caching is performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service at their request, on condition that:", "1. the provider does not modify the information;", "2. the provider complies with conditions on access to the information;", "3. the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used in the industry;", "4. the provider does not interfere with the lawful use of technology which is widely recognised and used by the industry to obtain data on the use of the information;", "5. the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court, the police or a State supervisory authority has ordered such removal. ”", "Section 10 – Restricted liability in the case of provision of an information storage service", "“ (1) Where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that:", "1. the provider does not have actual knowledge of the content of the information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent;", "2. the provider, upon obtaining knowledge or awareness of the facts specified in paragraph 1 of this subsection, acts expeditiously to remove or to disable access to the information.", "(2) Subsection 1 of this section shall not apply when the recipient of the service is acting under the authority or the control of the provider. ”", "Section 11 – No obligation to monitor", "“ (1) A service provider specified in sections 8 to 10 of this Act is not obliged to monitor information upon the mere transmission thereof or provision of access thereto, temporary storage thereof in cache memory or storage thereof at the request of the recipient of the service, nor is the service provider obliged actively to seek information or circumstances indicating illegal activity.", "(2) The provisions of subsection 1 of this section shall not restrict the right of an official exercising supervision to request the disclosure of such information by a service provider.", "(3) Service providers are required promptly to inform the competent supervisory authorities of alleged illegal activities undertaken or information provided by recipients of their services specified in sections 8 to 10 of this Act, and to communicate to the competent authorities information enabling the identification of recipients of their service with whom they have storage agreements.", "... ”", "40. Articles 244 et seq. of the Code of Civil Procedure ( Tsiviilkohtumenetluse seadustik ) provide for pre-trial taking of evidence ( eeltõendamismenetlus ) – a procedure in which evidence may be taken before the judicial proceedings have even been initiated if it can be presumed that evidence might be lost or that using the evidence afterwards might involve difficulties.", "41. In a judgment of 21 December 2005 (case no. 3-2-1-95-05), the Supreme Court found that, for the purposes of section 1047 of the Obligations Act, disclosure ( avaldamine ) meant disclosure of information to third parties. A person who transmitted information to a media publisher ( meediaväljaanne ) could be considered a discloser ( avaldaja ) even if he or she was not the publisher of the article ( ajaleheartikli avaldaja ) in question. The Supreme Court has reiterated the same position in its subsequent judgments, for example in a judgment of 21 December 2010 (case no. 3 ‑ 2 ‑ 1-67-10).", "42. In a number of domestic cases, actions for defamation have been brought against several defendants, including, for example, a publisher of a newspaper and the author of an article (Supreme Court judgment of 7 May 1998 in case no. 3-2-1-61-98), a publisher of a newspaper and an interviewee (Supreme Court judgment of 1 December 1997 in case no. 3 ‑ 2 ‑ 1-99-97), and solely against a publisher of a newspaper (Supreme Court judgments of 30 October 1997 in case no. 3-2-1-123-97, and 10 October 2007 in case no. 3-2-1-53-07).", "43. Following the Supreme Court ’ s judgment of 10 June 2009 in the case giving rise to the present case before the Court (case no. 3-2-1-43-09), several lower courts have resolved the issue of liability in respect of comments relating to online news articles in a similar manner. Thus, in a judgment of 21 February 2012, the Tallinn Court of Appeal (case no. 2 ‑ 08 ‑ 76058) upheld a lower court ’ s judgment concerning a defamed person ’ s claim against a publisher of a newspaper. The publisher was found liable for defamatory online comments posted by readers in the newspaper ’ s online comments section. The courts found that the publisher was a content service provider. They rejected the publisher ’ s request for a preliminary ruling from the Court of Justice of the European Union (CJEU), finding that it was evident that the defendant did not satisfy the criteria for a passive service provider as previously interpreted by the CJEU and the Supreme Court, and that the relevant rules were sufficiently clear. Therefore, no new directions from the CJEU were needed. The courts also noted that, pursuant to the judgment of 23 March 2010 of the CJEU (Joined Cases C ‑ 236/08 to C ‑ 238/08, Google France SARL and Google Inc. [2010] ECR I ‑ 2417), it was for the national courts to assess whether the role played by a service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. The courts considered that this was not the case in the matter before them. As the publisher had already deleted the defamatory comments by the time of the delivery of the judgment, no ruling was made on that issue; the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed. A similar judgment was handed down by the Tallinn Court of Appeal on 27 June 2013 (case no. 2-10-46710). In that case as well, an Internet news portal was held liable for defamatory comments posted by readers and the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed.", "III. RELEVANT INTERNATIONAL INSTRUMENTS", "A. Council of Europe documents", "44. On 28 May 2003, at the 840th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted a declaration on freedom of communication on the Internet. The relevant parts of the declaration read as follows.", "“ The member states of the Council of Europe,", "...", "Convinced also that it is necessary to limit the liability of service providers when they act as mere transmitters, or when they, in good faith, provide access to, or host, content from third parties;", "Recalling in this respect Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);", "Stressing that freedom of communication on the Internet should not prejudice the human dignity, human rights and fundamental freedoms of others, especially minors;", "Considering that a balance has to be found between respecting the will of users of the Internet not to disclose their identity and the need for law enforcement authorities to trace those responsible for criminal acts;", "...", "Declare that they seek to abide by the following principles in the field of communication on the Internet:", "Principle 1: Content rules for the Internet", "Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery.", "...", "Principle 3: Absence of prior state control", "Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries.", "Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality.", "...", "Principle 6: Limited liability of service providers for Internet content", "Member states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity.", "Member states should ensure that service providers are not held liable for content on the Internet when their function is limited, as defined by national law, to transmitting information or providing access to the Internet.", "In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information.", "When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information.", "In all cases, the above-mentioned limitations of liability should not affect the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of the law.", "Principle 7: Anonymity", "In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police. ”", "45. In its Recommendation CM/ Rec( 2007)16 to member States on measures to promote the public service value of the Internet (adopted on 7 November 2007), the Committee of Ministers noted that the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights. It recommended that the member States draw up a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies.", "46. Recommendation CM/ Rec( 2011)7 of the Committee of Ministers to member states on a new notion of media (adopted on 21 September 2011) reads as follows.", "“ ...", "The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states:", "– adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents;", "– review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people ’ s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship;", "– apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society;", "... ”", "The Appendix to the Recommendation states as follows, in so far as relevant.", "“ 7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe.", "...", "30. Editorial control can be evidenced by the actors ’ own policy decisions on the content to make available or to promote, and on the manner in which to present or arrange it. Legacy media sometimes publicise explicitly written editorial policies, but they can also be found in internal instructions or criteria for selecting or processing (for example verifying or validating) content. In the new communications environments, editorial policies can be embedded in mission statements or in terms and conditions of use (which may contain very detailed provisions on content), or may be expressed informally as a commitment to certain principles (for example netiquette, motto).", "...", "32. Editorial process can involve users (for example peer review and take down requests) with ultimate decisions taken according to an internally defined process and having regard to specified criteria (reactive moderation). New media often resort to ex post moderation (often referred to as post-moderation) in respect of user generated content, which may at first sight be imperceptible. Editorial processes may also be automated (for example in the case of algorithms ex ante selecting content or comparing content with copyrighted material).", "...", "35. Again, it should be noted that different levels of editorial control go along with different levels of editorial responsibility. Different levels of editorial control or editorial modalities (for example ex ante as compared with ex post moderation) call for differentiated responses and will almost certainly permit best to graduate the response.", "36. Consequently, a provider of an intermediary or auxiliary service which contributes to the functioning or accessing of a media but does not – or should not – itself exercise editorial control, and therefore has limited or no editorial responsibility, should not be considered to be media. However, their action may be relevant in a media context. Nonetheless, action taken by providers of intermediary or auxiliary services as a result of legal obligations (for example take down of content in response to a judicial order) should not be considered as editorial control in the sense of the above.", "...", "63. The importance of the role of intermediaries should be underlined. They offer alternative and complementary means or channels for the dissemination of media content, thus broadening outreach and enhancing effectiveness in media ’ s achievements of its purposes and objectives. In a competitive intermediaries and auxiliaries market, they may significantly reduce the risk of interference by authorities. However, given the degree to which media have to rely on them in the new ecosystem, there is also a risk of censorship operated through intermediaries and auxiliaries. Certain situations may also pose a risk of private censorship (by intermediaries and auxiliaries in respect of media to which they provide services or content they carry). ”", "47. On 16 April 2014 Recommendation CM/ Rec( 2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Guide reads as follows.", "Freedom of expression and information", "“ You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:", "1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy;", "2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight;", "...", "6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed. ”", "B. Other international documents", "48. In his report of 16 May 2011 (A/HRC/17/27) to the Human Rights Council, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following.", "“ 25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).", "...", "27. In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals ’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate. ...", "...", "43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf ...", "...", "74. Intermediaries play a fundamental role in enabling Internet users to enjoy their right to freedom of expression and access to information. Given their unprecedented influence over how and what is circulated on the Internet, States have increasingly sought to exert control over them and to hold them legally liable for failing to prevent access to content deemed to be illegal. ”", "49. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media and the OAS (Organization of American States) Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following:", "“ No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content. ”", "IV. RELEVANT EUROPEAN UNION AND COMPARATIVE LAW MATERIAL", "A. European Union instruments and case-law", "1. Directive 2000/31/EC", "50. The relevant parts of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provide as follows.", "“ (9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.", "...", "(42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.", "(43) A service provider can benefit from the exemptions for ‘ mere conduit ’ and for ‘ caching ’ when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission.", "(44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘ mere conduit ’ or ‘ caching ’ and as a result cannot benefit from the liability exemptions established for these activities.", "(45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.", "(46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States ’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information.", "(47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.", "(48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.", "...", "Article 1", "Objective and scope", "1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.", "...", "Article 2", "Definitions", "For the purpose of this Directive, the following terms shall bear the following meanings:", "(a) ‘ information society services ’ : services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC;", "(b) ‘ service provider ’ : any natural or legal person providing an information society service;", "(c) ‘ established service provider ’ : a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider;", "...", "Section 4: Liability of intermediary service providers", "Article 12", "‘ Mere conduit ’", "1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:", "(a) does not initiate the transmission;", "(b) does not select the receiver of the transmission; and", "(c) does not select or modify the information contained in the transmission.", "2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.", "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement.", "Article 13", "‘ Caching ’", "1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service upon their request, on condition that:", "(a) the provider does not modify the information;", "(b) the provider complies with conditions on access to the information;", "(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;", "(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and", "(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.", "2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement.", "Article 14", "Hosting", "1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:", "(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or", "(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.", "2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.", "3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.", "Article 15", "No general obligation to monitor", "1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.", "2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements. ”", "2. Directive 98/34/EC as amended by Directive 98/48/EC", "51. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC, provides as follows:", "Article 1", "“ For the purposes of this Directive, the following meanings shall apply :", "...", "2. ‘ service ’, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.", "For the purposes of this definition:", "– ‘ at a distance ’ means that the service is provided without the parties being simultaneously present,", "– ‘ by electronic means ’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,", "– ‘ at the individual request of a recipient of services ’ means that the service is provided through the transmission of data on individual request.", "An indicative list of services not covered by this definition is set out in Annex V.", "This Directive shall not apply to:", "– radio broadcasting services,", "– television broadcasting services covered by point (a) of Article 1 of Directive 89/552/EEC. ”", "3. Case-law of the CJEU", "52. In a judgment of 23 March 2010 (Joined Cases C ‑ 236/08 to C ‑ 238/08 Google France SARL and Google Inc. ), the CJEU considered that, in order to establish whether the liability of a referencing service provider could be limited under Article 14 of the Directive on electronic commerce, it was necessary to examine whether the role played by that service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. Article 14 of the Directive on electronic commerce had to be interpreted as meaning that the rule laid down therein applied to an Internet referencing service provider in the event that that service provider had not played an active role of such a kind as to give it knowledge of or control over the data stored. If it had not played such a role, that service provider could not be held liable for the data which it had stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser ’ s activities, it had failed to act expeditiously to remove or to disable access to the data concerned.", "53. In a judgment of 12 July 2011 (Case C ‑ 324/09, L ’ Oréal SA and Others ), the CJEU ruled that Article 14 § 1 of the Directive on electronic commerce was to be interpreted as applying to the operator of an online marketplace where that operator had not played an active role allowing it to have knowledge of or control over the data stored. The operator played such a role when it provided assistance which entailed, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace had not played such an active role and the service provided fell, as a consequence, within the scope of Article 14 § 1 of the Directive on electronic commerce, the operator none the less could not, in a case which could result in an order to pay damages, rely on the exemption from liability provided for under that Article if it had been aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question had been unlawful and, in the event of it being so aware, had failed to act expeditiously in accordance with Article 14 § 1 (b) of the Directive on electronic commerce.", "54. In a judgment of 24 November 2011 (Case C-70/10, Scarlet Extended SA ), the CJEU ruled that an injunction could not be made against an Internet service provider requiring it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software, which applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying on that provider ’ s network the movement of electronic files containing a musical, cinematographic or audio - visual work in respect of which the applicant claimed to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which would infringe copyright.", "55. In a judgment of 16 February 2012 (Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA ( SABAM ) ) the CJEU held that the Directive on electronic commerce and Directives 2000/31/EC, 2001/29/EC and 2004/48/EC precluded a national court from issuing an injunction against a hosting service provider requiring it to install a system for filtering information stored on its servers by its service users, which applied indiscriminately to all those users, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying electronic files containing musical, cinematographic or audio - visual work in respect of which the applicant for the injunction claimed to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright.", "56. In a judgment of 13 May 2014 (Case C-131/12, Google Spain SL and Google Inc. ), the CJEU was called upon to interpret Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. It found that the activity of an Internet search engine was to be classified as “ processing of personal data ” within the meaning of Directive 95/46/EC and held that such processing of personal data, carried out by the operator of a search engine, was liable to affect significantly the fundamental rights to privacy and to the protection of personal data (guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union) when the search by means of that engine was carried out on the basis of an individual ’ s name, since that processing enabled any Internet user to obtain through the list of results a structured overview of the information relating to that individual that could be found on the Internet and thereby to establish a more or less detailed profile of him or her. Furthermore, the effect of the interference with the rights of the data subject was heightened on account of the important role played by the Internet and search engines in modern society, which rendered the information contained in such a list of results ubiquitous. In the light of the potential seriousness of that interference, it could not be justified merely by the economic interest of the operator. The CJEU considered that a fair balance should be sought between the legitimate interest of Internet users in having access to the information and the data subject ’ s fundamental rights. The data subject ’ s fundamental rights, as a general rule, overrode the interest of Internet users, but that balance might, however, depend on the nature of the information in question and its sensitivity for the data subject ’ s private life and on the interest of the public in having that information. The CJEU held that in certain cases the operator of a search engine was obliged to remove from the list of results displayed following a search made on the basis of a person ’ s name links to web pages, published by third parties and containing information relating to that person, even when its publication in itself on the web pages in question was lawful. That was so in particular where the data appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they had been processed and in the light of the time that had elapsed.", "57. In a judgment of 11 September 2014 (Case C-291/13, Sotiris Papasavvas ), the CJEU found that, since a newspaper publishing company which posted an online version of a newspaper on its website had, in principle, knowledge of the information which it posted and exercised control over that information, it could not be considered to be an “ intermediary service provider ” within the meaning of Articles 12 to 14 of Directive 2000/31 /EC, whether or not access to that website was free of charge. Thus, it held that the limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 /EC did not apply to the case of a newspaper publishing company which operated a website on which the online version of a newspaper was posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on the website, since it had knowledge of the information posted and exercised control over that information, whether or not access to the website was free of charge.", "B. Comparative law material", "58. From the information available to the Court, it would appear that in a number of the member States of the Council of Europe – which are also member States of the European Union – the Directive on electronic commerce, as transposed into national law, constitutes a primary source of law in the area in question. It would also appear that the greater the involvement of the operator in the third-party content before online publication – whether through prior censoring, editing, selection of recipients, requesting comments on a predefined subject or the adoption of content as the operator ’ s own – the greater the likelihood that the operator will be held liable for that content. Some countries have enacted certain further regulations specifically concerning the take-down procedures relating to allegedly unlawful content on the Internet, and provisions concerning distribution of liability in this context.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "59. The applicant company complained that holding it liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided for in Article 10 of the Convention, which reads as follows.", "“ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ”", "60. The Government contested that argument.", "A. The Chamber judgment", "61. In its judgment of 10 October 2013, the Chamber noted at the outset that the parties ’ views diverged as to the applicant company ’ s role in the present case. According to the Government, the applicant company was to be considered the discloser of the defamatory comments, whereas the applicant company was of the opinion that its freedom to impart information created and published by third parties was at stake, and that the applicant company itself was not a publisher of the third-party comments. The Chamber did not proceed to determine the exact role to be attributed to the applicant company ’ s activities and noted that it was not, in substance, in dispute between the parties that the domestic courts ’ decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention.", "62. As regards the lawfulness of the interference, the Chamber rejected the applicant company ’ s argument that the interference with its freedom of expression was not “ prescribed by law ”. The Chamber observed that the domestic courts had found that the applicant company ’ s activities did not fall within the scope of the Directive on electronic commerce and the Information Society Services Act. It considered that it was not its task to take the place of the domestic courts and that it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Chamber was furthermore satisfied that the relevant provisions of the civil law – although they were quite general and lacked detail in comparison with, for example, the Information Society Services Act – along with the relevant case-law, made it clear that a media publisher was liable for any defamatory statements made in its publication. The Chamber had regard to the fact that the applicant company was a professional publisher which operated one of the largest news portals in Estonia, and also that a degree of notoriety had been attributable to comments posted in its commenting area. Against that background, the Chamber considered that the applicant company had been in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail.", "63. The Chamber further found that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. In the Chamber ’ s view, the fact that the actual authors of the comments were also in principle liable did not remove the legitimate aim of holding the applicant company liable for any damage to the reputation and rights of others.", "64. As regards the proportionality of the interference, the Chamber noted that there was no dispute that the comments in question had been of a defamatory nature. In assessing the proportionality of the interference with the applicant company ’ s freedom of expression, the Chamber had regard to the following elements. It examined firstly the context of the comments, secondly, the measures applied by the applicant company in order to prevent or remove defamatory comments, thirdly, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and, fourthly, the consequences of the domestic proceedings for the applicant company.", "65. In particular, the Chamber considered that the news article published by the applicant company that had given rise to the defamatory comments had concerned a matter of public interest and the applicant company could have foreseen the negative reactions and exercised a degree of caution in order to avoid being held liable for damaging the reputation of others. However, the prior automatic filtering and notice-and-take-down system used by the applicant company had not ensured sufficient protection for the rights of third parties. Moreover, publishing news articles and making readers ’ comments on them public had been part of the applicant company ’ s professional activities and its advertising revenue depended on the number of readers and comments. The applicant company had been able to exercise a substantial degree of control over readers ’ comments and it had been in a position to predict the nature of the comments a particular article was liable to prompt and to take technical or manual measures to prevent defamatory statements from being made public. Furthermore, there had been no realistic opportunity of bringing a civil claim against the actual authors of the comments as their identity could not easily be established. In any event, the Chamber was not convinced that measures allowing an injured party to bring a claim only against the authors of defamatory comments would have guaranteed effective protection of the injured party ’ s right to respect for his or her private life. It had been the applicant company ’ s choice to allow comments by non-registered users, and by doing so it had to be considered to have assumed a certain responsibility for such comments. For all the above reasons, and considering the moderate amount of damages the applicant company had been ordered to pay, the restriction on its freedom of expression was considered to have been justified and proportionate. There had accordingly been no violation of Article 10 of the Convention.", "B. The parties ’ submissions to the Grand Chamber", "1. The applicant company", "(a) General remarks", "66. The applicant company argued that in today ’ s world, Internet media content was increasingly created by the users themselves. User-generated content was of high importance – comments on news stories and articles often raised serious debates in society and even informed journalists of issues that were not publicly known, thereby contributing to the initiation of journalistic investigations. The possibility for “ everyone ” to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship.", "67. As regards user-generated content, the applicant company was of the opinion that it was sufficient for a host to expeditiously remove third-party content as soon as it became aware of its illegal nature. If this was deemed insufficient by the Court, anonymous public speech would be prohibited or there would be arbitrary restrictions on commenters ’ freedom of communication by the intermediary, which would be impelled to err on the side of caution to avoid possible subsequent liability.", "(b) Delfi ’ s role", "68. The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments. It argued that intermediaries were not best suited to decide upon the legality of user-generated content. This was especially so in respect of defamatory content since the victim alone could assess what caused damage to his reputation.", "(c) Lawfulness", "69. The applicant company argued that the interference with its freedom of expression – including its right to store information and to enable users to impart their opinions – was not prescribed by law. It submitted that there was no legislation or case-law stating that an intermediary was to be considered a publisher of content which it was not aware of. On the contrary, the applicable law expressly prohibited the imposition of liability on service providers for third-party content. In this connection, the applicant company referred to the Directive on electronic commerce, the Estonian Information Society Services Act and the Council of Europe Declaration on freedom of communication on the Internet. The Directive provided for limited and notice-based liability with take-down procedures for illegal content. Service providers were exempted from liability where, upon obtaining actual knowledge of illegal activities, they acted expeditiously to remove or disable access to the information concerned. Such removal or disabling of access had to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level ( Recital 46 of the Preamble to the Directive). The applicant company argued that this law was indisputably formulated with sufficient precision to enable a citizen to regulate his conduct. According to the applicant company, its behaviour had been in full compliance with the applicable law as it had removed the defamatory comments the same day it had been notified by the original plaintiff.", "70. The applicant company further argued that even the existing tort law did not classify disseminators (postal workers, libraries, bookstores and others) as publishers. Thus, it remained entirely unclear how the existing tort law had been applied to a “ novel area related to new technologies ” as held in the Chamber judgment, that is, to an online news portal operator providing a service enabling users to interact with journalists and each other and to contribute valuable ideas to the discussion of matters of public interest. There was no law imposing an obligation on the applicant company to proactively monitor user comments.", "(d) Legitimate aim", "71. The applicant company did not dispute that the interference in question had a legitimate aim.", "(e) Necessary in a democratic society", "72. According to the applicant company, the interference was not necessary in a democratic society. It argued that as a result of the Chamber judgment it had two choices. Firstly, it could employ an army of highly trained moderators to patrol (in real time) each message board (for each news article) to screen any message that could be labelled defamatory (or that could infringe intellectual property rights, inter alia ); at the end of the day, these moderators would, just in case, remove any sensitive comments and all discussions would be moderated so that they were limited to the least controversial issues. Otherwise, it could simply avoid such a massive risk and shut down these fora altogether. Either way, the technological capability to provide ordinary readers with an opportunity to comment freely on daily news and assume responsibility independently for their own comments would be abandoned.", "73. The applicant company argued that the Supreme Court ’ s judgment had had a “ chilling effect ” on freedom of expression and that it had restricted the applicant company ’ s freedom to impart information. It amounted to the establishment of an obligation to censor private individuals.", "74. In support of its argument that the interference was not necessary in a democratic society, the applicant company relied on the following factors.", "75. Firstly, it argued that the comments were reactions from members of the public to an event caused by the Saaremaa Shipping Company and not to the article as such. Furthermore, the article was a balanced and neutral one. It addressed an issue of great importance to the residents of the biggest island of Estonia affecting their everyday lives. The readers ’ negative reactions had not been caused by the article but by the shipping company.", "76. Secondly, the applicant company had taken sufficient measures to prevent or remove defamatory comments; in the present case, the comments in question had been removed on the same day that the applicant company had been notified of them.", "77. Thirdly, the applicant company argued that the actual authors of the comments should bear responsibility for their contents. It disagreed with the Chamber ’ s finding that it was difficult to establish the identity of the authors of the comments and contended that the authors ’ identities could be established in the “ pre-trial taking of evidence ” procedure under Article 244 of the Code of Civil Procedure. Once the names and addresses of the authors were established, a claim against them could be brought without any difficulties.", "78. Fourthly, the applicant company insisted that there was no pressing social need for a strict liability standard for service providers. It argued that there was a European consensus that no service provider should be liable for content of which it was not the author. Accordingly, the margin of appreciation afforded to the Contracting States in this respect was necessarily a narrow one. Furthermore, it considered that the modest sum it had been ordered to pay in compensation for non-pecuniary damage did not justify the interference. It also emphasised that if the applicant company enjoyed limited liability the original plaintiff would not have been left without a remedy – he could have sued the actual authors of the comments. The applicant company objected to the establishment of private censorship and contended that it was sufficient to have a two-pronged system for the protection of the rights of third parties: a notice-and-take-down system and the possibility of bringing a claim against the authors of defamatory comments. There was no convincingly established “ pressing social need ” for the liability of Internet service providers.", "79. The applicant company also emphasised the importance of anonymity for free speech on the Internet; this encouraged the full involvement of all, including marginalised groups, political dissidents and whistle-blowers, and allowed individuals to be safe from reprisals.", "80. Lastly, the applicant company contended that the domestic courts had clearly misinterpreted European Union (EU) law. It submitted that the Chamber judgment had created a collision of obligations and legal uncertainty since adhering to EU law on the issue of liability for host service providers would render the State liable under the Convention, whereas adhering to the test set out in the judgment would not be in conformity with EU law.", "2. The Government", "(a) General remarks", "81. The Government made the following remarks in respect of the scope of the case. Firstly, according to the Court ’ s case-law it was for the domestic courts to decide on the domestically applicable law and interpret it. Furthermore, interpretation of EU law was the task of the CJEU. The domestic courts, in reasoned decisions, had found that the Obligations Act, rather than the Directive on electronic commerce or the Information Society Services Act, was applicable. The Grand Chamber should also proceed from this presumption and the applicant company ’ s allegations regarding the applicability of EU law were inadmissible. Secondly, the Government stressed that there existed a number of different types of Internet portals and the issue of their operators ’ liability could not be generalised. The present case was limited to the activities of the Delfi portal at the material time. In that connection the Government pointed out that Delfi had actively invited readers to comment on the articles it had chosen itself; it had published anonymous comments posted on those articles and in the same section; and the comments could be amended or deleted only by Delfi. The applicant company ’ s liability should be assessed in that specific context.", "82. The Government emphasised that there was no dispute that the comments in question had been defamatory.", "83. The Government noted that, despite the applicant company ’ s allegations to that effect, it had not been forced to disable anonymous comments or to change its business model. On the contrary, Delfi remained the largest Internet portal in Estonia; it was still possible to post anonymous comments on the portal and the number of comments had risen from 190,000 comments a month in 2009 to 300,000 in 2013. According to an article published on 26 September 2013, Delfi deleted 20,000 to 30,000 comments monthly (7 - 10% of all comments). Postimees, the second-largest portal, deleted up to 7% of a total of 120,000 comments. Both portals had five employees who dealt with taking down insulting comments. Since December 2013 Delfi had used a two-tier comments section where registered comments and anonymous comments were shown separately.", "(b) Lawfulness", "84. The Government insisted that the interference with the applicant company ’ s rights had been “ prescribed by law ”. They referred to the domestic legislation and case-law summarised in paragraphs 32 to 36, 38 and 39 of the Chamber judgment, as well as the Court ’ s relevant case-law as summarised in the Chamber judgment. The Government also pointed out that there was no Estonian case-law on the basis of which Delfi – which encouraged the posting of comments on the articles selected and published by it – could have presumed that the owner of an Internet portal as a new media publication was not liable for the damage caused by comments posted on its articles, which formed an integral part of the news and which only Delfi could administer. Further, by the time the domestic judgments had been handed down in Delfi, it was more than clear that Internet media had a wide influence over the public and that, in order to protect the private life of others, liability rules had to apply to new media as well.", "85. The Government reiterated that the applicant company ’ s references to EU law and the Information Society Services Act should be disregarded. The Grand Chamber could only assess whether the effects of the interpretation of the Obligations Act were compatible with Article 10 § 2 of the Convention and could not assess the legislation the domestic courts had found not to be applicable. They also pointed out that the domestic courts had paid sufficient attention to the question whether the applicant company might be regarded as a caching or hosting service provider. However, they had found this not to be the case. In particular, in the event of hosting, the service provider merely provided a data storage service, while the stored data and their insertion, amendment, removal and content remained under the control of the service users. In Delfi ’ s comments section, however, commenters lost control of their comments as soon as they had entered them, and they could not change or delete them. Having regard also to the other aspects of the case – Delfi chose the articles and their titles; Delfi invited readers to comment and set the Rules on posting comments (including that the comments had to be related to the article); the amount of advertising revenue Delfi received increased the more comments were posted; Delfi also selectively monitored the comments – the domestic courts had found that Delfi had not acted only as a technical intermediary service provider and could not be classified either as a cache or as a host. The Government also emphasised that the CJEU had never adjudicated on a case similar to the Delfi case. In any event, even if the CJEU ’ s case-law, such as L ’ Oréal SA and Others (cited above), was of relevance, it could be concluded that the role played by Delfi was an active one and it could not be granted the exemptions from liability provided in the Directive on electronic commerce.", "(c) Legitimate aim", "86. The Government submitted that the interference with the applicant company ’ s rights under Article 10 had the legitimate aim of protecting the honour of others.", "(d) Necessary in a democratic society", "87. As regards the question whether the interference was necessary in a democratic society, the Government emphasised at the outset the importance of the balance between Articles 10 and 8 of the Convention.", "88. The Government referred extensively to the relevant reasoning of the Chamber judgment. In addition, they emphasised the following.", "89. Firstly, as regards the context of the comments, the Government noted that the domestic courts had attached importance to the fact that the selection and publication of the news articles and the publication of readers ’ comments on these articles in the same section had been part of the applicant company ’ s professional activity as a discloser of information. Delfi invited readers to comment on its articles – often giving the articles provocative headlines and showing the number of comments on the main page immediately after the title of an article in bold red, so that commenting on an article would be more enticing – which in turn brought in advertising revenue.", "90. Secondly, in respect of the measures applied by the applicant company, the Government stressed the importance of ensuring the protection of third parties in relation to the Internet, which had become an extensive medium available to the majority of the population and used on a daily basis. The Government added that the applicant company ’ s responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal – only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person ’ s honour were no longer sufficient because the offensive comments had already reached the general public and done the damage. The Government further argued that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason.", "91. Thirdly, as regards the liability of the actual authors, the Government submitted that in civil proceedings – a remedy which was preferable to criminal remedies in defamation cases – investigative measures such as surveillance procedures were not accessible. In respect of the procedure for “ pre-trial taking of evidence ”, the Government argued that this was not a reasonable alternative in the case of anonymous comments for the following two reasons: (a) the relevant Internet Protocol ( IP) addresses could be not always established, for example if the user data or the comment had been deleted or an anonymous proxy had been used; and (b) even if the computers used for posting the comments could be identified, it could still prove impossible to identify the persons who had posted them, for example in cases where a public computer, a Wi-Fi hotspot, a dynamic IP address or a server in a foreign country had been used, or for other technical reasons.", "92. Fourthly, as regards the consequences of the domestic proceedings for the applicant company, the Government noted that Delfi had not needed to change its business model or disallow anonymous comments. In fact, the total number of comments – the majority of which were anonymous – had increased, while Delfi now employed five moderators. The Government also pointed out that the finding of liability was not aimed at obtaining huge or punitive awards of compensation. Indeed, in Delfi ’ s case the compensation it had been obliged to pay for non-pecuniary damage was negligible (EUR 320), and in the subsequent case-law (see paragraph 43 above) the courts had held that finding a violation or deleting a comment could be a sufficient remedy. The Government concluded that the applicant company ’ s civil liability had not had a “ chilling effect ” on the freedom of expression, but was justified and proportionate.", "93. Lastly, referring to the legislation and practice of several European countries, the Government contended that there was no European consensus on or trend towards excluding the liability of an Internet portal owner which acted as a content service provider and the discloser of anonymous comments on its own articles.", "C. The third-party interveners ’ submissions", "1. The Helsinki Foundation for Human Rights", "94. The Helsinki Foundation for Human Rights in Warsaw emphasised the differences between the Internet and traditional media. It noted that online services like Delfi acted simultaneously in two roles: as content providers with regard to their own news, and as host providers with regard to third-party comments. It submitted that moderation of user-generated content or the power to remove access to it should not be regarded as having effective editorial control. Intermediary service providers should not be treated as traditional media and should not be subject to the same liability regime.", "95. The Helsinki Foundation argued that authors should be accountable for their defamatory comments and the State should provide a regulatory framework making it possible to identify and prosecute online offenders. At the same time, it also contended that the possibility of publishing anonymously on the Internet should be regarded as a value.", "2. Article 19", "96. Article 19 argued that one of the most innovative features of the Internet was the ease with which it allowed any person to express his or her views to the entire world without seeking the prior approval of publishers. Comment platforms enabled and promoted public debate in its purest form and this had very little to do with the provision of news. As a matter of fact and form, comments sections on news websites were better understood as newspapers appropriating the private discussion model that was native to the Internet rather than the other way round. Article 19 argued that making websites responsible for comments made by users would impose an unacceptable burden on websites.", "97. Article 19 contended that the Directive on electronic commerce was meant to shield websites from liability for their users ’ comments, regardless of their own content. Article 19 insisted that, while the normal liability rules should continue to apply to online news sites for the articles they published, they should be regarded as hosts – rather than publishers – for the purposes of the comments section on their website. As hosts, online news sites should in principle be immune from liability for third-party content in circumstances where they had not been involved in directly modifying the content in issue. They should not be held liable when they took all reasonable steps to remove content upon being notified, and they should not automatically be held liable simply because they decided not to remove a comment reported to them.", "3. Access", "98. According to Access, anonymity and pseudonymity supported the fundamental rights of privacy and freedom of expression. A regulatory prohibition on anonymous use of the Internet would constitute an interference with the rights to privacy and freedom of expression protected under Articles 8 and 10 of the Convention, and blanket restrictions on anonymous and pseudonymous expression would impair the very essence of these rights. Access referred to the long-standing case-law of several countries protecting the right to anonymous communication, both on and offline.", "99. Furthermore, Access pointed out that services designed to provide enhanced confidentiality and anonymity while using the Internet had become more popular in the wake of revelations of mass surveillance online. It further argued that restricting Internet users to identified expression would harm the Internet economy, and referred to research which had concluded that the most important contributors online were those using pseudonyms.", "100. As regards real-name policy, evidence from China showed that such a measure had caused a dramatic drop in the number of comments posted. Experience in South Korea had demonstrated that real-name policy failed to improve meaningfully comments, whereas it was discriminatory against domestic Internet companies, as the users had sought alternative, international platforms that still allowed anonymous and pseudonymous comments.", "4. Media Legal Defence Initiative", "101. Media Legal Defence Initiative (MLDI) made its submissions on behalf of twenty-eight non-governmental and media organisations and companies. It noted that the vast majority of online media outlets allowed reader comments. Through the comments facility, readers could debate the news amongst themselves as well as with journalists. This transformed the media from a one-way flow of communication into a participatory form of speech which recognised the voice of the reader and allowed different points of view to be aired.", "102. MLDI noted that the boundaries between access and content were now increasingly blurred and “ intermediaries ” included enhanced search services, online marketplaces, web 2.0 applications and social networking sites. From the users ’ perspective, they all facilitated access to and use of content and were crucial to the realisation of the right to freedom of expression.", "103. MLDI contended that it was the States ’ task to ensure a regulatory framework that protected and promoted freedom of expression whilst also guarding other rights and interests. It provided a detailed overview of the regulatory framework for intermediary liability in the United States of America and in the European Union. It noted that approaches in these jurisdictions were distinct, but nevertheless similar in that it was acknowledged that some level of protection for intermediaries was vital and that there was no requirement that intermediaries should monitor user content. It also noted that in some member States notice-and-take-down procedures had resulted in excessive liability on intermediaries and the taking down of legitimate content.", "104. MLDI also elaborated on the emerging good practices in the regulation of user-generated content by online media. It pointed out that the majority of publications in North America and Europe did not screen or monitor comments before they were posted. They did, however, engage in some kind of post-publication moderation. Many online media outlets also ran filtering software and had mechanisms in place to block users who consistently broke the rules. The majority of online media, including leading European news outlets, required user registration but users were not required to disclose their real names.", "5. EDiMA, CCIA Europe and EuroISPA", "105. The European Digital Media Association (EDiMA), the Computer & Communications Industry Association (CCIA Europe) and EuroISPA, a pan-European association of European Internet Services Providers Associations, made joint submissions as third parties.", "106. The third-party interveners argued that there was an established balance struck to date in legislation, international agreements and recommendations according to which, firstly, host service providers were exempt from liability for content in the absence of “ actual knowledge ” and, secondly, States were prohibited from requiring host providers to carry out general monitoring of content.", "107. They noted that, while some information available online came from traditional publishing sources such as newspapers, and was rightly regulated by the law applicable to publishers, a large amount of online content came instead from individual speakers who could state their views unmediated by traditional editorial institutions. Comment facilities allowed for a right of reply and were thus fundamentally different from traditional publications, where no such right existed.", "108. The third-party interveners argued that the technology and operating processes for an online news discussion forum like Delfi were technologically indistinguishable from hosting services such as social media/networking platforms, blogs/microblogs and others. Content composed and uploaded by users was automatically made publicly visible without human intervention. For many hosts considerations of scale made proactive human review of all user content effectively impossible. For small websites and start-ups, content control was likely to be particularly challenging and could be so costly as to be prohibitive.", "109. The third-party interveners argued that established law in the European Union and other countries envisaged the notice-and-take-down system as a legal and practical framework for Internet content hosting. This balance of responsibilities between users and hosts allowed platforms to identify and remove defamatory or other unlawful speech, whilst at the same time enabling robust discussion on controversial topics of public debate; it made the operation of speech-hosting platforms practicable on a large scale.", "D. The Court ’ s assessment", "1. Preliminary remarks and the scope of the Court ’ s assessment", "110. The Court notes at the outset that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression. That is undisputed and has been recognised by the Court on previous occasions (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012, and Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, nos. 3002/03 and 23676/03, § 27, ECHR 2009 ). However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. Bearing in mind the need to protect the values underlying the Convention, and considering that the rights under Articles 10 and 8 of the Convention deserve equal respect, a balance must be struck that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that the possibility of imposing liability for defamatory or other types of unlawful speech must, in principle, be retained, constituting an effective remedy for violations of personality rights.", "111. On this basis, and in particular considering that this is the first case in which the Court has been called upon to examine a complaint of this type in an evolving field of technological innovation, the Court considers it necessary to delineate the scope of its inquiry in the light of the facts of the present case.", "112. Firstly, the Court observes that the Supreme Court recognised (see paragraph 14 of its judgment of 10 June 2009, set out in paragraph 31 above) that “ [p] ublishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs. ”", "113. The Court sees no reason to call into question the above distinction made by the Supreme Court. On the contrary, the starting-point of the Supreme Court ’ s reflections, that is, the recognition of differences between a portal operator and a traditional publisher, is in line with the international instruments in this field, which manifest a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audio - visual media, on the one hand and Internet-based media operations, on the other. In the recent Recommendation of the Committee of Ministers to the member States of the Council of Europe on a new notion of media, this is termed a “ differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe ” (see paragraph 7 of the Appendix to Recommendation CM/Rec(2011)7, quoted in paragraph 46 above). Therefore, the Court considers that because of the particular nature of the Internet, the “ duties and responsibilities ” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher as regards third-party content.", "114. Secondly, the Court observes that the Supreme Court of Estonia found that the “ legal assessment by the courts of the twenty comments of a derogatory nature [ was ] substantiated. The courts [had] correctly found that those comments [were] defamatory since they [were] of a vulgar nature, degrade[d] human dignity and contain[ ed ] threats ” (see paragraph 15 of the judgment, set out in paragraph 31 above). Further, in paragraph 16 of its judgment, the Supreme Court reiterated that the comments degraded “ human dignity ” and were “ clearly unlawful ”. The Court notes that this characterisation and analysis of the unlawful nature of the comments in question (see paragraph 18 above) is obviously based on the fact that the majority of the comments are, viewed on their face, tantamount to an incitement to hatred or to violence against L.", "115. Consequently, the Court considers that the case concerns the “ duties and responsibilities ” of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engage in clearly unlawful speech, which infringes the personality rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them.", "116. Accordingly, the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topic without the discussion being channelled by any input from the forum ’ s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or blog as a hobby.", "117. Furthermore, the Court notes that the applicant company ’ s news portal was one of the biggest Internet media publications in the country; it had a wide readership and there was a known public concern regarding the controversial nature of the comments it attracted (see paragraph 15 above). Moreover, as outlined above, the impugned comments in the present case, as assessed by the Supreme Court, mainly constituted hate speech and speech that directly advocated acts of violence. Thus, the establishment of their unlawful nature did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful. It is against this background that the Court will proceed to examine the applicant company ’ s complaint.", "2. Existence of an interference", "118. The Court notes that it was not in dispute between the parties that the applicant company ’ s freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts ’ decisions. The Court sees no reason to hold otherwise.", "119. Such an interference with the applicant company ’ s right to freedom of expression must be “ prescribed by law ”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “ necessary in a democratic society ”.", "3. Lawfulness", "120. The Court reiterates that the expression “ prescribed by law ” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001 ‑ VI; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A; and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II).", "121. One of the requirements flowing from the expression “ prescribed by law ” is foreseeability. Thus, a norm cannot be regarded as a “ law ” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ IV, and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 141 ).", "122. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed ( ibid., § 142). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, cited above, § 41, with further references to Cantoni v. France, 15 November 1996, § 35, Reports 1996 ‑ V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004 ‑ VI).", "123. In the present case the parties ’ opinions differed as to whether the interference with the applicant company ’ s freedom of expression was “ prescribed by law ”. The applicant company argued that there was no domestic law according to which an intermediary was to be taken as a professional publisher of comments posted on its website by third parties regardless of whether it was aware of their specific content. On the contrary, the applicant company relied on the domestic and European legislation on Internet service providers and argued that it expressly prohibited the imposition of liability on service providers for third-party content.", "124. The Government referred to the relevant provisions of the civil law and domestic case-law to the effect that media publishers were liable for their publications along with the authors. They added that there was no case-law on the basis of which the applicant company could have presumed that the owner of an Internet news portal as a new media publication was not liable for the comments posted on its articles. In their view the Court should proceed from the facts as established and the law as applied and interpreted by the domestic courts and not take account of the applicant company ’ s references to EU law. In any event, the EU law referred to by the applicant company actually supported the domestic courts ’ interpretations and conclusions.", "125. The Court observes that the difference in the parties ’ opinions as regards the law to be applied stems from their diverging views on the issue of how the applicant company is to be classified. According to the applicant company, it should be classified as an intermediary as regards the third-party comments, whereas the Government argued that the applicant company was to be seen as a media publisher, including with regard to such comments.", "126. The Court observes (see paragraphs 112 - 13 above) that the Supreme Court recognised the differences between the roles of a publisher of printed media, on the one hand, and an Internet portal operator engaged in media publications for an economic purpose, on the other. However, the Supreme Court found that because of their “ economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator [were] publishers/disclosers ” for the purposes of section 1047 of the Obligations Act (see paragraph 14 of the judgment, set out in paragraph 31 above).", "127. The Court considers that, in substance, the applicant company argues that the domestic courts erred in applying the general provisions of the Obligations Act to the facts of the case as they should have relied upon the domestic and European legislation on Internet service providers. Like the Chamber, the Grand Chamber reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Centro Europa 7 S.r.l. and Di Stefano, cited above, § 140, and Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999 ‑ III ). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I). Thus, the Court confines itself to examining whether the Supreme Court ’ s application of the general provisions of the Obligations Act to the applicant company ’ s situation was foreseeable for the purposes of Article 10 § 2 of the Convention.", "128. Pursuant to the relevant provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 33 ‑ 38 above), as interpreted and applied by the domestic courts, the applicant company was considered a publisher and deemed liable for the publication of the clearly unlawful comments. The domestic courts chose to apply these norms, having found that the special regulation contained in the Information Society Services Act transposing the Directive on electronic commerce into Estonian law did not apply to the present case since the latter related to activities of a merely technical, automatic and passive nature, unlike the applicant company ’ s activities, and that the objective pursued by the applicant company was not merely the provision of an intermediary service (see paragraph 13 of the Supreme Court ’ s judgment, set out in paragraph 31 above). In this particular context the Court takes into account the fact that some countries have recognised that the importance and the complexity of the subject matter, involving the need to ensure proper balancing of different interests and fundamental rights, call for the enactment of specific regulations for situations such as that pertaining in the present case (see paragraph 58 above). Such action is in line with the “ differentiated and graduated approach ” to the regulation of new media recommended by the Council of Europe (see paragraph 46 above) and has found support in the Court ’ s case-law (see, mutatis mutandis, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 63-64, ECHR 2011 ). However, although various legislative approaches are possible in legislation to take account of the nature of new media, the Court is satisfied on the facts of this case that the provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act, along with the relevant case-law, made it foreseeable that a media publisher running an Internet news portal for an economic purpose could, in principle, be held liable under domestic law for the uploading of clearly unlawful comments, of the type in issue in the present case, on its news portal.", "129. The Court accordingly finds that, as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delfi news portal is one of the largest in Estonia. Public concern had already been expressed before the publication of the comments in the present case and the Minister of Justice had noted that victims of insults could bring a suit against Delfi and claim damages (see paragraph 15 above). Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “ prescribed by law ” within the meaning of the second paragraph of Article 10 of the Convention.", "4. Legitimate aim", "130. The parties before the Grand Chamber did not dispute that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. The Court sees no reason to hold otherwise.", "5. Necessary in a democratic society", "(a) General principles", "131. The fundamental principles concerning the question whether an interference with freedom of expression is “ necessary in a democratic society ” are well established in the Court ’ s case-law (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013) and have been summarised as follows.", "“ ( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... ”", "132. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, cited above, § 59). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998 ‑ IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I).", "133. Moreover, the Court has previously held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ). At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63).", "134. In considering the “ duties and responsibilities ” of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audio - visual media often have a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, no. 15404/89, Commission decision of 16 April 1991, Decisions and Reports 70, p. 262). The methods of objective and balanced reporting may vary considerably, depending among other things on the media in question (see Jersild, cited above, § 31 ).", "135. The Court has held that the “ punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so ” (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, and Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013 ).", "136. Moreover, the Court has held that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports 1998 ‑ VII; Garaudy v. France (dec.), no. 65831/01, ECHR 2003 ‑ IX; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004 ‑ XI; Witzsch v. Germany (dec.), no. 7485/03, 13 December 2005; and Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007).", "137. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).", "138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “ protection of the reputation or rights of others ”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10, and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG, cited above, § 84 ).", "139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who was the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to Hachette Filipacchi Associés ( ICI PARIS ), no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover, cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011 ). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013 ).", "(b) Application of the above principles to the present case", "(i) Elements in the assessment of proportionality", "140. The Court notes that it is not disputed that the comments posted by readers in reaction to the news article published in the comments section on the applicant company ’ s Internet news portal were of a clearly unlawful nature. Indeed, the applicant company removed the comments once it was notified by the injured party, and described them as “ infringing ” and “ illicit ” before the Chamber (see paragraph 84 of the Chamber judgment). Moreover, the Court is of the view that the majority of the impugned comments amounted to hate speech or incitements to violence and as such did not enjoy the protection of Article 10 (see paragraph 136 above). Thus, the freedom of expression of the authors of the comments is not in issue in the present case. Rather, the question before the Court is whether the domestic courts ’ decisions, holding the applicant company liable for these comments posted by third parties, were in breach of its freedom to impart information as guaranteed by Article 10 of the Convention.", "141. The Court observes that, although the applicant company immediately removed the comments in question from its website upon notification by L. ’ s lawyers (see paragraphs 18 - 19 above), the Supreme Court held the applicant company liable on the basis of the Obligations Act as it should have prevented the publication of comments with clearly unlawful contents. It then referred to section 1047(3) of the Obligations Act, according to which disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the “ gravity of the potential violation ”. The Supreme Court thus held that, after the disclosure, the applicant company had failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. The inactivity of the applicant company was thus deemed unlawful as it had not “ proved the absence of culpability ” under section 1050(1) of the Obligations Act (see paragraph 16 of the Supreme Court judgment, set out in paragraph 31 above).", "142. In the light of the Supreme Court ’ s reasoning, the Court must, according to its consistent case-law, examine whether the domestic courts ’ finding of liability on the part of the applicant company was based on relevant and sufficient grounds in the particular circumstances of the case (see paragraph 131 above). The Court observes that, in order to resolve the question whether the domestic courts ’ decisions holding the applicant company liable for the comments posted by third parties were in breach of its freedom of expression, the Chamber identified the following aspects as relevant for its analysis: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and the consequences of the domestic proceedings for the applicant company (see paragraphs 85 et seq. of the Chamber judgment).", "143. The Court agrees that these aspects are relevant for the concrete assessment of the proportionality of the interference in issue within the scope of the Court ’ s examination of the present case (see paragraphs 112 - 17 above ).", "(ii) Context of the comments", "144. As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments regarding unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comments section, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company ’ s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the author of the comments did not mean that it had no control over the comments section (see paragraph 13 of the judgment, set out in paragraph 31 above).", "145. The Court also notes in this regard that the Rules on posting comments on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors ’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company ’ s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court ’ s reasoning, the Court agrees with the Chamber ’ s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal.", "146. In sum, the Court considers that it was sufficiently established by the Supreme Court that the applicant company ’ s involvement in making public the comments on its news articles on the Delfi news portal went beyond that of a passive, purely technical service provider. The Court therefore finds that the Supreme Court based its reasoning on this issue on grounds that were relevant for the purposes of Article 10 of the Convention.", "(iii) Liability of the authors of the comments", "147. In connection with the question whether the liability of the actual authors of the comments could serve as a sensible alternative to the liability of the Internet news portal in a case like the present one, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of ideas and information in an important manner, including, notably, on the Internet. At the same time, the Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of the information once disclosed, which may considerably aggravate the effects of unlawful speech on the Internet compared to traditional media. It also refers in this connection to a recent judgment of the Court of Justice of the European Union in Google Spain SL and Google Inc. (cited above), in which that court, albeit in a different context, dealt with the problem of the availability on the Internet of information seriously interfering with a person ’ s private life over an extended period of time, and found that the individual ’ s fundamental rights, as a rule, overrode the economic interests of the operator of a search engine and the interests of other Internet users (see paragraph 56 above).", "148. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification – ranging from limited verification (for example, through activation of an account via an e-mail address or a social network account) to secure authentication, be it by the use of national electronic identity cards or online banking authentication data allowing rather more secure identification of the user. A service provider may also allow an extensive degree of anonymity for its users, in which case the users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators.", "149. Thus, in the judgment in K.U. v. Finland, concerning an offence of “ malicious misrepresentation ” of a sexual nature against a minor, the Court found that “ [a] lthough freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others ” (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008). The Court in that case rejected the Government ’ s argument that the applicant had had the possibility of obtaining damages from the service provider, finding that this was not sufficient in the circumstances of the case. It held that there had to be a remedy enabling the actual offender to be identified and brought to justice, whereas at the relevant time the regulatory framework of the respondent State had not provided for the possibility of ordering the Internet service provider to divulge the information required for that purpose (ibid., §§ 47 and 49). Although K.U. v. Finland concerned a breach classified as a criminal offence under the domestic law and involved a more sweeping intrusion into the victim ’ s private life than the present case, it is evident from the Court ’ s reasoning that anonymity on the Internet, while an important factor, must be balanced against other rights and interests.", "150. As regards the establishment of the identity of the authors of the comments in civil proceedings, the Court notes that the parties ’ positions differed as to its feasibility. On the basis of the information provided by the parties, the Court observes that the Estonian courts, in the “ pre-trial taking of evidence ” procedure under Articles 244 et seq. of the Code of Civil Procedure (see paragraph 40 above), have granted requests by defamed persons for the disclosure by online newspapers or news portals of the IP addresses of authors who had posted allegedly defamatory comments and for the disclosure by Internet access providers of the names and addresses of the subscribers to whom the IP addresses in question had been assigned. The examples provided by the Government show mixed results: in some cases it had proved possible to establish the computer from which the comments had been made, while in other cases, for various technical reasons, this had proved impossible.", "151. According to the Supreme Court ’ s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to bring a claim effectively against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the judgment in Krone Verlag GmbH & Co. KG v. Austria (no. 4) ( no. 72331/01, § 32, 9 November 2006) in which it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company ’ s right to freedom of expression.", "(iv) Measures taken by the applicant company", "152. The Court notes that the applicant company highlighted the number of comments on each article on its website, and therefore the articles with the most lively exchanges must have been easily identifiable for the editors of the news portal. The article in issue in the present case attracted 185 comments, apparently well above average. The comments in question were removed by the applicant company some six weeks after they were uploaded on the website, upon notification by the injured person ’ s lawyers to the applicant company (see paragraphs 17 - 19 above).", "153. The Court observes that the Supreme Court stated in its judgment that “ [o]n account of the obligation arising from law to avoid causing harm, the [applicant company] should have prevented the publication of comments with clearly unlawful contents ”. However, it also held that “ [a]fter the disclosure, the [applicant company had] failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative ” (see paragraph 16 of the judgment, set out in paragraph 31 above). Therefore, the Supreme Court did not explicitly determine whether the applicant company was under an obligation to prevent the uploading of the comments to the website or whether it would have sufficed under domestic law for the applicant company to have removed the offending comments without delay after publication to escape liability under the Obligations Act. The Court considers that, when assessing the grounds upon which the Supreme Court relied in its judgment entailing an interference with the applicant company ’ s Convention rights, there is nothing to suggest that the national court intended to restrict its rights to a greater extent than that required to achieve the aim pursued. On this basis, and having regard to the freedom to impart information as enshrined in Article 10, the Court will thus proceed on the assumption that the Supreme Court ’ s judgment must be understood to mean that had the applicant company removed the comments without delay after publication, this would have sufficed for it to escape liability under domestic law. Consequently, and taking account of the above findings (see paragraph 145 ) to the effect that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal, the Court does not consider that the imposition on the applicant company of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, and were thus clearly unlawful on their face, amounted, in principle, to a disproportionate interference with its freedom of expression.", "154. The pertinent issue in the present case is whether the national court ’ s findings that liability was justified, as the applicant company had not removed the comments without delay after publication, were based on relevant and sufficient grounds. With this in mind, account must first be taken of whether the applicant company had put in place mechanisms that were capable of filtering comments amounting to hate speech or speech entailing an incitement to violence.", "155. The Court notes that the applicant company took certain measures in this regard. There was a disclaimer on the Delfi news portal stating that the writers of the comments – and not the applicant company – were accountable for them, and that the posting of comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities, was prohibited. Furthermore, the portal had an automatic system of deletion of comments based on stems of certain vulgar words and it had a notice-and-take-down system in place, whereby anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose to bring it to the attention of the portal administrators. In addition, on some occasions the administrators removed inappropriate comments on their own initiative.", "156. Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention (see paragraph 136 above). The Court notes that as a consequence of this failure of the filtering mechanism these clearly unlawful comments remained online for six weeks (see paragraphs 18 -19 above).", "157. The Court observes in this connection that on some occasions the portal administrators did remove inappropriate comments on their own initiative and that, apparently some time after the events of the present case, the applicant company set up a dedicated team of moderators. Having regard to the fact that there are ample opportunities for anyone to make his or her voice heard on the Internet, the Court considers that a large news portal ’ s obligation to take effective measures to limit the dissemination of hate speech and speech inciting violence – the issue in the present case – can by no means be equated to “ private censorship ”. While acknowledging the “ important role ” played by the Internet “ in enhancing the public ’ s access to news and facilitating the dissemination of information in general ” ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ), the Court reiterates that it is also mindful of the risk of harm posed by content and communications on the Internet (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63; see also Mosley, cited above, § 130).", "158. Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.", "159. Lastly, the Court observes that the applicant company has argued (see paragraph 78 above) that the Court should have due regard to the notice-and-take-down system that it had introduced. If accompanied by effective procedures allowing for rapid response, this system can in the Court ’ s view function in many cases as an appropriate tool for balancing the rights and interests of all those involved. However, in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court ’ s case-law (see paragraph 136 above), the Court considers, as stated above (see paragraph 153 ), that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties.", "(v) Consequences for the applicant company", "160. Finally, turning to the question of consequences of the domestic proceedings for the applicant company, the Court notes that it was obliged to pay the injured person the equivalent of EUR 320 in compensation for non-pecuniary damage. It agrees with the finding of the Chamber that this sum, also taking into account the fact that the applicant company was a professional operator of one of the largest Internet news portals in Estonia, can by no means be considered disproportionate to the breach established by the domestic courts (see paragraph 93 of the Chamber judgment). The Court notes in this connection that it has also had regard to the post- Delfi domestic case-law on the liability of the operators of Internet news portals (see paragraph 43 above). It observes that in these cases the lower courts have followed the Supreme Court ’ s judgment in Delfi but no awards have been made for non-pecuniary damage. In other words, the tangible result for the operators in post- Delfi cases has been that they have taken down the offending comments but have not been ordered to pay compensation for non-pecuniary damage.", "161. The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia ’ s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company ’ s freedom of expression was disproportionate on that account either.", "(vi) Conclusion", "162. Based on the concrete assessment of the above aspects, taking into account the reasoning of the Supreme Court in the present case, in particular the extreme nature of the comments in question, the fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction imposed on the applicant company, the Court finds that the domestic courts ’ imposition of liability on the applicant company was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company ’ s right to freedom of expression.", "Accordingly, there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in Lithuania in 1980 and lives in Ljubljana, Slovenia.", "7. The applicant left Lithuania for Slovenia on 2 March 2002.", "8. On 13 March 2002 at 10.43 a.m. the applicant was arrested on suspicion of being involved in a robbery at the Radovljica branch of Gorenjska Bank.", "9. The robbery had taken place at 9.30 a.m. on the same day. It had involved four men, while three others had assisted in its organisation. The four robbers wore masks. One of them carried a handgun and waited at the entrance, holding three clients at gunpoint. The others jumped over the counter and overpowered two bank employees while one of the robbers emptied the tills. After taking the money, the robbers fled by car towards the railway station. Informed of the bank robbery, the police searched the area. They discovered an abandoned car in nearby woods and soon after saw four men, including the applicant, running away. One of the men, later recognised as A.V., was seen carrying a bag, which he dropped when the police officers approached. The bag was found to contain some of the money stolen from the bank, a handgun and two masks. One of the masks had biological traces belonging to the applicant and another man (E.B.).", "10. All four men were arrested and were later identified as the applicant, A.V., M.K. and E.B. They were all Lithuanian nationals.", "11. At 2 p.m. on the same day, 13 March 2002, the applicant was taken into police custody. It appears from the decision authorising that measure that the applicant, at the time “an unidentified person”, was immediately informed, in Russian, of the reasons for his arrest, and his right to remain silent, to request a lawyer and to have family members informed of his arrest. It can also be seen from this decision that a registered interpreter, A.G., interpreted for him from and into Russian and that the applicant did not request a lawyer. The decision was notified to the applicant at 5.20 p.m. He refused to sign a document acknowledging receipt of that decision, without providing any reasons for his refusal.", "12. On the same day three other Lithuanian nationals, L.K., N.U. and G.V., were arrested on suspicion of aiding and abetting the robbery.", "13. On 15 March 2002 the applicant and six other suspects were questioned by the investigating judge of Kranj District Court. The judge informed the applicant of the charges against him, his right not to incriminate himself and his right to remain silent, and also his right to be assisted by a lawyer of his own choosing. As the applicant did not appoint a lawyer, the court assigned D.V. as counsel. During the proceedings, interpreting into Russian and from Russian into Slovenian was provided by A.G. According to the record of the questioning, when asked whether he understood his rights and agreed to the appointment of counsel, the applicant started to cry. The excerpt containing the applicant ’ s statement reads as follows:", "“I say that I have a young child. This child will have nothing to eat because our situation is very difficult. I have always worked; I have never done anything like this. I came to Slovenia because I wanted a job.", "I want to see my child.", "When asked when I came to Slovenia, I say that I do not remember.", "When asked if he can describe the robbery, the accused is silent and does not answer.", "When asked whether I am ready to give my personal data, I state that I was born in Lithuania and that my name is Danas.", "I say that I will not provide my family name because I am ashamed.", "When asked, why I am ashamed, I say that I am scared. I am scared that I will never see my child again. What have I done?", "When asked what he has done to make him scared he will not to see his child again, the accused does not answer, instead he starts crying more.", "When asked by the public prosecutor whether I would answer any more questions, I say no.", "When asked whether I would answer questions from my counsel, I nod and say yes.", "When asked how old I am and whether I have children, I answer that I am 21 and have one child, who means the whole world to me.", "When asked what circumstances I live in, I say that it is very difficult in Lithuania. The circumstances are difficult. I have no job and no money.", "When asked how long I have been in Slovenia, I say that I do not know exactly. I think that it has been about a week and a half.", "When asked who he arrived in Slovenia with, the accused responds by crying.", "There are no other questions for the accused.", "When asked whether anyone should be informed about the detention, I say that I do not have any relatives, and I do not know where my wife and child are currently.", "The defence is hereby concluded.”", "14. Another suspect, A.V., described the robbery and the events leading up to it when questioned by the investigating judge. He explained that he and the applicant had travelled to Slovenia together. They had met L.K., who had approached them in a fast-food restaurant when he had heard them speaking Russian. They had gone with him to Bled and met M.K., E.B., N.U. and G.V. a few days before the robbery. After running out of money, they had decided to rob the bank in question.", "15. During the questioning of the applicant by the investigating judge, the applicant ’ s counsel set out reasons for opposing the continuation of the applicant ’ s detention. The applicant stated on record that he agreed with what had been said by his counsel.", "16. Following the questioning, the investigating judge ordered the detention of all seven suspects. The decision was translated into Russian and notified to the applicant on 18 March 2002. His counsel appealed against that decision, and also against the subsequent prolongations of the applicant ’ s detention, but was unsuccessful.", "17. On the day of the above-mentioned questioning, 15 March 2002, the investigating judge gave permission for the interpreter A.G. to visit the applicant and some of his co-accused in order to assist them in their consultations with their counsel.", "18. A decision opening a judicial investigation against the seven suspects was issued on 26 March 2002 but was quashed on appeal by a panel of three judges. The judges found that although the details of the allegations against the suspects had been provided in the detention orders, they should also have been fully included in the decision to open an investigation.", "19. The questioning of witnesses took place on 2, 3 and 4 April 2002. The applicant and the other six suspects were informed in Russian about their right to attend the questioning. The applicant did not attend those sessions, but his counsel attended them all. The transcripts of the witness statements were translated into Russian and given to the applicant on 19 April 2002.", "20. On 8 April 2002 a new decision opening a judicial investigation against the seven accused was issued. It was later challenged unsuccessfully on appeal. The decision was translated into Russian and notified to the applicant on 10 April 2002. On the same day a remand hearing was held at which the applicant, with the assistance of the interpreter A.G., stated that he could not leave the country as he had no passport, that he wanted to wait until the proceedings were over and that he agreed with what had been said by his counsel at the hearing.", "21. On 11 April 2002 A.G. informed the Kranj District Court that all the defendants had requested that the transcripts of the witness statements be translated into Russian.", "22. On 12 April 2002 the investigating judge decided that the statements given by the suspects to the police should be excluded from the case file as the court could not rely on them. The decision was translated into Russian and notified to the applicant on 16 April 2002.", "23. On 17 April 2002 an identification parade was organised and one witness identified the applicant as a person who had visited the bank two days before the robbery.", "24. On 28 May 2002 the district prosecutor lodged an indictment, charging the applicant, A.V., M.K. and E.B. with robbery, one count of theft of a motor vehicle and two counts of attempted theft of a motor vehicle. L.K., N.U. and G.V. were charged with aiding and abetting the robbery. The indictment was translated into Russian and challenged unsuccessfully by the applicant ’ s counsel.", "25. On 10 and 11 July 2002 the Kranj District Court held a hearing at which two Russian interpreters were present. The record of the hearing shows that the charges were read out to the defendants, who were also notified of their right not to incriminate themselves and their right to remain silent. The transcript reads as follows:", "“we, the defendants, state that we understand the content of the charges.", "...", "we, the defendants, understand the notification of our rights.”", "26. At the hearing A.V. changed his statement and claimed that a man had offered to find work for him and the applicant. Once they had given him their passports, he had demanded that they take part in the robbery. The applicant had, according to A.V. ’ s latest account, been too scared to participate, so they had left him in the woods to wait for them. The applicant gave a similar account of events, claiming that he had not been among those who had robbed the bank but had waited for their return in the woods. According to the record of the hearing, the applicant answered questions from the district prosecutor, the presiding judge, his own counsel and counsel for one of his co-defendants.", "27. In addition to questioning the defendants, the court also examined a number of witnesses. It can be seen from the record of the hearing that the applicant had trouble with the interpreting of one of the witness statements and could only understand it when he read it. He put questions to the witnesses and commented on witness statements about the height of the robbers, and on police officers ’ statements concerning mobile telephones they had seized and the number of people who had fled the scene of the robbery. He also referred to the indictment and commented on allegations about the whereabouts of the stolen money.", "28. On 12 July 2002 the applicant ’ s partner was given permission to visit him in Ljubljana Prison.", "29. On 16 July 2002 a hearing was held at which the defendants gave closing statements. The transcript includes the following record of the applicant ’ s statement:", "“I agree with what has been said by my defence counsel. There is no evidence that I robbed the bank. The only evidence against me is the hair found in the cap, but I have already explained about the hair in the cap and why that cap happened to be on my head. Two men cannot be in a bank wearing the same cap. A person cannot be forced into something like that; nobody forced me. I was not in the bank.", "...", "I am sad that you consider me to be an offender; you can only sentence me for what I actually did and not for what I did not do. I ask that account be taken of my family situation and that I be sentenced accordingly, but not to imprisonment.”", "30. On 16 July 2002 a five-member bench of the Kranj District Court convicted the applicant, A.V., M.K. and E.B. of robbery and acquisition of unlawfully gained property (a stolen car). The applicant and M.K. were sentenced to eight years and four months in prison, E.B. received a sentence of eight years and seven months, while A.V. was sentenced to five years and four months in prison. L.K., N.U. and G.V. were found guilty of aiding and abetting the robbery and sentenced to five years ’ imprisonment.", "31. The judgment contains about twenty pages of reasoning in which the court also responded to arguments relating to the use of Slovenian or Croatian during the robbery. The court noted that not many words had been spoken during the robbery, that all four defendants charged with robbery spoke Russian and were for that reason assisted by Russian interpreters, that they also knew some words in Slovenian as demonstrated during the hearing and that they could have intentionally used words resembling Slovenian.", "32. On the same day, the applicant ’ s detention was extended. The written decision with a Russian translation were notified to the applicant on the following day.", "33. On 2 August 2002 the judgment with a translation into Russian were also notified to the applicant.", "34. On 6 August 2002 the applicant ’ s counsel appealed against the District Court ’ s judgment. He complained about alleged shortcomings in the police investigation, the assessment of evidence and his client ’ s sentence, but did not raise any complaint regarding the applicant ’ s understanding of the Russian interpreting provided to him.", "35. On the same day the applicant also lodged an appeal, which was composed of five pages of argument written by hand in Slovenian with the assistance of fellow inmates. The applicant complained about the first-instance court ’ s assessment of the evidence and about his sentence. He maintained that he had known about the robbery but had not taken part in it.", "36. On 14 November 2002 the Ljubljana Higher Court dismissed the applicant ’ s appeal. It found that A.V. had given a detailed and incriminating description, while having legal assistance, that the applicant had been assisted by counsel who had been appointed for him and by an interpreter at his first appearance before the investigating judge, and that there was no indication that the applicant had not been informed when arrested of the reasons for his arrest in a language he had understood. The court was of the view that if the applicant had not understood the reasons for his arrest he would have mentioned it during his questioning by the investigating judge. The applicant was issued with a Russian translation of the judgment, by which his conviction acquired the force of res judicata.", "37. On 23 February 2003 the applicant sent an application entitled “an appeal to the Supreme Court” to the Kranj District Court. The application was written in Lithuanian, with the exception of an introductory explanation in Slovenian, in which the applicant informed the court that he spoke neither Russian nor Slovenian, adding that he understood a little Russian but could not write in it. In the rest of the document the applicant complained about the assessment of the evidence by the lower courts and alleged that his right to use his own language in the criminal trial had been violated. He also alleged that during his first questioning he had not been represented by counsel or provided with an interpreter. Thus, he had not understood the reasons for his arrest. He also submitted that he had stated at the hearing that he did not understand Russian very well. Despite those issues, the Kranj District Court had not provided him with a Lithuanian interpreter.", "38. On 24 March 2003 the Kranj District Court instructed the applicant to submit his appeal, which it treated as an application for the protection of legality (an extraordinary remedy by which to challenge the legality of final decisions ), in Russian, finding that he had used that language throughout the criminal proceedings and in communication with his counsel. It appears from the Constitutional Court ’ s decision of 24 March 2005 (see paragraph 41 below) that the Kranj District Court had ordered that the appeal be drafted in Russian after ascertaining that there were no Lithuanian interpreters registered in Slovenia and that translation from that language would therefore have required the assistance of the nearest Lithuanian Embassy. The letter instructing the applicant to submit his application in Russian, and a Russian translation of that letter, were notified to the applicant on 4 April 2003. As the applicant did not reply, on 29 April 2003 the District Court rejected his application as incomprehensible. The decision and a Russian translation were notified to the applicant on 21 May 2003.", "39. On 20 August 2004 the applicant lodged a constitutional complaint against that decision, alleging that the Kranj District Court had violated his defence rights and his right to use his own language and script. He explained that he could not speak or understand Russian very well, and in particular was not able to read decisions and other documents in Russian owing to the different characters, and that he had thus been prevented from effectively defending himself. His constitutional complaint and additional submissions were handwritten in Slovenian. In the proceedings before the Constitutional Court, the Kranj District Court replied to the applicant ’ s allegations, submitting that he had at no time stated that he had trouble understanding Russian.", "40. On 30 November 2004 the applicant sent a letter to the Ministry of Justice, written in Slovenian, asking for an explanation as to why he had not had a Lithuanian interpreter at his trial. The letter was forwarded to the Kranj District Court. It replied on 28 December 2004, explaining that the applicant had used Russian to communicate with the court and with his counsel at all stages of the first-instance proceedings.", "41. On 24 March 2005 the Constitutional Court delivered its decision. It observed that the applicant ’ s situation was an exceptional one, in that he was not required to properly exhaust remedies in respect of the Kranj District Court ’ s decision. In its view, the applicant, who was detained at the time, could not have been expected to challenge the impugned decision by means of a standard appeal as he had stated that he could not understand the language in which the decision had been written. The Constitutional Court went on to examine the complaint on the merits, finding in favour of the applicant. It noted that the law afforded special protection to a defendant ’ s right to use his or her own language and script after detention. The person ’ s own language would in principle be his or her mother tongue but, if the person had a command of another language, the use of the latter could suffice for oral communication in the proceedings. However, the Constitutional Court rejected the District Court ’ s view that a defendant who was in custody and who had used a certain language in oral proceedings should also submit written submissions in that language, finding that written communication required a higher level of language proficiency. The Constitutional Court noted that the applicant had been assisted by a Russian interpreter in the first-instance proceedings, which had mainly involved oral communication. After an appeal, proceedings were typically in writing and the accused no longer benefited from the assistance of court-appointed counsel. The Constitutional Court therefore found that the applicant, who had explained in his submissions to the Supreme Court that he could not write in Russian, should be allowed to submit them in his own language. It therefore concluded that the court below had violated the applicant ’ s right to use his own language in the proceedings, as explicitly provided for by section 8 of the Criminal Procedure Act and as guaranteed by Article 62 of the Constitution. It annulled the Kranj District Court ’ s decision of 29 April 2003 (see paragraph 38 above) and remitted the applicant ’ s application for the protection of legality for fresh consideration.", "42. In the remitted proceedings, the Kranj District Court obtained a Slovenian translation of the applicant ’ s application for the protection of legality and referred it to the Supreme Court.", "43. On 26 January 2006 the Supreme Court dismissed the applicant ’ s application for the protection of legality as unfounded. The Supreme Court established on the basis of the case file that immediately after placing the applicant in police custody, the police had informed him, with the assistance of the Russian interpreter, of the reasons for his arrest and his right to a lawyer. When questioned by the investigating judge, the applicant had also been assisted by the Russian interpreter and his court-appointed counsel. The Supreme Court found that there was no indication in the file that the applicant had been informed of his right to use his own language in the proceedings, either by the investigating judge or by the Kranj District Court. It also found no indication that the applicant had given any statement concerning that right. However, the lack of such notification, did not, in the Supreme Court ’ s view, undermine the legality of the final judgment, because the applicant had been assisted by a Russian interpreter and by counsel. The record of the hearing had contained no indication that he did not understand Russian. Moreover, the court noted that neither the applicant nor his counsel had raised any issue of a lack of understanding of Russian. The applicant was issued with an original copy of the Supreme Court ’ s judgment and a Lithuanian translation.", "44. On 10 June 2006 the applicant lodged a constitutional complaint against the Supreme Court ’ s judgment, complaining that, while he had a rough understanding of Russian, he could not defend himself orally in that language, let alone in writing. In particular, he alleged that he had not been afforded an opportunity to defend himself in a language that would allow him to clarify the facts of the case and to respond effectively to the charges. He alleged that he had drawn the court ’ s attention to that fact but that his remark had not been recorded. In addition, the applicant complained that certain documents submitted in evidence had been in Slovenian and had therefore been incomprehensible to him, thus hindering his defence.", "45. On 1 September 2007 the applicant was released on parole.", "46. On 3 July 2008 the Constitutional Court dismissed ( zavrne ) the applicant ’ s constitutional complaint. It observed, inter alia, as follows:", "“All the complaints relate to the proceedings before the first-instance court. From the questioning by the investigating judge until the end of the trial, including during the appeal proceedings, the applicant was represented by counsel with whom he succeeded in communicating in Russian (that fact was not disputed by the applicant in his constitutional complaint ). In his appeal against the first-instance court ’ s judgment, the applicant did not mention the issues raised in the constitutional complaint but instead complained about police procedure, which is not a matter complained of in the constitutional proceedings. Only in his request for the protection of legality, lodged in his own language, and in his constitutional complaint, did the applicant complain of a breach of his right under Article 62 of the Constitution owing to the conduct of the District Court, which had ignored his remarks about his trouble understanding Russian ...", "Having regard to the foregoing and to the content of the constitutional complaint, the Constitutional Court examined whether the Supreme Court ’ s view ... violated the applicant ’ s right to use his own language provided for in Article 62 of the Constitution and whether there had been a breach of his defence rights under the first line of Article 29 of the Constitution.", "...", "In accordance with section 8 of the Criminal Procedure Act, a court should inform a suspect or accused of the right to use his own language. The notification and the statement of the suspect or accused should be recorded in the hearing transcript in its entirety. The omission of such a notification or a lack of record of such a notification or statement can give rise to a material breach of the rules of criminal procedure under paragraph 2 of section 371 of the Criminal Procedure Act (that is, if such a violation affected his ability to defend himself). However, if the court acts contrary to an explicit request of a suspect or accused to use his own language and to follow the hearing in that language, the court commits a material breach of the rules of criminal procedure in an absolute sense under paragraph 1 of section 371 of the Criminal Procedure Act.", "In the reasoning of the judgment [the Supreme Court] noted that there was no indication in the record of the hearing that the applicant had mentioned that he had not understood Russian or that he or his counsel had requested the use of the applicant ’ s native language at the hearing. Nor had the latter issue been raised in the application for the protection of legality. ... The allegation that the court had failed to include the applicant ’ s statement in the record of the hearing was made for the first time in the constitutional complaint. The Supreme Court convincingly established circumstances that show that the applicant understood Russian well enough to receive a fair hearing using that language ... When considering the right to a fair trial it is important to note (and this also the Constitutional Court ’ s view) that in his application for the protection of legality the applicant did not raise a complaint that he had not been informed of his right to use his native language. Nor did he complain of that in his constitutional complaint.", "... The impugned judgments therefore do not violate the right of the applicant guaranteed in Article 62 of the Constitution ... Having regard to the above findings and the fact that throughout the proceedings the applicant was assisted by counsel with whom he succeeded in communicating, his complaint that his defence rights guaranteed by Article 29 [of the Constitution] had been violated must likewise be dismissed.", "The complaint that some of the evidence in the proceedings was in Slovenian, thus preventing him from familiarising himself with it and defending himself, was not pursued in the proceedings before the lower courts. He has therefore failed to exhaust remedies in that regard ...”", "47. The fees declared at the end of the trial by the interpreter and the applicant ’ s counsel, and paid for by the State, show that various services were provided to the applicant. Apart from interpreting during the investigation and court hearings, and the written translation of documents, A.G. took part in certain meetings between the applicant and his counsel. The lawyer visited the applicant in the remand prison for consultation purposes on 8 April ( forty-five minutes), 2 August ( thirty minutes) and 13 September 2002 ( twenty minutes), assisted by A.G., as well as on 9 July 2002 ( twenty-five minutes), though it is not clear whether on the latter occasion A.G. was present. The lawyer also assisted the applicant during his court appearances. He also lodged applications for remedies on his client ’ s behalf in the proceedings at first and second instance." ]

[ "II. RELEVANT LEGAL MATERIAL", "A. Domestic law", "1. The Constitution of the Republic of Slovenia", "48. The relevant provisions of the Constitution of the Republic of Slovenia read as follows:", "Article 29", "(Legal Safeguards in Criminal Proceedings)", "“Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights:", "the right to have adequate time and facilities to prepare his defence;", "the right to be present at his trial and to conduct his own defence or to be defended by a legal representative;", "the right to present all the evidence that is to his benefit;", "the right not to incriminate himself or his relatives or those close to him, or to admit his guilt.”", "Article 62", "(Right to Use One ’ s Own Language and Script)", "“Everyone has the right to use his own language and script as provided by law in the exercise of his rights and duties and in procedures before State and other authorities performing a public function.”", "2. Criminal Procedure Act", "(a) Use of languages in criminal proceedings", "49. The relevant provisions of the Criminal Procedure Act (Official Gazette no. 63/94 with the relevant amendments) governing the use of languages in criminal proceedings read as follows:", "Section 4", "“(1) Any arrested person shall be advised immediately, in his native language or in a language he understands, of the reasons for his arrest. An arrested person shall immediately be instructed that he is not bound to make any statements, that he is entitled to the legal assistance of counsel of his own choosing and that the competent body is bound to inform his immediate family of his arrest at his request.", "...", "Section 7", "(1) Charges, appeals and other submissions shall be filed with the court in the Slovenian language.", "...", "(3) A foreigner who has been deprived of his freedom shall have the right to file submissions with the court in his own language; in other cases foreign subjects shall be allowed to file submissions in their own language solely on the condition of reciprocity.”", "Section 8", "“(1) Parties, witnesses and other participants in the proceedings shall have the right to use their own languages in investigative and other judicial actions and at the main hearing. If a judicial action or the main hearing is not conducted in the language of those persons, an oral translation of their statements and of the statements of others, and a translation of documents and other written evidence, must be provided.", "(2) Persons referred to in the preceding paragraph shall be informed of their right to have oral statements and written documents and evidence translated for them; they may waive their rights to translation if they know the language in which the proceedings are being conducted. The fact that they have been informed of their right, as well as their statements in that regard, should be placed on record.", "(3) Translations shall be done by a court interpreter.”", "(b) Grounds of appeal", "50. The relevant provision of the Criminal Procedure Act concerning grounds of appeal reads as follows:", "Section 371", "“(1) A material breach of the provisions of criminal procedure shall be deemed to exist:", "...", "3) ... where the defendant, counsel, the injured party acting as prosecutor or the private prosecutor was, notwithstanding his request, deprived of his right to use his own language during investigative or other court actions or at the main hearing and his right to follow the proceedings in that language ( section 8) ...;", "...", "(2) A material breach of the provisions of criminal procedure shall also be deemed to exist if in preparation for a hearing or in the course of a hearing or in giving judgment the court omitted to apply a provision of this Act or applied it incorrectly, or if in the course of the hearing the court violated the rights of the defence, such that the act or omission influenced or might have influenced the legality and regularity of the judgment.”", "B. European Union instruments", "51. The Charter of Fundamental Rights of the European Union (“the Charter”) enshrines the right to a fair trial (Article 47) and respect for the rights of the defence (Article 48(2)).", "52. On 30 November 2009 the Council of the European Union adopted a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (“the Roadmap”). The Roadmap gave rise to Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (“Directive 2010/64/EU ”). Directive 2010/64/EU lays down common minimum rules to be applied within the European Union for the purposes of interpretation and translation in criminal proceedings and in proceedings for the execution of the European arrest warrant. It came into force on 15 November 2010.", "53. The following recitals of Directive 2010/64/EU are relevant:", "“ ...", "(7) Strengthening mutual trust requires a more consistent implementation of the rights and guarantees set out in Article 6 of the ECHR. It also requires, by means of this Directive and other measures, further development within the Union of the minimum standards set out in the ECHR and the Charter.", "...", "(9) Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be established in the fields of interpretation and translation in criminal proceedings.", "...", "(14) The right to interpretation and translation for those who do not speak or understand the language of the proceedings is enshrined in Article 6 of the ECHR, as interpreted in the case-law of the European Court of Human Rights. This Directive facilitates the application of that right in practice. To that end, the aim of this Directive is to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings with a view to ensuring their right to a fair trial.", "...", "(17) This Directive should ensure that there is free and adequate linguistic assistance, allowing suspected or accused persons who do not speak or understand the language of the criminal proceedings fully to exercise their right of defence and safeguarding the fairness of the proceedings.", "...", "(19) Communication between suspected or accused persons and their legal counsel should be interpreted in accordance with this Directive. Suspected or accused persons should be able, inter alia, to explain their version of the events to their legal counsel, point out any statements with which they disagree and make their legal counsel aware of any facts that should be put forward in their defence.", "...", "(21) Member States should ensure that there is a procedure or mechanism in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. Such procedure or mechanism implies that competent authorities verify in any appropriate manner, including by consulting the suspected or accused persons concerned, whether they speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter.", "(22) Interpretation and translation under this Directive should be provided in the native language of the suspected or accused persons or in any other language that they speak or understand in order to allow them fully to exercise their right of defence, and in order to safeguard the fairness of the proceedings.", "...", "(24) Member States should ensure that control can be exercised over the adequacy of the interpretation and translation provided when the competent authorities have been put on notice in a given case.", "...", "(30) Safeguarding the fairness of the proceedings requires that essential documents, or at least the relevant passages of such documents, be translated for the benefit of suspected or accused persons in accordance with this Directive. Certain documents should always be considered essential for that purpose and should therefore be translated, such as any decision depriving a person of his liberty, any charge or indictment, and any judgment. It is for the competent authorities of the Member States to decide, on their own motion or upon a request of suspected or accused persons or of their legal counsel, which other documents are essential to safeguard the fairness of the proceedings and should therefore be translated as well.", "...", "(32) This Directive should set minimum rules. Member States should be able to extend the rights set out in this Directive in order to provide a higher level of protection also in situations not explicitly dealt with in this Directive. The level of protection should never fall below the standards provided by the ECHR or the Charter as interpreted in the case-law of the European Court of Human Rights or the Court of Justice of the European Union.", "(33) The provisions of this Directive that correspond to rights guaranteed by the ECHR or the Charter should be interpreted and implemented consistently with those rights, as interpreted in the relevant case-law of the European Court of Human Rights and the Court of Justice of the European Union.”", "54. Article 2 of Directive 2010/64/EU reads, in its relevant part, as follows:", "Right to interpretation", "“1. Member States shall ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings.", "2. Member States shall ensure that, where necessary for the purpose of safeguarding the fairness of the proceedings, interpretation is available for communication between suspected or accused persons and their legal counsel in direct connection with any questioning or hearing during the proceedings or with the lodging of an appeal or other procedural applications.", "...", "4. Member States shall ensure that a procedure or mechanism is in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter.", "5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for interpretation and, when interpretation has been provided, the possibility to complain that the quality of the interpretation is not sufficient to safeguard the fairness of the proceedings.", "...", "8. Interpretation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.”", "55. Article 3 of Directive 2010/64/EU reads, in its relevant part, as follows:", "Right to translation of essential documents", "“1. Member States shall ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their right of defence and to safeguard the fairness of the proceedings.", "2. Essential documents shall include any decision depriving a person of his liberty, any charge or indictment, and any judgment.", "...", "5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for the translation of documents or passages thereof and, when a translation has been provided, the possibility to complain that the quality of the translation is not sufficient to safeguard the fairness of the proceedings.", "...", "7. As an exception to the general rules established in paragraphs 1, 2, 3 and 6, an oral translation or oral summary of essential documents may be provided instead of a written translation on condition that such oral translation or oral summary does not prejudice the fairness of the proceedings.", "9. Translation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.”", "56. Article 5 § 1 of Directive 2010/64/EU deals with the quality of interpretation and translation, providing as follows:", "“1. Member States shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under Article 2(8) and Article 3(9).”", "57. Furthermore, Article 7 of Directive 2010/64/EU reads :", "Record-keeping", "“Member States shall ensure that when a suspected or accused person has been subject to questioning or hearings by an investigative or judicial authority with the assistance of an interpreter pursuant to Article 2, when an oral translation or oral summary of essential documents has been provided in the presence of such an authority pursuant to Article 3(7), or when a person has waived the right to translation pursuant to Article 3(8), it will be noted that these events have occurred, using the recording procedure in accordance with the law of the Member State concerned.”", "58. On 22 May 2012 the European Parliament and the Council of the European Union adopted another directive relating to the measures set out in the Roadmap, namely Directive 2012/13/EU on the right to information in criminal proceedings (“Directive 2012/13/EU ”). It entered into force on 21 June 2012.", "59. The following recitals of Directive 2012/13/EU are relevant:", "“ (25) Member States should ensure that, when providing information in accordance with this Directive, suspects or accused persons are provided, where necessary, with translations or interpretation into a language that they understand, in accordance with the standards set out in Directive 2010/64/EU.", "...", "(35) Where information is provided in accordance with this Directive, the competent authorities should take note of this in accordance with existing recording procedures under national law and should not be subject to any additional obligation to introduce new mechanisms or to any additional administrative burden.", "(36) Suspects or accused persons or their lawyers should have the right to challenge, in accordance with national law, the possible failure or refusal of the competent authorities to provide information or to disclose certain materials of the case in accordance with this Directive. That right does not entail the obligation for Member States to provide for a specific appeal procedure, a separate mechanism, or a complaint procedure in which such failure or refusal may be challenged.", "...", "(38) Member States should undertake all the necessary action to comply with this Directive. A practical and effective implementation of some of the provisions such as the obligation to provide suspects or accused persons with information about their rights in simple and accessible language could be achieved by different means including non-legislative measures such as appropriate training for the competent authorities or by a Letter of Rights drafted in simple and non-technical language so as to be easily understood by a lay person without any knowledge of criminal procedural law. ”", "60. The relevant parts of Articles 3, 4 and 8 of Directive 2012/13/EU provide as follows:", "Article 3", "Right to information about rights", "“1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:", "(a) the right of access to a lawyer;", "(b) any entitlement to free legal advice and the conditions for obtaining such advice;", "(c) the right to be informed of the accusation, in accordance with Article 6;", "(d) the right to interpretation and translation;", "(e) the right to remain silent.", "2. Member States shall ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons. ”", "Article 4", "Letter of Rights on arrest", "“ 1. Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights. They shall be given an opportunity to read the Letter of Rights and shall be allowed to keep it in their possession throughout the time that they are deprived of liberty.", "...", "5. Member States shall ensure that suspects or accused persons receive the Letter of Rights written in a language that they understand. Where a Letter of Rights is not available in the appropriate language, suspects or accused persons shall be informed of their rights orally in a language that they understand. A Letter of Rights in a language that they understand shall then be given to them without undue delay. ”", "Article 8", "Verification and remedies", "“ 1. Member States shall ensure that when information is provided to suspects or accused persons in accordance with Articles 3 to 6 this is noted using the recording procedure specified in the law of the Member State concerned.", "2. Member States shall ensure that suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in accordance with this Directive. ”", "61. Both of the aforementioned directives were incorporated into the Slovenian legal system by means of an amendment to the Criminal Procedure Act (Official Gazette, no. 87/2014), which was passed on 21 November 2014 and became applicable as of 20 March 2015.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION AS REGARDS THE ALLEGED DENIAL OF THE APPLICANT ’ S RIGHT TO USE A LANGUAGE OF WHICH HE HAD A SUFFICIENT COMMAND", "62. The applicant complained that his right to a fair trial had been violated because he had not understood the language of the proceedings or the interpreting provided to him. He relied on Article 6 §§ 1 and 3 of the Convention of which the relevant parts read as follows:", "Article 6", "“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...", "...", "3. Everyone charged with a criminal offence has the following minimum rights:", "(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;", "...", "(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”", "A. Admissibility", "63. The Government argued that the applicant had failed to exhaust domestic remedies. They submitted that the applicant had not raised the substance of his complaint before the relevant national authorities. In particular, the applicant and his counsel, about whom the applicant had never complained at the domestic level, could have raised the issue of the inadequacy of the Russian interpreting or requested that another language be used, but had not done so during the questioning by the investigating judge, at any other time during the trial, or in their written submissions. The applicant ’ s complaint that he was not able to understand the script in which the translation of written documents had been provided to him had also been raised out of time.", "64. The applicant disputed the Government ’ s allegations. He submitted that he should not be accused of not properly raising his complaints with the authorities and that he had in fact complained in his native language but had not been understood.", "65. In the Court ’ s view, the Government ’ s preliminary objection that the applicant had failed to exhaust domestic remedies is so closely linked to the substance of his complaint that it should be joined to the merits of the case.", "66. The Court further finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible having been established, it must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "67. That applicant alleged that he should have been able to use his native language, Lithuanian, as that had been the only way he could have defended himself effectively in the criminal proceedings. He argued that his knowledge of Russian had been weak and that he had not understood the translation of the documents as he had not been able to read Russian. No enquiry into his proficiency in Russian had been made during the proceedings against him, in breach of the State ’ s positive obligation under the Convention. He further argued that the burden of providing an explanation for the lack of translation and interpretation into his native language should be on the Government. In particular, the Government should justify their assumption that he understood Russian, a language quite different in its spoken form, and entirely different in its written form, from Lithuanian. He also stated that he had never studied Russian.", "68. In reply to the Government ’ s argument regarding his participation in the trial, the applicant maintained that this might have been merely an appearance. The applicant referred to Şaman v. Turkey (no. 35292/05, 5 April 2011) and Baytar v. Turkey (no. 45440/04, 14 October 2014) in that connection. As regards the fact that he had signed the record of the hearings, he maintained that he had not known what he was signing.", "69. The applicant submitted in his application to the Court that he had, a number of times during the trial, complained of having trouble understanding the language being spoken, but since he had made his complaints in Lithuanian no one had understood them. In replying to the Government ’ s arguments, the applicant disputed the idea that the authorities should have been formally put on notice regarding his difficulties. In that connection he submitted that he had found himself detained in a foreign country in criminal proceedings which had been swiftly concluded, namely at first instance within five months, and he had therefore not been in a position to complain at the national level. The applicant argued that the fact that he had not made a complaint, as established by the Constitutional Court and the Supreme Court, should itself be considered as a consequence of the breach of Articles 5 § 2 and 6 §§ 1 and 3 (a) and (e) of the Convention. He pointed out that the national court should be the ultimate guardian of the fairness of the proceedings, especially as his counsel had been appointed by a court.", "(b) The Government", "70. The Government argued that neither the applicant nor his counsel had made any remarks about the appointment of the Russian interpreter during the investigation, at the hearings or on appeal. The first time the applicant had raised the issue of language had been in his application for the protection of legality, after his conviction had become final. The first time he had submitted that the trial court had failed to place on record his alleged complaint concerning the language used had been in his constitutional complaint. As regards his understanding of the written documents, the Government pointed out that the applicant and other co-defendants had asked for the written translation to be in Russian (see paragraph 21 above). The applicant had lodged a complaint about that matter only in the constitutional court proceedings.", "71. As regards the applicant ’ s knowledge of Russian, the Government submitted that it was adequate and that his defence rights had not therefore been breached. In particular, the Government submitted that Russian had been an official language in Lithuania until 1990, when the country had declared its independence, and that the applicant, who had been born in 1980, must have learnt it at school. They also argued that, in any event, Russian was widely spoken in Lithuania; that the co-accused A.V. had said during questioning by the investigating judge that he and the applicant had been able to speak Russian (see paragraph 14 above); and that the applicant had demonstrated in the criminal proceedings that he had been able to follow the proceedings in Russian. The applicant had participated in the proceedings, examined witnesses, answered questions and had not complained of not being able to understand Russian, the language in which he had communicated in the proceedings. There had been one isolated incident, namely at the hearing of 11 July 2002, when he had asked for clarification of a translation (see paragraph 27 above). In sum, the Government maintained that the applicant had participated in the proceedings with the assistance of his counsel and a Russian interpreter and that if he had actually had problems in his oral or written communication he would have found a way to make his counsel or the trial court aware of them.", "(c) The third party", "72. Fair Trials International, intervening as a third party, argued that the Court should adopt a demanding approach when assessing whether national courts have discharged their duty to check the adequacy of interpretation when put on notice as to an issue in that regard. It referred to the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected and accused persons in criminal proceedings and Directive 2010/64/EU (see paragraphs 52 to 57 above). In particular, the third party argued that the failure to make a complaint at national level should by no means be regarded as determinative. In determining whether the domestic authorities had been “put on notice” such as to trigger their responsibility for any oversight, the Court should take into account any factual situation arising in the context of the national proceedings, which should be such as to alert the courts as to a possible issue with the adequacy of interpretation. It pointed out that when interpretation was provided in a language other than that of the accused, this should automatically put the authorities on notice and trigger their obligation to verify the adequacy of the interpretation. The authorities would then have to establish that the accused person had a sufficient command of the interpreting language. In this connection, it was necessary to have regard to the elements taken into account by the Court in assessing the impact of not providing interpreting for people who did not have a perfect command of the language of the proceedings, such as their linguistic knowledge, literacy and personal situation, and the complexity of the case. The national authorities were required to determine whether the accused person had a sufficient command of the third language by conducting similar checks.", "73. Mechanisms for identifying the need for interpreting should be in place in the national proceedings, and a failure by the authorities to refute an applicant ’ s complaint with positive evidence should be a valid way of establishing a breach of the Convention. In particular, the Court should hesitate before accepting an assumption based on nationality as a satisfactory manner of assessing whether the interpreting provided was adequate. The focus should instead be on the concrete steps taken to verify that it was adequate.", "74. Lastly, Fair Trials International submitted that issues such as the use of evidence obtained through inadequate interpretation and the effect the latter had on the exercise of other defence rights should be taken into account when assessing the fairness of the proceedings as a whole. If the domestic authorities failed to conduct a proper examination of the adequacy of interpretation, the Court should not speculate about the effect that inadequate interpretation might have had on the defence strategies. It should instead be prepared to conclude that the defence might have been conducted differently if proper interpreting had been provided and therefore find a violation of Article 6.", "2. The Court ’ s assessment", "( a ) General principles", "( i ) General principles concerning Article 6 § 3 (a) and (e) of the Convention", "75. Under paragraph 3 (a) of Article 6 of the Convention, any person charged with a criminal offence has the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. Whilst this provision does not specify that the relevant information should be given in writing or translated in written form for a foreign defendant, it does point to the need for special attention to be paid to the notification of the “accusation” to the defendant. An indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on notice of the factual and legal basis of the charges against him. A defendant not familiar with the language used by the court may be at a practical disadvantage if the indictment is not translated into a language which he understands (see Hermi v. Italy [GC], no. 18114/02, § 68, ECHR 2006 ‑ XII).", "76. In addition, paragraph 3 (e) of Article 6 states that every defendant has the right to the free assistance of an interpreter. That right applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings (see Hermi, cited above, § 69). As regards the pre-trial phase, the Court notes that the assistance of an interpreter, as that of a lawyer, should be provided from the investigation stage, unless it is demonstrated that there are compelling reasons to restrict this right (see Baytar, cited above, § 50, and Diallo v. Sweden (dec.), no. 13205/07, § 25, 5 January 2010).", "77. An accused who cannot understand or speak the language used in court has, therefore, the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court ’ s language in order to have the benefit of a fair trial (see Hermi, cited above, § 69).", "78. However, paragraph 3 (e) does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. In that connection, it should be noted that the text of the relevant provisions refers to an “interpreter”, not a “translator”. This suggests that oral linguistic assistance may satisfy the requirements of the Convention (see Husain v. Italy (dec.), no. 18913/03, 24 February 2005 ).", "79. The fact remains, however, that the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events ( see ibid.; Hermi, cited above, § 70; and Güngör v. Germany (dec.), no. 31540/96, 17 May 2001). The Court notes in this connection that the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation (see Kamasinski v. Austria, 19 December 1989, § 74, Series A no. 168), and Diallo, cited above, § 23).", "( ii ) Assessment of interpreting needs", "80. As regards its case-law to date, the Court observes that already in Brozicek v. Italy (19 December 1989, § 41, Series A no. 167) it indicated the need for verification of the defendant ’ s needs in terms of language assistance. In particular, it considered that the Italian authorities, which had been informed in an unequivocal manner of the applicant ’ s lack of knowledge of Italian, “ should have taken steps to comply with [his request for translation] ... unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifying him of the charges brought against him ”. Noting that there was no evidence in the file to indicate that the applicant had had sufficient knowledge of Italian, the Court found a violation of Article 6. Similarly, in Cuscani v. the United Kingdom (no. 32771/96, § 38, 24 September 2002 ), the Court took the view that after the authorities had been put on notice of the applicant ’ s inability to understand the proceedings, the verification of his need for interpretation had become a matter for the judge to determine. The Court held that the onus had been on the judge to ascertain whether the absence of an interpreter at the hearing would have prejudiced the applicant ’ s full involvement in a trial in which he had pleaded guilty. Furthermore, in Amer v. Turkey (no. 25720/02, § 83, 13 January 2009), the Court found no indication in the file as to the presence of an interpreter during the police ’ s questioning of the applicant, who claimed to have only limited knowledge of Turkish, which was the language of the proceedings. Noting that crucial evidence had been gathered during that questioning, and referring to the subsequent proceedings before the domestic court, the Court found that “ the verification of the applicant ’ s need for interpretation facilities at the time of his questioning by the police should have been a matter for the domestic courts to adequately examine with a view to reassuring themselves that the absence of an interpreter [when the applicant was] in police custody would not have prejudiced the applicant ’ s right to a fair trial ”.", "81. As shown by the above examples from the Court ’ s case-law, it is incumbent on the authorities involved in the proceedings, in particular the domestic courts, to ascertain whether the fairness of the trial requires, or has required, the appointment of an interpreter to assist the defendant. In the Court ’ s opinion, this duty is not confined to situations where the foreign defendant makes an explicit request for interpreting. In view of the prominent place held in a democratic society by the right to a fair trial ( see Hermi, cited above, § 76, and Artico v. Italy, 13 May 1980, § 33, Series A no. 37 ), it arises whenever there are reasons to suspect that the defendant is not proficient enough in the language of the proceedings, for example if he or she is neither a national nor a resident of the country in which the proceedings are being conducted. A similar duty arises when a third language is envisaged to be used for the interpreting. In such circumstances, the defendant ’ s proficiency in the third language should be ascertained before the decision is taken to use it for the purposes of interpreting.", "82. The Court further observes that the importance of verifying the defendant ’ s interpreting needs in order to ensure the right to a fair trial has been recognised also by the adoption of the European Union ’ s Directive 2010/64/EU. That Directive requires member States to ensure that a procedure or mechanism is in place to ascertain whether suspected or accused persons speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter (see paragraphs 52 to 54 above ).", "83. The Court has held on several occasions that in determining the defendant ’ s interpreting needs, the issue of his or her linguistic knowledge is vital (see, among many authorities, Hermi, cited above, § 71). It would add in this connection that the fact that the defendant has a basic command of the language of the proceedings or, as may be the case, a third language into which interpreting is readily available, should not by itself bar that individual from benefiting from interpreting into a language he or she understands well enough to fully exercise his or her defence rights. This follows from the requirement that the defendant be informed of the accusation in a language “ which he understands ” and from the requirement that the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself (see paragraph 79 above). Recital 22 of the Preamble to Directive 2010/64/EU more specifically provides that the interpretation and translation should be provided either in the native language of defendants or in any other language that they speak or understand in order to allow them fully to exercise their right of defence, and in order to safeguard the fairness of the proceedings (see paragraph 53 above).", "84. The Convention leaves Contracting States wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6 (see Sejdovic v. Italy [GC], no. 56581/00, § 83, ECHR 2006 ‑ II ). It is therefore not for the Court to set out in any detail the precise measures that should be taken by domestic authorities with a view to verifying the linguistic knowledge of a defendant who is not sufficiently proficient in the language of the proceedings. Depending on different factors, such as the nature of the offence and the communications addressed to the defendant by the domestic authorities ( see Hermi, cited above, § 71), a number of open-ended questions might be sufficient to establish the defendant ’ s language needs. In this connection, the Court observes that recital 21 of Directive 2010/64/EU likewise leaves it to the authorities to choose the most appropriate manner of verification, which may include consulting the suspected or accused persons concerned (see paragraph 53 above).", "85. Lastly, the Court draws attention to the importance of noting in the record any procedure used and decision taken with regard to the verification of interpreting needs, any notification of the right to an interpreter (see paragraphs 86 and 87 below ) and any assistance provided by the interpreter, such as oral translation or oral summary of documents, so as to avoid any doubts in this regard that may be raised later in the proceedings ( see, mutatis mutandis, Martin v. Estonia, no. 35985/09, § 90, 30 May 2013, and paragraphs 57 and 60 above ).", "( iii ) Notification of the right to interpretation", "86. The Court has already had occasion to point out, in the context of the right of access to a lawyer, the right to remain silent and the privilege against self-incrimination, that for these rights to be practical and effective it is crucial that the suspects be aware of them ( see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 272, ECHR 2016 ). The Court finds that for the very same reason it is important for the suspect to be aware of the right to interpretation, which means that he must be notified of such a right when “charged with a criminal offence” (see, mutatis mutandis, ibid.; see also Article 3 of Directive 2012/13/EU cited in paragraph 60 above ).", "87. To be meaningful, the notification of the right to interpretation together with the other fundamental defence rights mentioned above should be done in a language that the applicant understands (ibid.). This is also implicit from the Court ’ s application of the “knowing and intelligent waiver” standard to any purported waiver of such rights ( see, mutatis mutandis, Dvorski v. Croatia [GC], no. 25703/11, § 101, ECHR 2015, and Ibrahim and Others, cited above, § 272).", "( b ) Application of the above principles to the present case", "(i) As regards the reasons for the appointment of a Russian interpreter", "88. The Court observes at the outset that the Kranj District Court seemed to have made some enquiries about the availability of interpreters for the applicant ’ s native language, Lithuanian, finding that no such interpreters were registered in Slovenia at the material time and that translation from and into that language would have required the assistance of the nearest Lithuanian Embassy (see paragraph 38 above). However, those enquiries were made only in the proceedings following the second-instance court ’ s judgment, without any further steps being taken. There is no indication in the file that any possibilities of securing a Lithuanian interpreter had been entertained by the authorities during the trial or the investigation. However, it appears that later in the proceedings, for instance before the Supreme Court ( see paragraphs 42 and 43 above ), a translation from Lithuanian into Slovenian and vice versa was obtained.", "89. In any event, the Government did not argue that there had been compelling reasons (see paragraph 76 above) preventing the authorities from appointing a Lithuanian interpreter to assist the applicant. In fact, they argued that a Russian interpreter had been appointed to assist him because, in their view, he understood Russian (see paragraph 71 above). Indeed, the domestic courts ’ decisions concerning the present complaint (see paragraphs 41, 43 and 46 above) were based on the assumption that the applicant understood Russian and was able to follow the proceedings in that language.", "90. In view of the foregoing, the Court cannot speculate as to whether or at what point a Lithuanian interpreter would have been available to the applicant, had the authorities actively sought one. Bearing in mind that Article 6 does not require that the defendant should necessarily be able to follow the proceedings in his or her native language, it will proceed to examine the main question, that is whether the applicant was provided with interpreting into a language of which he had a sufficient command for the purposes of his defence, and if not, whether this undermined the fairness of the proceedings as a whole.", "( ii ) As regards the assessment of the applicant ’ s interpreting needs", "91. In the present case, the authorities were clearly aware that the applicant, who was a Lithuanian national and had arrived in Slovenia only a short time before his arrest, did not understand the language of the criminal proceedings against him, which was Slovenian. After taking the applicant into custody, the police informed him, with the assistance of the Russian interpreter, of the reasons for his arrest and his right of access to a lawyer. When questioned by the investigating judge, the applicant was again assisted by the Russian interpreter. He continued to be assisted by that interpreter throughout the proceedings and during consultations with his court-appointed lawyer and was given Russian translations of the relevant court documents. However, although the records of the investigation and hearing are quite detailed, the Court cannot find any indication that the applicant was ever consulted as to whether he understood the interpreting and written translation into Russian well enough to conduct his defence effectively in that language.", "92. In that connection, the Court cannot accept the Government ’ s suggestion that any general assumption about the applicant ’ s knowledge of Russian could be made on the basis of his Lithuanian nationality and rejects the Government ’ s arguments about the use of Russian in Lithuania (see paragraph 71 above), finding that the accuracy of those submissions has not been proven in any way. It further notes that no other explanation was provided by the Government as to what led the authorities, when appointing a Russian interpreter to assist the applicant, to believe that he had sufficient command of that language (see paragraph 71 above; and contrast Hermi, cited above, §§ 90 and 91, and Katritsch v. France, no. 22575/08, § 45, 4 November 2010 ).", "93. The Court must therefore conclude that the authorities did not expressly verify (see paragraph 81 above) the applicant ’ s proficiency in Russian. The lack of such verification is an important element in the Court ’ s consideration of the case, as the effective protection of the rights enshrined in Article 6 § 3 (a) and (e) requires that a defendant be provided with interpreting into a language of which he has a sufficient command (see paragraphs 81 to 83 above).", "( iii ) As regards other indications of the applicant ’ s knowledge of Russian", "94. The Court must proceed to establish whether there are any other clear indications of the applicant ’ s proficiency in Russian. In this connection, the Court notes that there are no audio recordings of the questioning by the investigating judge or of the hearing and that no other evidence ( see, for example, Katritsch, cited above, § 45, and Hermi, cited above, § 90 ) by which to determine the applicant ’ s actual level of spoken Russian has been put forward by the Government. As to whether there are any indications, in the trial records or elsewhere, of his understanding of the interpreting language ( see paragraph 71 above ), the Court notes, firstly, that in the absence of any verification, his lack of cooperation during the police procedure and during his questioning by the investigating judge might be understood as being, at least in part, attributed to his difficulties in expressing himself and in following the proceedings in Russian (see paragraphs 11 and 13 above).", "95. Secondly, the few rather basic statements the applicant made during the hearing, presumably in Russian (see paragraphs 26, 27 and 29 above), cannot be regarded as sufficient to show that he was in fact able to conduct his defence effectively in that language.", "96. Thirdly, even though the Constitutional Court found that the applicant had “succeeded in communicating” with his counsel, it did not explain that finding by reference to the facts. Regrettably, its conclusion seems to be based on an assumption rather than on evidence of the applicant ’ s linguistic proficiency or of actual communication with his counsel (see paragraph 46 above).", "97. In conclusion, although the applicant appeared to have been able to speak and understand some Russian, a fact which he has not denied (see paragraph 67 above), the Court does not find it established that his proficiency in that language was sufficient to safeguard the fairness of the proceedings.", "(iv) As regards the lack of a complaint or of a request to replace the interpreter during the trial", "98. It remains for the Court to examine the Government ’ s argument that neither the applicant nor his counsel made any remarks about the appointment of the Russian interpreter during the investigation, at the hearings or on appeal ( see paragraphs 70 and 71 above ).", "99. As regards the applicant, the Court finds it important to note that there is no indication in the file that the authorities informed him of his right to interpreting into his mother tongue or of his basic right to interpreting into a language he understood (see paragraphs 43, 46, 48 and 49 above). The Government gave no justification for that failure. The Court emphasises in this connection that the notification of the right to interpretation was an integral part of the authorities ’ duty to provide adequate language assistance to the applicant in order to secure the right to a fair trial – a duty which was at the centre of the applicant ’ s appeal on points of law and his constitutional complaint (see paragraphs 37, 44, 86 and 87 above). Moreover, under domestic law the applicant was entitled to interpreting into his native language and the authorities were obliged, under domestic procedural law, to inform him of that right and to make a record of such notification and of the applicant ’ s response to it (see paragraphs 46, 48 and 49 above).", "100. In the Court ’ s view, the lack of such notification of the right to interpretation, coupled with the applicant ’ s vulnerability as a foreigner who had arrived in Slovenia only a short time before the arrest and had been detained during the proceedings, and his limited command of Russian, could well explain the lack of any request for a different interpreter or complaint in this regard until later in the proceedings, at which point he was able to use his native language (see paragraphs 37 to 46 above). The Court further observes that the Constitutional Court considered the applicant ’ s situation to be one of an exceptional nature, with the consequence that he had not been required to exhaust regular remedies (see paragraphs 41 and 46 above).", "101. As regards the lack of complaints by the applicant ’ s counsel, the Court reiterates that although the conduct of the defence is essentially a matter between the defendant and his or her counsel, whether counsel has been appointed under a legal - aid scheme or privately financed, the ultimate guardians of the fairness of the proceedings – encompassing, among other aspects, the possible absence of translation or interpretation for a non-national defendant – are the domestic courts (see Hermi, cited above, § 72, and Cuscani, cited above, § 39). The failure by the applicant ’ s legal representative to raise the issue of interpretation did not therefore relieve the domestic court of its responsibility under Article 6 of the Convention.", "(v) Conclusion", "102. In view of the above, the Court considers that it has not been established in the present case that the applicant received language assistance such as to allow him to participate actively in the trial against him. This, in the Court ’ s view, is sufficient to render the trial as a whole unfair.", "103. There has accordingly been a violation of Article 6 §§ 1 and 3 of the Convention. In the light of that conclusion, the Government ’ s objection as to the non- exhaustion of domestic remedies must be rejected.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "104. The applicant complained under Article 5 § 2 of the Convention, that he had not been promptly informed, in a language he could understand, of the reasons for his arrest. He also complained, under Article 6 §§ 1 and 3 (a) and (e) of the Convention that there had not been enough Russian interpreters. He also alleged that there had been a breach of Articles 13 and 14, taken together with Article 6.", "105. As regards the complaints concerning Article 5 § 2 and/or Article 6 §§ 1 and 3 (a) and (e) of the Convention set out in the preceding paragraph, the Government raised an objection of non-exhaustion of domestic remedies. They submitted that the applicant had not raised those complaints in the domestic proceedings, and in particular had not referred to them in his constitutional complaint.", "106. The applicant disputed the Government ’ s submissions, arguing in essence that the authorities should have acted of their own motion and that as a foreigner he had not been in a position to complain.", "107. The Court finds that the applicant did not complain in his constitutional complaint, which he was allowed to submit in his native language, that he had not been promptly informed of the reasons for his arrest in a language he could understand (see paragraph 44 above). The applicant also failed to complain at the domestic level of an insufficient number of available interpreters. Accordingly, and noting that those issues amount to complaints distinct from the ones examined above and should thus have been, at least in substance, raised before the domestic courts, the Government ’ s objection of a failure to exhaust domestic remedies must be upheld and that part of the application rejected as inadmissible pursuant to Article 35 §§ 1 and 4 in fine of the Convention.", "108. The Court has also examined the applicant ’ s complaints under Articles 13 and 14 taken together with Article 6.", "109. It notes that these complaints are linked to that under Article 6 §§ 1 and 3 of the Convention concerning the alleged denial of the applicant ’ s right to use a language of which he had a sufficient command in the criminal proceedings against him. They must therefore likewise be declared admissible (see paragraphs 66 and 103 above).", "110. Having regard to its conclusion in respect of Article 6 §§ 1 and 3 of the Convention (see paragraphs 102 and 103 above), the Court concludes that no separate issue arises under this head.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "111. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "112. The applicant claimed 31,840 euros (EUR) for loss of earnings. He also claimed EUR 15,000 in respect of non-pecuniary damage.", "113. The Government objected, arguing that the submissions about the applicant ’ s employment prospects were purely speculative and that there was no causal link between the alleged violation and the damages sought. They also argued that the amount claimed for non-pecuniary damage was excessive and unfounded.", "114. The Court does not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejects that claim (see, mutatis mutandis, Ibrahim and Others, cited above, § 315, and Ajdarić v. Croatia, no. 20883/09, § 57, 13 December 2011). On the other hand, the Court considers that the applicant must have suffered some non-pecuniary damage on account of his conviction in violation of Article 6 §§ 1 and 3 of the Convention. That damage cannot be sufficiently compensated for by a finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,400 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.", "B. Costs and expenses", "115. The applicant also claimed EUR 6,250 for his legal representation before the Court based on the terms of the agreement signed between him and his representative ( hourly rate of EUR 250 for about twenty-five hours ’ work).", "116. The Government argued that the applicant ’ s claim was excessive, unreasonable and unfounded and that an agreement which departed from the official rates for lawyers would not be binding on the domestic courts.", "117. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant entered into an agreement with his representative concerning his fees. Such an agreement – giving rise to obligations solely between the lawyer and the client – cannot bind the Court, which must assess the level of costs and expenses to be awarded with reference not only to whether the costs have actually been incurred, but also to whether they have been reasonably incurred (see, mutatis mutandis, East West Alliance Limited v. Ukraine, no. 19336/04, § 269, 2 3 January 2014 ). Moreover, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, among many examples, Gaspari v. Slovenia, no. 21055/03, § 83, 21 July 2009).", "118. In the present case, regard being had to the documents in its possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 2, 500 covering costs for the proceedings before the Court.", "C. Default interest", "119. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant is a Maltese national and lives in Attard, Malta.", "8. The facts of the case, as submitted by the parties, may be summarised as follows.", "1. The background of the case", "9. The applicant is a pharmacist in Malta. From 1971 he was placed on the lists of jurors and remained on them until 2005.", "10. Between 1971 and 1997, the applicant was called to serve as a juror in three different sets of criminal proceedings. On these occasions, he was called to serve both as a juror and as a foreman of the jury.", "11. In 1997 the applicant was again called to appear before the Criminal Court to serve as a juror. This time he failed to attend on the requested date and on 14 April 1997 he was fined 100 Maltese liri ( (MTL) – approximately 240 euros (EUR)).", "2. The constitutional proceedings", "12. As the applicant failed to pay the fine, on 11 June 1997 the Registrar of the Courts of Malta submitted an application to the Criminal Court. It asked that court to summon the applicant before it and/or to convert the fine imposed into a term of imprisonment.", "13. At the sitting of 26 June 1997 before the Criminal Court, the applicant raised the plea that the fine imposed on him was unconstitutional and constituted a breach of his fundamental rights. He alleged, in particular, that the sanction was discriminatory in terms of Article 45 of the Constitution and Article 14 of the Convention taken in conjunction with Article 4 § 3 (d), because it subjected him to burdens and duties to which other persons in the same position were not subjected. Moreover, the law and/or the domestic practice exempted persons of the female sex from jury service whereas, de facto, men were not offered this exemption.", "14. Considering that the applicant ’ s plea was not merely frivolous and/or vexatious, on 29 September 1997 the Criminal Court referred it to the First Hall of the Civil Court.", "15. Before the Civil Court, the applicant alleged that the Maltese system penalised men and favoured women, as statistical information showed that during the preceding five years only 3.05% of jurors had been women whereas 96.95% had been men. Moreover, the burden of jury service was not equitably distributed but was placed on a very small proportion of the population: in 1997 the lists of jurors represented only 3.4% of the list of voters. In practice, those who had on one occasion been placed on the lists of jurors would remain on them until they were disqualified, while others who also satisfied all the requirements were de facto exempted from such civic obligation.", "16. In a judgment of 5 February 1999, the Civil Court rejected the applicant ’ s claims. It held that in stating that every Maltese citizen who had attained the age of 21 qualified to serve as a juror the law did not make any distinction between citizens. More specifically, there was no distinction between men and women. As to the practice criticised by the applicant, the latter had not substantiated his allegation that there were other persons eligible to serve as jurors who managed to avoid performing their duties. Moreover, the applicant had failed to seek exemption from jury service in accordance with domestic law.", "17. The Civil Court also observed that the applicant had not proved that he was being treated differently to such an extent that the burdens and obligations imposed on him were greater than those imposed on another person. In particular, it had not been established that people who had been on the lists of jurors as long as the applicant had been removed without a valid reason, or that persons who were in a situation comparable to that of the applicant were left off the lists. The applicant had also failed to submit any evidence showing that the discrepancies between women and men called to serve as jurors were specifically attributable to an intention to discriminate between the sexes or were aimed at giving an unjust advantage to women in relation to men.", "18. The applicant appealed against the judgment of 5 February 1999 to the Constitutional Court. He observed, in particular, that the existence of discrimination was clearly shown by the statistics he had produced. Given this factual background, it was unnecessary to prove an intention to discriminate on the part of the authorities.", "19. In his submissions, the applicant pointed out that jury service was a burden as it required the person concerned to abandon his or her work in order to attend court hearings regularly; moreover, it imposed a moral burden to judge the innocence or guilt of a person. According to the Constitution of Malta and the Convention, social burdens should be shared by all in an equitable manner. However, statistics showed that lists of foremen were composed of 0.74% of women and 99.26% of men, and that the lists of jurors represented only 3.4% of the list of voters.", "20. In a judgment of 2 November 2001, the Constitutional Court dismissed the applicant ’ s appeal and confirmed the judgment of the Civil Court.", "21. The Constitutional Court reiterated that neither the law nor the administrative rules in relation to the compilation of the lists of jurors were in any way discriminatory. In fact, the statistics showed that the number of women on the lists of jurors was 145 in 1996 (almost double the number of the previous year), and that this number increased to 2,490 in 1997. Therefore, an irreversible administrative process had been set in motion in order to bring the number of women on the lists into line with that of men.", "22. The Constitutional Court acknowledged, however, that the number of women actually called to serve as jurors was very low: only five per year in the years 1995, 1996 and 1997. This was clearly the result of the jury selection procedure, in which the reasons militating for and against the choice of a certain person as juror were evaluated. The results were dependant on many factors, such as the element of luck, challenges brought by the defence and exemptions granted by the courts. It was true that women were exempted from jury service for social, family and cultural reasons; however, this was perfectly legitimate and lawful when it was as a consequence of a claim by the defence, the prosecutors or the presiding judge.", "23. The Constitutional Court also agreed that it appeared that the manner in which the lists of jurors were compiled favoured a situation in which when a person was placed on the lists he remained on them until the age restriction was reached. Therefore the applicant ’ s grievance that this system seemed to punish those persons who were on the lists could be justified. Thus, the Constitutional Court suggested that the system be amended and that the lists be periodically changed in order to exclude those persons who had already been called for jury service.", "24. As concerned the applicability of Article 14 of the Convention, the Constitutional Court noted that jury service should be considered “ a normal civic obligation ” within the meaning of Article 4 of the Convention, and therefore Article 14 came into play. The Constitutional Court considered, however, that the applicant had not been subjected to burdensome treatment simply because he had had to serve as a juror on three occasions over a span of seventeen years. In any case, this circumstance did not entitle him to take the law into his own hands and decide to ignore the court summons. Instead, he should have made use of the ordinary remedies available to him, such as filing a request for exemption from jury service with the competent court. Had this request been refused, he could have appealed.", "25. The Constitutional Court also rejected the applicant ’ s submission that the fine imposed on him was discriminatory. It observed that anyone who had been fined by the competent court was obliged by law to pay the fine and that anyone who disobeyed an order of a court was liable to be sanctioned.", "3. The applicant ’ s requests for exemption from jury service", "26. On an unspecified date in 2003, the applicant petitioned the Registrar of the Criminal Court. He observed that, according to the Government Gazette of 28 August 2003, his name had been registered on the List of Jurors and on the List of Special Jurors. However, as he was a lecturer at the University of Malta, he sought exemption from jury service in accordance with Article 604(1) of the Criminal Code (hereinafter “ the CC ” ).", "27. By a decision of 23 October 2003, the Registrar of the Criminal Court rejected the applicant ’ s petition.", "28. Having been summoned once again to serve as a juror in another trial, in 2004 the applicant requested to be exempted from jury service under Article 607 of the CC. This application was rejected by the competent domestic court.", "29. On 18 April 2005 the applicant requested once again to be exempted from serving as a juror. He relied on Article 604 (1) of the CC, providing an exemption for full-time lecturers at the University. On 25 April 2005 his request was accepted." ]

[ "II. RELEVANT DOMESTIC LAW", "30. According to Article 603 (1) of the CC,", "“ Every person of the age of twenty-one years or upwards, residing in Malta and being a citizen of Malta, shall be qualified to serve as a juror provided such person has an adequate knowledge of the Maltese language, is of good character and is competent to serve as a juror. ”", "31. The compilation of the lists of jurors is regulated by Article 605 of the CC. The lists are drawn up by the Commissioner of Police together with two magistrates and the Registrar of the Courts. They are published in the Government Gazette in the month of August each year. Within fifteen days from the publication any person who, not possessing the qualifications required by law to serve as a juror, desires to be struck off the lists may file an application before the Criminal Court. The court shall proceed summarily on the application and the registrar shall note on the lists any correction which the court may order. Subsequently, the names of the jurors are written down on separate ballots of paper and every month ballots are drawn.", "32. Article 604 of the CC provides:", "“ (1) The following persons are exempted from serving as jurors:", "Members of the House of Representatives, judges, clergymen, members of the Armed Forces of Malta, persons holding the office of Head of a Government Department and their deputies, the magistrates, the Registrar of Courts, officers of the Executive Police, professors of the University, teachers of the Government secondary, primary and technical schools, District Medical Officers, health inspectors, the Principal Probation Officer and Probation Officers.", "(2) Moreover the court may, on an application to that effect, exempt from serving as a juror any apothecary of a village and any physician, surgeon or obstetrician actually practising his profession, and, in general, any person who has completed the sixtieth year of his age, unless, in some particular case, the court deems otherwise for the ends of justice.", "(3) A person who has the care of a family or of a person who suffers from any physical or mental infirmity shall also be exempt from serving as a juror. ”", "33. Article 607 of the CC provides that any person who is not qualified or liable to serve as a juror, or who may have special reasons for asking to be exempted from serving as a juror, may bring the matter before the court, by means of an application to be filed within four days after the service of a writ of summons. The court may, “ if it deems the reasons alleged to be good, ... order the registrar to cancel the name of such person ”.", "34. According to Article 609 of the CC, if a summoned person ( that is, a person called to serve as a juror) fails to appear before the court at the time stated in the writ, he will be sentenced by the court to a fine and may be compelled to serve as a juror by means of a warrant of escort or arrest. The court may, on an application to that effect, remit the fine if it is satisfied that there was good cause for the non-appearance.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 § 3 (d)", "35. The applicant considered that the way in which jury service had been imposed on him was discriminatory in nature. He relied on Article 14 of the Convention taken in conjunction with Article 4 § 3 (d).", "The relevant parts of the latter provision read as follows:", "“ 1. No one shall be held in slavery or servitude.", "2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this Article the term ‘ forced or compulsory labour ’ shall not include:", "...", "(d) any work or service which forms part of normal civic obligations. ”", "36. Article 14 of the Convention states:", "“ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ”", "A. Applicability of Article 14 of the Convention taken in conjunction with Article 4 § 3 (d)", "1. The parties ’ submissions", "(a) The Government", "37. The Government considered that Article 14 of the Convention taken in conjunction with Article 4 § 3 (d) was not applicable to the facts of the present case.", "38. They submitted that jury service was undoubtedly a “ normal civic obligation ” based on social solidarity, which was imposed on citizens in order to ensure the democratisation of the process of the administration of criminal justice and that a person was judged by his or her peers. This had not been contested by the applicant. Therefore, service as a juror could not amount to “ forced or compulsory labour ” within the meaning of Article 4 § 2 of the Convention. The applicability of that provision was excluded by virtue of paragraph 3 (d).", "39. The Government further noted that the applicant, who had only been called to serve three times as a juror over a period of seventeen years, had complained only about the procedures which led to the drawing up of the lists of those who were eligible to serve as jurors, and not about the subsequent process of selection of the persons who eventually performed jury service. However, the drawing up of the lists did not amount to “ forced labour ”, as no service was necessarily implied by the mere fact that a person ’ s name appeared on them. In fact, an exemption could be granted, the person could be challenged or it might happen that his or her name would never be selected. Therefore, the facts underlying the applicant ’ s complaint fell outside the ambit of Article 4 of the Convention, and Article 14 was not applicable.", "(b) The applicant", "40. The applicant pointed out that the Constitutional Court had categorically accepted that jury service was a “ normal civic obligation ”. This opinion was confirmed by the principles laid down by the Court in Karlheinz Schmidt v. Germany (18 July 1994, Series A no. 291-B ) and Van der Mussele v. Belgium (23 November 1983, Series A no. 70). In the latter judgment, the Court held that the concept of “ normal civic obligation ” referred “ to all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily ”. The applicant emphasised that he had not offered himself voluntarily for jury service. On the contrary, this service had been exacted from him on pain of a fine, which could be converted into a term of imprisonment. The applicant made reference to judgments in which the United States Supreme Court dealt with issues related to jury service and discrimination in the selection of jurors ( Smith v. State of Texas, 25 November 1940, 311 US 128 (1941); Thiel v. Southern Pac. Co., 20 May 1946, 328 US 217 (1946); and Brown v. Allen, 9 February 1953, 344 US 44 3 (1953)). It held that jury service was a civic obligation and that the jury system played a political function in the administration of the law and was fundamental in a democratic system of justice.", "41. In the applicant ’ s view, as jury service was covered by paragraph 3 (d) of Article 4, the only logical conclusion was that the facts of the case fell within the scope of Article 4. As a consequence, Article 14 – a provision which did not require a violation of the substantive provision of the Convention, but only a link with it – was also applicable.", "2. The Court ’ s assessment", "42. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “ the enjoyment of the rights and freedoms ” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997-I, and Petrovic v. Austria, 27 March 1998, § 22, Reports 1998-II).", "43. The Court reiterates that paragraph 2 of Article 4, which prohibits “ forced or compulsory labour ”, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation ( see Siliadin v. France, no. 73316/01, § 112, ECHR 2005 -VII ). However, paragraph 3 of this provision indicates that the term “ forced or compulsory labour ” shall not include, inter alia, “ any work or service which forms part of normal civic obligations ”.", "44. In the case of Karlheinz Schmidt, in which only men were obliged to serve in the fire brigade or to pay a financial contribution in lieu of such service (cited above, § 22), the Court found that Article 14 was applicable and stated that:", "“ ... paragraph 3 of Article 4 is not intended to ‘ limit ’ the exercise of the right guaranteed by paragraph 2, but to ‘ delimit ’ the very content of that right, for it forms a whole with paragraph 2 and indicates what ‘ the term “ forced or compulsory labour ” shall not include ’ ( ce qui ‘ n ’ est pas considéré comme “ travail forcé ou obligatoire ” ‘ ). This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four sub - paragraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs ... ”", "45. The Court has also emphasised that “ [t] he criteria which serve to delimit the concept of compulsory labour include the notion of what is in the normal course of affairs ... Work or labour that is in itself normal may in fact be rendered abnormal if the choice of the groups or individuals bound to perform it is governed by discriminatory factors, which was precisely what the applicant contended had occurred in the present circumstances ” ( see Van der Mussele, cited above, § 43).", "46. In the present case, the Court does not see any reason to depart from its findings in the two judgments cited above. Therefore, the fact that a situation corresponds to the notion of a normal civic obligation within the meaning of paragraph 3 is not an obstacle to the applicability of Article 4 of the Convention taken in conjunction with Article 14.", "47. Like the parties to the proceedings, the Court considers that compulsory jury service such as exists in Malta is one of the “ normal civic obligations ” envisaged in Article 4 § 3 (d). It observes further that the applicant did not offer himself voluntarily for jury service and that his failure to appear led to the imposition of a fine, which could be converted into a term of imprisonment. On account of its close links with the obligation to serve, the obligation to pay the fine also falls within the scope of Article 4 § 3 (d) (see, mutatis mutandis, Karlheinz Schmidt, cited above, § 23).", "48. It is true, as pointed out by the Government (see paragraph 39 above), that in his submissions the applicant mainly criticised the procedures leading to the drawing up of the lists of jurors. However, this does not imply that his complaint is not directed against the result of these procedures, namely the fact that he was required to perform the civic obligation of jury service.", "49. It follows that the facts in issue fall within the ambit of Article 4. Article 14 of the Convention is accordingly applicable.", "B. Compliance with Article 14 of the Convention taken in conjunction with Article 4 § 3 (d)", "1. The parties ’ submissions", "(a) The Government", "50. The Government observed that the applicant accepted that the relevant domestic provisions did not discriminate between men and women. His complaints seemed therefore directed against the administrative practices relating to the choice of persons for jury service.", "51. However, Article 14 of the Convention could not come into play in connection with the applicant ’ s claim that a person put on the lists was not removed before he died or became exempted because of age. That alleged practice in fact applied equally to both men and women. The applicant ’ s complaints should therefore be interpreted in the sense that as a result of various factors he, as a man, was more likely to be called for jury service than a woman.", "52. The Government noted that originally all women had been precluded from jury service. The law had then been modified, and women could apply to have their names placed on the lists of jurors. Nowadays, both women and men were equally liable to be called to serve as jurors or to be exempted from that social duty. Therefore, the lists of jurors had started as all- male lists, and it was only gradually that women had been added and continued to be added to them.", "53. As to the statistics produced by the applicant, the Government observed that between 1996 and 1997 the number of male jurors had increased by less than 74% (from 4,298 to 7,503), while the number of female jurors had increased by 1,596% (from 147 to 2,494). In any case, it had to be borne in mind that most jurors were chosen from the part of the population which was active in the economy and professional life. Such people were in fact less likely to have family or other reasons for seeking an exemption.", "54. The Government pointed out that, as the Constitutional Court had correctly stated, “ an irreversible administrative process had been set in motion in order to bring the number of women on the lists into line with that of men ”. Since 1997, when the lists of jurors were revised on a yearly basis, the Commissioner of Police had tended to substitute women in the place of men who were disqualified from service, and the objective of securing a more even distribution of jurors between the two genders was kept in mind when putting additional jurors on the lists. One of the measures that had been taken was to add government or bank employees to the lists of jurors, amongst which groups women were well- represented. University graduates had also been added to the lists on the basis that there was an equal number of men and women. The Government noted that as a result of this ongoing process, in the lists of jurors published in the Gazette of 15 November 2004, there were 6,344 women and 10,195 men. They also clarified that while there was no maximum numerical limit to the number of people included on the lists of jurors, the number actually enrolled depended on checks made by the Commissioner of Police, and on the practice of putting on the lists only qualified individuals ( men or women ) who were less likely to be entitled to an exemption.", "55. It should also be noted that according to Article 604(3) of the CC (see paragraph 32 above), an exemption might be granted when a juror was a person who cared for a family or a person suffering from physical or mental infirmity. As more women than men were looking after their families, a higher number of women were disqualified on that ground. However, this was the result of socio-cultural factors rather than of the operation of the law.", "56. The Government emphasised furthermore that the prosecution and the defence had the right to challenge a number of jurors. For cultural reasons, defence lawyers might have had a tendency to challenge female jurors, but this was discrimination against and not in favour of women.", "57. In the light of the above, the Government concluded that the practice of selection and exemption from jury service was justifiable under Article 4 § 3 of the Convention taken alone or in conjunction with Article 14.", "(b) The applicant", "58. The applicant complained of a two-fold discriminatory treatment. In the first place he alleged that he had been treated differently from women who, though satisfying the legal requirements, were called on to fulfil jury service in a minimal manner when compared to men.", "59. Thus, the burden of jury service was placed predominantly on men, while women were de facto exempted from this social duty. The applicant referred, on this point, to the statistics he had produced in the domestic proceedings. He noted that in 1996 140,975 women and 135,527 men were enrolled on the electoral register; however, only 147 women (among whom 5 actually served as jurors) were placed on the lists of jurors, as opposed to 4,298 men (174 of whom actually served as jurors).", "60. This discrimination was caused by the way in which the lists of jurors were compiled and could not be excused by social or cultural reasons or by the choice made at the beginning of the trial by the prosecutor or the defence. The crux of the matter was in fact not the number of women who actually had to serve as jurors, but the low number enrolled on the lists of jurors.", "61. The applicant considered that after 1994, when women became liable to serve as jurors on the same footing as men, there was no reason in law for the continued discrepancy between the two genders. Both men and women were in theory equally liable to serve as jurors and to be exempted. However, as the overwhelming majority of people enrolled on the lists were men, the only explanation was that there had been a discriminatory administrative practice.", "62. The applicant was unable to explain the increasing number of women registered as jurors from 1996 to 1997, but pointed out that the increase had only occurred three years after the 1994 amendments. The fact that the number of women selected as jurors was constantly growing might also be explained by the judgment given in his case by the Constitutional Court, in which a revision of the system of compiling the lists had been recommended. In any case, the discrimination complained of had lasted for at least twenty-six years, including the year when the applicant had lodged his complaint before the national courts.", "63. As to the Government ’ s argument that the predominant number of men was a result of there being fewer women active in public and professional life, the applicant noted that the law did not require a person to be active in such fields in order to qualify as a juror. The Government ’ s argument might even be considered discriminatory against people who chose to study at university or to become housewives. The applicant also alleged that the socio-cultural factors indicated by the Government could not justify a difference in treatment especially when the law itself was amended in order to eliminate its discriminatory wording.", "64. The applicant considered that the differences in treatment complained of lacked any objective and reasonable justification. Men did not have any specific abilities which might render them more fit for jury service than women. The aim of the jury system should be to ensure that the accused was tried by a sample of society. A jury predominantly composed of men would create an unbalanced system of criminal justice in relation to trials in which women were defendants, victims or witnesses.", "65. The applicant further considered that he had also been discriminated against vis-à-vis other men who, though eligible for jury service, had never been summoned to serve as jurors.", "66. He alleged that the way in which the laws establishing jury service were applied had led to a situation in which only a small percentage of the population was summoned to serve as jurors. Of the hundreds of thousands of persons eligible for jury service, only a few hundred were actually called for service. The lists of jurors were not compiled every year and the same names were retained on the lists. Even if the law clearly required new lists to be compiled, the practice was, as substantially admitted by the Government, to make a simple annual check of those who had become disqualified or had died during the previous twelve months.", "67. In that respect, the applicant noted that the number of persons enrolled on the electoral register in 1 996 and 1997 was, respectively, 276,502 and 279,487, while the number of persons placed on the lists of jurors in the same years was 4,445 and 9,997. It followed that the burden of jury service was limited, in 1996, to 1.6% of those eligible and in 1997 to 3.57%. Moreover, in 1997 the number of male registered voters was 137,090; however, only 392 men were called to serve as foremen and 7,111 were called to serve as jurors. While accepting that only a small percentage of persons were needed every year to serve as jurors, the applicant emphasised that the burden of such service had been imposed on the same people, representing a small minority of the population, for a large number of years. In this connection, he pointed out that he had been placed on the lists for the first time in 1971 and that his name had not been removed since.", "68. In the applicant ’ s view, the situation was still unsatisfactory. Even after the 2002 amendments, the lists were not drawn up de novo. The authorities confined themselves to replacing people who had become disqualified. As a result, only 6% of the population were on the lists (3.5% of men and 2.5% of women ).", "69. The applicant noted that no justification had been put forward by the Government to explain the difference in treatment that he suffered vis-à-vis other men.", "70. In the applicant ’ s view, a civic obligation is normal if it is enforced and administered in a just and equitable manner and it is shared by the qualified members of the society. A fair cross section of society is imperative for a just and fair jury system. On the contrary, when, as in his case, such an obligation imposes an excessive and disproportionate burden on a single individual, discrimination contrary to the Convention occurs. The applicant referred to the above-mentioned judgments in which the United States Supreme Court criticised the practices of placing the burden of jury service upon only a section of the population and of excluding an ethnic or racial group from jury service. Moreover, the case of Taylor v. Louisiana (419 US 522 (1975)) concerned a situation whereby women could not be selected for jury service unless they had previously declared in writing that they wished to serve as jurors. The Supreme Court had held that “ if it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed ”. The applicant submitted that the situation in Malta was similar to that in the State of Louisiana at the time of the Taylor case.", "2. The Court ’ s assessment", "(a) General principles", "71. The Court ’ s case-law establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV). However, not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory ( see Ünal Tekeli v. Turkey, no. 29865/96, § 49, ECHR 2004 -X ).", "72. A difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ” (see, for example, Petrovic, cited above, § 30, and Lithgow and Others v. the United Kingdom, 8 July 1986, § 177, Series A no. 102 ).", "73. In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001).", "74. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment ( see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996 ‑ IV). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background ( see Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87, and Inze v. Austria, 28 October 1987, § 41, Series A no. 126), but the final decision as to observance of the Convention ’ s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must, however, have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved ( see Ünal Tekeli, cited above, § 54, and, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002 ‑ IV).", "(b) Whether there has been a difference in treatment between persons in similar situations", "75. The Court observes that it is accepted by the applicant that the difference in treatment complained of does not depend on the wording of the domestic provisions. As in force at the relevant time, Maltese law did not make any distinction between the sexes, both men and women being equally eligible for jury service (see Article 603 (1) of the CC, paragraph 30 above). The discrimination in issue was on the contrary based on what the applicant described as a well-established practice, characterised by a number of factors, such as the manner in which the lists of jurors were compiled and the criteria for exemption from jury service. As a result, only a negligible percentage of women were called to serve as jurors.", "76. The Court has held in previous cases that statistics are not in themselves sufficient to disclose a practice which could be classified as discriminatory ( see Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001). At the same time, the Court considers that a discrimination potentially contrary to the Convention may result not only from a legislative measure (see, in the ambit of social duties, Karlheinz Schmidt, cited above, §§ 24-29 ), but also from a de facto situation.", "77. The Court notes that it is apparent from the statistics produced by the parties (see paragraphs 53 and 59 above) that in 1997 – the year in which the applicant was called to serve as a juror and failed to attend the court – the number of men (7,503) enrolled on the lists of jurors was three times that of women (2,494). In the previous year this difference was even more significant, as only 147 women were placed on the lists of jurors, as opposed to 4,298 men. The Court is also struck by the fact that in 1996, 5 women and 174 men served as jurors.", "78. The Court considers that these figures show that the civic obligation of jury service has been placed predominantly on men. Therefore, there has been a difference in treatment between two groups – men and women – which, with respect to this duty, were in a similar situation.", "79. It is true that, as the Government pointed out, since 1997 an administrative process had been set in motion in order to bring the number of women registered as jurors into line with that of men. As a result, in 2004 6,344 women and 10,195 men were enrolled on the lists of jurors, thus showing a significant increase in the number of women actually eligible for jury service. However, this does not undermine the finding that at the relevant time – when the applicant was called to serve as a juror and failed to appear – only a negligible percentage of women were enrolled on the lists of jurors and were actually requested to perform jury service.", "(c) Whether there is objective and reasonable justification", "80. The Court observes that, if a policy or general measure has disproportionately prejudicial effects on a group of people, the possibility of its being considered discriminatory cannot be ruled out even if it is not specifically aimed or directed at that group ( see McShane v. the United Kingdom, no. 43290/98, § 135, 28 May 2002). Moreover, very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention ( see Willis, cited above, § 39, and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263 ).", "81. In the instant case, the Government argued that the difference in treatment depended on a number of factors. In the first place, jurors were chosen from the part of the population which was active in the economy and professional life. Moreover, according to Article 604 (3) of the CC, an exemption from jury service might be granted to persons who had to take care of their family. More women than men could successfully rely on such a provision. Finally, “ for cultural reasons ”, defence lawyers might have had a tendency to challenge female jurors (see paragraphs 53, 55 and 56 above).", "82. The Court has doubts as to whether the factors indicated by the Government are sufficient to explain the significant discrepancy in the distribution of jury service. It notes furthermore that the second and third factors relate only to the number of women who actually performed jury service and do not explain the very low number of women enrolled on the lists of jurors. In any event, the factors highlighted by the Government only constitute explanations of the mechanisms which led to the difference in treatment complained of. No valid argument has been put before the Court in order to provide a proper justification for it. In particular, it has not been shown that the difference in treatment pursued a legitimate aim and that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.", "83. In the light of the foregoing, the Court finds that there has been a violation of Article 14 taken in conjunction with Article 4 § 3 (d) of the Convention.", "84. This conclusion dispenses the Court from examining whether the applicant has also been discriminated against vis-à-vis other men who, though eligible for jury service, have never been summoned to serve as jurors.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6", "85. The applicant alleged that in relation to a civic obligation that had been imposed on him he had had to face criminal proceedings, had been ordered to pay a fine and had been threatened with imprisonment in default. He relied on Article 14 of the Convention taken in conjunction with Article 6. The relevant part of the latter provision reads as follows:", "“ 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ... ”", "A. The parties ’ submissions", "1. The Government", "86. The Government observed that the applicant had become liable to the payment of a fine because he had chosen to ignore his summons for jury service. He had not complained of an unfair trial or of a lack of independence or impartiality of the domestic tribunal. Nor had he complained that the situation would have been different if he had been a woman. Therefore, no discrimination on the ground of sex could be disclosed.", "87. In the Government ’ s view, the applicant ’ s complaint might be understood in the sense that, as there were more male jurors, it was more likely that a male juror would become liable to a fine if he ignored his duties. To accept that argument would be tantamount to holding that laws on prostitution were in breach of Article 14 taken in conjunction with Article 6 simply because there were more female than male prostitutes. In any case, the applicant had alleged that others could be victims of the alleged violation, but not that he himself was a victim.", "88. The Government were of the opinion that the complaint under Article 6 relied on the same facts as those alleged in connection with Articles 14 and 4 § 3 (d). In fact, there was a necessary link between the criminal proceedings against the applicant and the fine that had been imposed on him for ignoring the court summons calling him for jury service.", "2. The applicant", "89. The applicant considered that the proceedings in which the Criminal Court had been asked to convert the fine into a term of imprisonment fell within the ambit of Article 6 of the Convention. He alleged furthermore that a violation of the latter provision taken in conjunction with Article 14 of the Convention, “ necessarily [arose] as a consequence of the complaint raised under Articles 14 and 4 § 3 (d) ”. In that respect, the applicant submitted that there was a strong link between jury service and the proceedings that had been brought against him. The compilation of the lists of jurors, the summons served on the applicant, the fine imposed on him and the proceedings for its conversion were events that were mutually dependent and entirely interrelated.", "B. The Court ’ s assessment", "90. The Court observes that the applicant did not allege that the proceedings directed against him were in any way unfair or that any of the rights guaranteed by Article 6 had been violated. In any case, it notes that the criminal proceedings were a mere consequence of the existence of the discriminatory civic obligation. Having regard to its finding that there has been a violation of Article 14 taken in conjunction with Article 4 § 3 (d) (see paragraph 84 above), the Court does not consider it necessary to examine whether there has also been a violation of Article 14 taken in conjunction with Article 6 (see, mutatis mutandis, Karlheinz Schmidt, cited above, § 30).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "91. Article 41 of the Convention provides:", "“ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ”", "A. Damage", "92. The applicant observed that his service as a juror caused him to be absent from his employment for a number of days. However, as the financial loss was difficult to quantify, he did not present any claim in this respect. The applicant also had to pay a fine of 100 Maltese liri (MTL) (approximately 240 euros ( EUR ) ), which was the direct effect of the discrimination complained of. He requested the reimbursement of this sum. As to non-pecuniary damage, the applicant left the matter to the discretion of the Court. He pointed out that his name had been kept on the lists of jurors and jury foremen published in 2005.", "93. The Government did not comment on the applicant ’ s claims.", "94. In so far as the repayment of the EUR 240 fine is concerned, the Court notes that this fine was imposed for non-attendance before the Criminal Court; it has not been shown that it was directly linked with the practice found to be in breach of the Convention. It further considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.", "B. Costs and expenses", "95. The applicant claimed MTL 723.33 (approximately EUR 1,736) for the costs incurred at the domestic level. He produced a tax-inclusive bill in this respect, issued by the Registrar of the Courts. He further claimed a total sum of MTL 2,353.04 (approximately EUR 5,648), to which EUR 368 should be added, for the proceedings before the Court, these sums covering both his lawyers ’ fees and the costs of their attendance at the oral hearing of 24 May 2005. The total sum claimed for costs and expenses was thus EUR 7,752.", "96. The Government did not comment on the applicant ’ s claims.", "97. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see, inter alia, Belziuk v. Poland, 25 March 1998, § 49, Reports 1998- II, and Craxi v. Italy, no. 34896/97, § 115, 5 December 2002 ).", "98. In the present case, the Court considers the total amount claimed to be reasonable. It therefore awards the applicant EUR 7,752, plus any tax that may be chargeable on this sum.", "C. Default interest", "99. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. Mr Karlheinz Schmidt, a German national who was born in 1939, lives at Tettnang, in the Land of Baden-Württemberg.", "On 30 April 1982 the relevant municipal authorities required him to pay a fire service levy ( Feuerwehrabgabe ) of 75 German marks (DM) for 1982. This decision was based on section 43 of the Land Fire Brigades Act, as amended on 27 November 1978 ( Feuerwehrgesetz, see paragraph 14 below -\"the 1978 Act\") and on the municipal decree ( Satzung ) of 5 December 1979; it stated that all male adults residing in Tettnang at the beginning of the budget year (1 January) were liable to pay the contribution in question.", "7. The applicant regarded this decision as contrary, inter alia, to the constitutional principle of equality before the law (Article 3 of the Basic Law - Grundgesetz ) and he appealed against it. The administrative authority ( Landratsamt ) of the district of Lake Constance ( Bodenseekreis ) rejected this appeal on 20 July.", "8. On 16 August 1982 the applicant appealed to the Sigmaringen Administrative Court ( Verwaltungsgericht ), which dismissed his appeal on 18 August 1983. Referring to the case-law of the Federal Constitutional Court ( Bundesverfassungsgericht ) and to that of the Administrative Appeals Court ( Verwaltungsgerichtshof ) of the Land, it ruled that the obligation for men, and not women, to serve in the fire brigade or to make a financial contribution was compatible with the Constitution.", "9. The Administrative Appeals Court dismissed the appeal which Mr Schmidt had filed against the decision of the Administrative Court; it refused him leave to appeal on points of law.", "It pointed out that like the Constitutional Court it had always held the legislation requiring only the male residents of a municipality to pay a fire service levy to be consistent with the Constitution. The applicant ’ s arguments could not persuade it to reconsider its case-law or to refer the question to the Constitutional Court again. There were no new facts to present to the Constitutional Court and there had not been a fundamental change in legal opinion on the subject. The Administrative Appeals Court stated that it endorsed the opinion expressed in the Constitutional Court ’ s judgment of 5 July 1983 to the effect that, in view of the risks inherent in service in the fire brigade, there remained objective reasons for imposing the obligation on men but not on women.", "10. The applicant challenged this judgment, which had been delivered on 25 March 1986, in so far as it had refused him leave to appeal on points of law, but the Federal Administrative Court ( Bundesverwaltungsgericht ) dismissed his appeal on 6 October 1986.", "In its view, the case raised no issue of principle ( grundlegende Bedeutung ). On the question whether the imposition of a fire service levy was in breach of the Constitution, it concluded that it was not, in conformity with a judgment of the Constitutional Court of 17 October 1961. It would only be possible to refer the matter once again to the Constitutional Court if there were new facts or a fundamental change in legal opinion. However, the Land Administrative Appeals Court had found no evidence of this.", "11. On 11 November 1986 Mr Schmidt applied finally to the Federal Constitutional Court, which on 31 January 1987, sitting as a panel of three members, declined to accept the appeal for adjudication, on the ground that it did not have sufficient prospects of success. It noted, inter alia:", "\"...", "The Federal Constitutional Court has already held, in its judgment of 17 October 1961 ..., concerning the provision which corresponds to the present section 43 para. 2, first sentence, of the Baden-Württemberg Fire Brigades Act, that there had been no violation of the principle of equal treatment. In subsequent decisions delivered ... on 6 December 1978 (1 BvR 722/77), 13 November 1979 (1 BvR 768/79), 5 July 1983 (1 BvR 210/83), 19 November 1985 (1 BvR 609/85) and 11 December 1985 (1 BvR 1277/85), it stated that from the point of view of Article 3 para. 2 of the Basic Law [enshrining the principle of sexual equality] there had still been no general change in legal opinion; the fact that the obligation to serve in the fire brigade was limited to the male residents of a municipality still continued to be objectively justified on account of the risks inherent in service in the fire brigade, even though some fire brigade duties were performed by women and recently fire brigades for female volunteers had even been set up.", "Nor does the fact that the Länder of Lower Saxony (section 14 para. 3 of the Lower Saxony Fire Protection Act) and the Rhineland-Palatinate (section 10 para. 2 of the Rhineland- Palatinate Fire Protection Act) make provision for an obligation to serve in the fire brigades regardless of sex constitute a reason for departing from this case-law. The sole decisive factor is that there remain today objective reasons ( Anknüpfungspunkte ) on the basis of which the legislature is entitled to treat men and women differently in this regard. That does not mean that there is an obligation to enact regulations differentiating between the sexes.", "...\"" ]

[ "II. RELEVANT DOMESTIC LAW", "12. The Baden -Württemberg Fire Brigades Act dates from 1 April 1956; it has been amended on several occasions, most recently on 10 February 1987. At the time of the events in the present case the Act was applicable as amended on 27 November 1978.", "13. The Act requires municipalities to set up proficient fire brigades which may be composed of volunteers or professionals (sections 4 para. 1 and 8 para. 1). Their role is to deal with, among other things, fires, natural disasters and collapsed buildings, but they may also be required to ensure safety in theatres, at meetings and exhibitions and also at markets (section 2 paras. 1 and 2). All the male residents of the municipality between the ages of 18 and 50 inclusive may be required to serve as firemen, unless they can show that they are unfit to do so on health grounds (section 13 para. 1). If there are insufficient volunteers, the municipalities may call upon these residents to serve (section 13 para. 2), but so far this has never occurred in Baden-Württemberg.", "As the Act does not recognise a right to active service, the municipalities may refuse to accept a volunteer (section 12 para. 3).", "14. The municipalities may adopt decrees making provision for a fire service levy of up to 200 DM; the resulting funds may only be used to meet the needs of the fire brigade (section 43 paras. 1 and 4).", "Anyone who is liable for fire service duty (section 13) and who resides in the municipality at the beginning of the budget year, may be required to pay this levy (section 43 para. 2). Certain persons are, however, exempted, such as the members of the municipal fire brigade (section 43 para. 3).", "15. The system operated in Baden-Württemberg was challenged upon the entry into force of the Act on 1 April 1956. On 17 October 1961 the Federal Constitutional Court ruled that the fire service levy was compatible with the Basic Law and in particular with the general principle of equality before the law in so far as it constituted a \"compensatory charge\" ( Ausgleichsabgabe ) deriving directly from the obligation to serve.", "16. In thirteen of the sixteen Länder of the Federal Republic of Germany - including Baden-Württemberg -, the residents of municipalities are required by law to perform active service in the fire brigade if there are insufficient volunteers. Nine Länder make provision for such service solely for male residents. In addition to Baden-Württemberg, residents are required to pay a contribution to the fire brigade or to the fire protection department in Bavaria, Saxony and Thüringen. Where service is compulsory for residents of both sexes, both men and women are liable to pay the contribution.", "17. Moreover, according to information provided by the applicant and not contested, 68,612 women had served in fire brigades in Germany as at 31 December 1991 and in Baden-Württemberg women have been permitted to serve in fire brigades since 1978.", "PROCEEDINGS BEFORE THE COMMISSION", "18. Mr Karlheinz Schmidt applied to the Commission on 11 August 1987. Relying on Article 14 taken in conjunction with Article 4 para. 3 (d) of the Convention and Article 1 of Protocol No. 1 (art. 14+4-3-d, art. 14+P1-1), he complained of a breach of the principle of sexual equality in so far as in the Land of Baden-Württemberg only men were subject to the obligation to serve as firemen or pay a financial contribution.", "19. The Commission declared the application (no. 13580/88) admissible on 8 January 1992.", "In its report of 14 January 1993 (drawn up under Article 31) (art. 31), it expressed the opinion, by fourteen votes to three, that there had been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and with Article 4 para. 3 (d) (art. 14+P1-1, art. 14+4-3-d) of the Convention. The full text of its opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT", "20. In their memorial the Government requested the Court to hold", "\"that there has been no violation of the applicant ’ s rights under Article 14 taken in conjunction with Article 4 para. 3 (d) of the Convention and with Article 1 of Protocol No. 1 (art. 14+4-3-d, art. 14+P1-1)\".", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 PARA. 3 (d) (art. 14+4-3-d)", "21. Mr Karlheinz Schmidt complained that he was required to pay a fire service levy under an Act of the Land of Baden-Württemberg, which made it compulsory for men, but not women, to serve in the fire brigade or pay a financial contribution in lieu of such service (see paragraphs 12-14 above). He claimed to be the victim of discrimination on the ground of sex in breach of Article 14 taken in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) of the Convention, which provisions state as follows:", "Article 14 (art. 14)", "\"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, ...\"", "Article 4 (art. 4)", "\"1. ...", "2. No one shall be required to perform forced or compulsory labour.", "3. For the purpose of this Article (art. 4) the term ‘ forced or compulsory labour ’ shall not include:", "...", "(d) any work or service which forms part of normal civic obligations.\"", "A. Applicability", "22. As the Court has consistently held, Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to \"the enjoyment of the rights and freedoms\" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, in particular, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 35, para. 71, and the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, para. 36).", "The Court reiterates that paragraph 3 of Article 4 (art. 4-3) is not intended to \"limit\" the exercise of the right guaranteed by paragraph 2 (art. 4-2), but to \"delimit\" the very content of that right, for it forms a whole with paragraph 2 and indicates what \"the term ‘ forced or compulsory labour ’ shall not include\" ( ce qui\" n ’ est pas considéré comme ‘ travail forcé ou obligatoire ’ \"). This being so, paragraph 3 (art. 4-3) serves as an aid to the interpretation of paragraph 2 (art. 4-2). The four subparagraphs of paragraph 3 (art. 4-3), notwithstanding their diversity, are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of affairs (see the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 19, para. 38).", "23. Like the participants in the proceedings, the Court considers that compulsory fire service such as exists in Baden-Württemberg is one of the \"normal civic obligations\" envisaged in Article 4 para. 3 (d) (art. 4-3-d). It observes further that the financial contribution which is payable - in lieu of service - is, according to the Federal Constitutional Court (see paragraph 15 above), a \"compensatory charge\". The Court therefore concludes that, on account of its close links with the obligation to serve, the obligation to pay also falls within the scope of Article 4 para. 3 (d) (art. 4-3-d).", "It follows that Article 14 read in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) applies.", "B. Compliance", "24. For the purposes of Article 14 (art. 14) a difference of treatment is discriminatory if it \"has no objective and reasonable justification\", that is if it does not pursue a \"legitimate aim\" or if there is not a \"reasonable relationship of proportionality between the means employed and the aim sought to be realised\". Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see the Abdulaziz, Cabales and Balkandali judgment, cited above, pp. 35-36, para. 72). However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention (see the Schuler- Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21-22, para. 67, and the Burghartz v. Switzerland judgment of 22 February 1994, Series A no. 280-B, p. 29, para. 27).", "25. According to the applicant, the Contracting States do not enjoy any margin of appreciation as regards equality of the sexes. He argued that service in the fire brigade was comparable for men and for women and that account could be taken of the biological differences between the two sexes by a sensible division of the various tasks. The concern to protect women could not in itself justify a difference of treatment in this context. As at 31 December 1991, 68,612 women had served in fire brigades in Germany and even in Baden-Württemberg the fire brigades had accepted women since 1978. The financial contribution was of a purely fiscal nature, as in Baden-Württemberg no man had ever been called upon to serve. There was in any case discrimination since women were just as capable as men of paying the levy in question.", "26. The Commission in substance accepted the applicant ’ s argument.", "27. In the Government ’ s view, on the other hand, the difference of treatment is based on objective and reasonable grounds. Fire brigade duty is a traditional civic obligation in Baden-Württemberg, defined by the Federal Constitutional Court as a \"genuine and potential obligation to perform a public duty\". The Government maintained that, in making this duty compulsory solely for the male sex, the legislature had taken account of the specific requirements of service in the fire brigade and the physical and mental characteristics of women. The sole aim which it had pursued in this respect was the protection of women. The financial contribution was purely compensatory in nature.", "28. The Court notes that some German Länder do not impose different obligations for the two sexes in this field and that even in Baden-Württemberg women are accepted for voluntary service in the fire brigade.", "Irrespective of whether or not there can nowadays exist any justification for treating men and women differently as regards compulsory service in the fire brigade, what is finally decisive in the present case is that the obligation to perform such service is exclusively one of law and theory. In view of the continuing existence of a sufficient number of volunteers, no male person is in practice obliged to serve in a fire brigade. The financial contribution has - not in law but in fact - lost its compensatory character and has become the only effective duty. In the imposition of a financial burden such as this, a difference of treatment on the ground of sex can hardly be justified.", "29. There has accordingly been a violation of Article 14 taken in conjunction with Article 4 para. 3 (d) (art. 14+4-3-d) of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)", "30. In view of the finding in paragraphs 28 and 29 above, the Court does not consider it necessary also to examine the complaint that the applicant was the victim of discrimination contrary to Article 14 (art. 14) of the Convention as regards his right to the peaceful enjoyment of his possessions, guaranteed under Article 1 of Protocol No. 1 (P1-1).", "III. APPLICATION OF ARTICLE 50 (art. 50)", "31. Under Article 50 (art. 50),", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "32. The applicant sought the reimbursement of the fire service levy in respect of the years 1982 to 1984 (DM 225) and of the costs and expenses incurred before the national courts (DM 395).", "The Government raised no objection to this claim. The Delegate of the Commission regarded it as reasonable.", "33. On the basis of the evidence available to it, the Court allows the applicant ’ s claims in their entirety." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. Mrs Margrit Schuler-Zgraggen, a Swiss national born in 1948, was married in 1972. She lives at Schattdorf in the Canton of Uri.", "A. Granting of an invalidity pension", "8. In 1973 she began to work for the industrial firm of D. at Altdorf (Canton of Uri). Her employer regularly deducted contributions to the federal invalidity-insurance scheme from her wages (see paragraph 33 below).", "9. In the spring of 1975 she contracted open pulmonary tuberculosis.", "On 29 April 1976 she applied for a pension on the grounds of incapacity for work due to her illness.", "The Compensation Office ( Ausgleichskasse ) of the Swiss Machine and Metal Industry ( Schweizerische Maschinen - und Metallindustrie ) decided on 24 September 1976 to grant her half an invalidity pension for the period from 1 April to 31 October 1976.", "10. On 28 September 1978 the D. company dismissed the applicant with effect from 1 January 1979 on account of her illness.", "11. After Mrs Schuler-Zgraggen had made a further application for a pension, the Compensation Office determined on 25 March 1980 that she was physically and mentally unfit for work and decided to pay her a full pension with effect from 1 May 1978.", "In 1981 and 1982 the invalidity-insurance authorities reviewed her case and confirmed the award of a pension.", "12. On 4 May 1984 the applicant gave birth to a son.", "B. The proceedings before the Invalidity Insurance Board of the Canton of Uri", "1. The medical examinations", "13. In 1985 the Invalidity Insurance Board (IV- Kommission ) of the Canton of Uri asked Mrs Schuler-Zgraggen to undergo an examination at the invalidity-insurance authorities ’ medical centre ( Medizinische Abklärungsstelle der Invalidenversicherung ) in Lucerne.", "14. The medical centre asked Drs F. and B. for two reports ( Konsilien ) on the applicant ’ s health - one on the state of her lungs and the other a psychiatric report - and these were sent in on 10 and 24 December 1985 respectively. The centre prepared a summary on 14 January 1986, to which it attached Dr B. ’ s report; it concluded that the applicant was wholly unfit for clerical work and assessed her fitness for household work at 60-70%.", "2. The decision of 21 March 1986", "15. On 21 March 1986 the Invalidity Insurance Board cancelled, with effect from 1 May 1986, Mrs Schuler- Zgraggen ’ s pension, then amounting to 2,016 Swiss francs (CHF) a month, as her family circumstances had radically changed with the birth of her child, her health had improved, and she was 60-70% able to look after her home and her child.", "C. The proceedings before the Canton of Uri Appeals Board for Old Age, Survivors ’ and Invalidity Insurance", "1. The appeal and the applications for access to and handing over of documents", "16. On 21 April 1986 Mrs Schuler-Zgraggen lodged an appeal ( Beschwerde ) with the Canton of Uri Appeals Board for Old Age, Survivors ’ and Invalidity Insurance ( Rekurskommission für die Alters-, Hinterlassenen - und Invalidenversicherung - \"the Appeals Board\"). She claimed a full invalidity pension or, failing that, a half-pension, arguing, in particular, that the Federal Invalidity Insurance Act conferred on her the right to a pension so long as she was at least 66.66% incapacitated. So as to continue receiving her pension, she also asked the Board to order that her appeal should have suspensive effect.", "17. The Board dismissed the latter application on 7 May.", "18. On 22 May Mrs Schuler-Zgraggen dispensed with the services of her counsel.", "19. On 26 May she went to the Invalidity Insurance Board ’ s headquarters to inspect her medical file, which had been sent there by the Appeals Board, but she was not allowed to see it.", "On the same day she wrote to the Invalidity Insurance Board to complain about this and to demand to be able to see the file or at least a photocopy of certain important documents.", "In a letter of 28 July 1986 to the same board she again sought permission to inspect the file, in particular \"all the medical reports, records of examinations and results of laboratory tests from 1975 to 1986\", and the handing over of vital documents.", "2. The decision of 8 May 1987", "20. The Appeals Board dismissed the appeal on 8 May 1987.", "In the first place, the right to inspect the file did not imply a right to take documents away or to have photocopies made of them. It sufficed that the appellant had had an opportunity to study her file at the Appeals Board registry; she had not availed herself of that opportunity, despite numerous invitations to do so.", "In the second place, it could not be discounted that even if the appellant had been fit, she would have been content with looking after her home once her child had been born. At all events, having regard in particular to the examinations carried out by the medical centre, the invalidity in question was not enough, in the case of a mother and housewife, to make her eligible for a pension. Mrs Schuler-Zgraggen was in a position to be more active if she really wished to work despite her new family circumstances. The refusal to pay a pension could help her recover from her neurotic obsession with being unable to work.", "3. The subsequent proceedings", "21. On 11 August 1987 Mrs Schuler-Zgraggen wrote to the Appeals Board. She said she needed all the documents and expert reports in order to assess the prospects of succeeding in her legal action. She referred to a perfusion scintigram, a lung-function test, blood-gas analyses and a plethysmogram.", "22. In a letter of 13 August the Appeals Board replied as follows:", "\"... [T] hese documents provided the basis for the various medical reports. They are in our file only because of the right of inspection granted to you. We are therefore unable to make further documents available to you.\"", "D. The proceedings in the Federal Insurance Court", "1. The administrative-law appeal", "23. On 20 August 1987 Mrs Schuler-Zgraggen lodged an administrative-law appeal with the Federal Insurance Court against the decision of the Appeals Board. She applied for a full pension or, in the alternative, an order remitting the case to the authority of first instance. She also sought leave to inspect the whole of her file ( vollumfängliches Akteneinsichtsrecht ).", "24. The Federal Insurance Court received observations from the Compensation Office ’ s invalidity-insurance department on 20 October 1987 and from the Federal Social Insurance Office on 9 November. The Compensation Office submitted that the invalidity pension should cease; the Federal Social Insurance Office argued that the appeal should be dismissed, relying on a report by its own medical service, which referred in particular to the examination carried out by the medical centre.", "25. In a letter of 23 November 1987 the Federal Court informed the applicant that her complete file had been sent to the Appeals Board, which \"within the next fourteen days [would] make all the documents available [to her] for inspection\". She would then have a further ten days in which to supplement her administrative-law appeal submissions.", "26. On 30 November 1987 Mrs Schuler-Zgraggen inspected her file and photocopied a number of documents. On 1 December the file was returned to the Federal Insurance Court.", "27. Mr Schleifer, a lawyer, wrote to the Federal Court on 7 December to inform it that he would henceforth be representing the applicant and to ask for the case file to be forwarded to him; this was done on 11 December.", "28. On 11 January 1988 Mrs Schuler-Zgraggen filed supplementary pleadings in support of her appeal. They included a complaint that the medical centre took it for granted in its expert opinion that her lungs functioned normally, relying on the report of Dr F., which was not in the file however. She also criticised the arbitrariness of the Appeals Board ’ s opinion that even if she had been fit, she would have devoted herself to household tasks because of the birth of her child.", "2. The judgment of 21 June 1988", "29. The Federal Insurance Court gave judgment on 21 June 1988, holding that since 1 May Mrs Schuler-Zgraggen had been 33.33% incapacitated and was therefore eligible for a half-pension if she was in financial difficulties, and that as there was no evidence before it on this point, the case should be remitted to the Compensation Office.", "In such a case the court ’ s function was not limited to reviewing compliance with federal law and ascertaining that judicial discretion had not been exceeded or misused; it could also review the appropriateness of the impugned decision, and was bound neither by the facts found by the court below nor by the parties ’ claims.", "The applicant had succeeded in her complaint that the Appeals Board had failed to produce all the documents for inspection; she had been able to argue her case in the Federal Court, whose file she had had an opportunity to examine and which had considered the facts and the law with complete freedom.", "As to the pension claim, the court said:", "\"Regard must ... be had to the fact that many married women go out to work until their first child is born, but give up their jobs for as long as the children need full-time care and upbringing. This assumption based on experience of everyday life - experience which must be duly taken into account in determining the method to be applied for assessing incapacity ... - must be the starting-point in the present case. At the time the contested decision was taken, on 21 March 1986 ..., the child, who was born on 4 May 1984, was just under two years old, and accordingly, on the balance of probabilities ( nach dem Beweisgrad der überwiegenden Wahrscheinlichkeit )..., it must be assumed that the applicant, even if her health had not been impaired, would have been occupied only as a housewife and mother.\"", "In the court ’ s view, this made it unnecessary to examine whether Mrs Schuler-Zgraggen was fit to work in her previous employment; the question was rather one of determining to what extent, if at all, she had been restricted in her activities as a mother and housewife. Here it was sufficient to rely on the expert opinion produced by the medical centre. The fact that the lung specialist ’ s report was missing from the file was a defect ( ein gewisser Mangel ), but the examination carried out by the specialist in internal medicine made it possible to answer the question whether after 1980 there had been any change in the state of the applicant ’ s lungs. After that date the applicant had no longer been treated for tuberculosis and in that respect was perfectly fit to work. As to her neurosis, it had much diminished in the meantime; and a handicap resulting from her back problems could in theory be assessed at 25% at most.", "30. On 17 July 1989 the Compensation Office decided that Mrs Schuler-Zgraggen could not claim a half-pension since her income in 1986, 1987 and 1988 had greatly exceeded the maxima applicable in those years to \"cases of hardship\" (see paragraph 35 below).", "The applicant did not appeal." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Invalidity insurance", "31. Invalidity insurance is governed by two federal statutes - the Old Age and Survivors ’ Insurance Act of 20 December 1949 (\"OASIA\") and the Invalidity Insurance Act of 19 June 1959 (\"IIA\").", "1. The insured", "32. Invalidity insurance is compulsory for all persons resident in Switzerland (section 1 OASIA). Certain other people may contribute on a voluntary basis, notably Swiss nationals living abroad (section 2 OASIA).", "2. Administration", "33. Invalidity insurance is managed by cantonal and occupational associations under the supervision of the Confederation (sections 49-73 OASIA and sections 53-67 IIA).", "3. Financing", "34. At the present time invalidity insurance is financed partly from employers ’ and insured persons ’ contributions and partly from contributions by the State, in roughly equal proportions.", "There is no ceiling on contributions. Those paid by the insured are automatically deducted from earnings. Children, wives and widows of insured persons are exempted if not working, whereas others not gainfully employed pay from 43 to 1,200 Swiss francs a year (section 3 IIA and section 3 OASIA).", "4. The pensions", "35. Section 28 IIA deals with the assessment of incapacity.", "Provision is made in subsection 1 for pensions to be graduated in proportion to the degree of incapacity: a full pension is granted where incapacity is at least 66.66% and a half-pension where it is less than 50%. At the material time, 33.33% incapacity entitled a person to a half-pension only \"in cases of hardship\"; today incapacity must be at least 40% for a person to be eligible for a quarter-pension.", "Subsection 2 provides:", "\"For the assessment of incapacity, the income which the insured person could earn after becoming incapacitated and after taking any appropriate rehabilitation measures from work that could reasonably be expected of him in a stable labour market is compared with the income he could have earned if he had not been incapacitated.\"", "The amount of the pension is based on the insured ’ s annual average income, which is calculated by dividing the total income taken as a basis for assessing contributions by the number of contribution years (sections 36 et seq. IIA, taken together with sections 29 et seq. OASIA). For full ordinary pensions the maximum amount is double the minimum amount.", "Contributions are enforceable and the right to claim them is subject to a limitation period of five years (sections 15 and 16 OASIA).", "B. Appeal procedure", "1. Access to the file", "36. The Federal Court has derived from Article 4 of the Federal Constitution, which enshrines the principle of equality, an individual ’ s right to inspect his case file lodged with a judicial body.", "The right in question means being given an opportunity to have access to the official documents and to take notes but not to take the file away or to demand that copies should be made and handed over (judgment of 31 March 1982, Judgments of the Swiss Federal Court (ATF), vol. 108, part Ia, pp. 5-9).", "On this last point the Federal Court has, however, accepted that individuals may ask for copies, provided that this does not entail an excessive amount of work or substantial expense for the authority concerned (judgment of 4 September 1986, ATF, vol. 112, part Ia, pp. 377-381).", "2. Hearings", "(a) Before appellate bodies", "37. Section 85(2)(e) OASIA, first sentence, provides: \"If the circumstances so warrant, the parties shall be summoned to a hearing.\"", "(b) In the Federal Insurance Court", "38. Under Rule 14 para. 2 of the Federal Insurance Court ’ s Rules of Procedure,", "\"The parties shall not have a right to demand a hearing in appeal proceedings. By agreement with the division, the presiding judge may order a hearing to be held, on an application by one of the parties or of his own motion. The parties may inspect the file before the hearing ...\"", "PROCEEDINGS BEFORE THE COMMISSION", "39. Mrs Schuler-Zgraggen applied to the Commission on 29 December 1988. She complained, firstly, that her right to a fair trial (Article 6 para. 1 of the Convention) (art. 6-1) had been infringed in that she had had insufficient access to the file of the Appeals Board and there had been no hearing in the Federal Insurance Court. She also claimed that the assumption made by that court, that she would have given up working even if she had not had health problems, amounted to discrimination on the ground of sex (Article 14 taken together with Article 6 para. 1) (art. 14+6-1).", "40. The Commission declared the application (no. 14518/89) admissible on 30 May 1991. In its report of 7 April 1992 (made under Article 31) (art. 31), the Commission expressed the opinion that", "(a) there had been no breach of Article 6 para. 1 (art. 6-1) either on account of the failure to hold a hearing (by ten votes to five) or in respect of access to the file (by thirteen votes to two); and", "(b) there had been no breach of Article 14 taken together with Article 6 para. 1 (art. 14+6-1) (by nine votes to six).", "The full text of the Commission ’ s opinion and of the six dissenting opinions contained in the report is reproduced as an annex to this judgment [*]", "FINAL SUBMISSIONS TO THE COURT", "41. In their memorial the Government requested the Court to", "\"hold that in the present case (in so far as Article 6 para. 1 (art. 6-1) of the Convention is applicable and the applicant, with reference to a specific complaint, is a victim and, with reference to another complaint, has exhausted domestic remedies) there has not been a violation of Article 6 para. 1 (art. 6-1) of the Convention or of any other of its provisions\".", "42. Counsel for the applicant asked the Court to", "(a) \"continue along the path it took in the Feldbrugge and Deumeland cases and to rule that the rights claimed by the applicant in the present case likewise are mainly civil ones, falling within the ambit of Article 6 para. 1 (art. 6-1) of the Convention\";", "(b) \"hold that there has been a breach of Article 6 para. 1 (art. 6-1) with respect to the right to an adversarial hearing\"; and", "(c) \"hold that there has been a breach by the Federal Insurance Court of Article 14 taken together with Article 6 para. 1 (art. 14+6-1) of the Convention\".", "AS TO THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1)", "43. Mrs Schuler-Zgraggen claimed to be the victim of breaches of Article 6 para. 1 (art. 6-1), which provides:", "\"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...\"", "A. Applicability of Article 6 para. 1 (art. 6-1)", "44. It was common ground between the applicant and the Commission that this provision applied in the instant case.", "45. The Government maintained the contrary as, in their submission, the case had public-law features which clearly predominated. Firstly, the claimed right did not derive from a contract of employment, since affiliation was compulsory for the self-employed and the unemployed too. Secondly, award of the pension depended exclusively on the degree of incapacity, no account being taken either of the insured ’ s income or wealth or of the payment of contributions. Thirdly, the Swiss system was strikingly distinctive, in particular in that the financing of it was based on the principles of pay as you go, solidarity and partly drawing on tax revenues.", "46. The Court is here once again confronted with the issue of the applicability of Article 6 para. 1 (art. 6-1) to social-security disputes. The question arose earlier in the cases of Feldbrugge v. the Netherlands and Deumeland v. Germany, in which it gave judgment on 29 May 1986 (Series A nos. 99 and 100). At that time the Court noted that there was great diversity in the legislation and practice of the member States of the Council of Europe as regards the nature of the entitlement to insurance benefits under social-security schemes. Nevertheless, the development in the law that was initiated by those judgments and the principle of equality of treatment warrant taking the view that today the general rule is that Article 6 para. 1 (art. 6-1) does apply in the field of social insurance, including even welfare assistance (see the Salesi v. Italy judgment of 26 February 1993, Series A no. 257-E, pp. 59-60, para. 19).", "As in the two cases decided in 1986, State intervention is not sufficient to establish that Article 6 para. 1 (art. 6-1) is inapplicable; other considerations argue in favour of the applicability of Article 6 para. 1 (art. 6-1) in the instant case. The most important of these lies in the fact that despite the public-law features pointed out by the Government, the applicant was not only affected in her relations with the administrative authorities as such but also suffered an interference with her means of subsistence; she was claiming an individual, economic right flowing from specific rules laid down in a federal statute (see paragraph 35 above).", "In sum, the Court sees no convincing reason to distinguish between Mrs Schuler- Zgraggen ’ s right to an invalidity pension and the rights to social-insurance benefits asserted by Mrs Feldbrugge and Mr Deumeland.", "Article 6 para. 1 (art. 6-1) therefore applies in the instant case.", "B. Compliance with Article 6 para. 1 (art. 6-1)", "1. Access to the Appeals Board ’ s file", "47. Mrs Schuler-Zgraggen complained in the first place of insufficient access to the Appeals Board ’ s file.", "(a) The Government ’ s preliminary objection", "48. As they had done before the Commission, the Government raised an objection of inadmissibility based on lack of victim status, arguing that the applicant had not availed herself of the opportunity of examining the file at the Appeals Board ’ s registry.", "49. The Court notes that the applicant ’ s complaint relates not so much to inspecting the file as to having the documents in it handed over or, at any rate, securing photocopies of them. The objection must therefore be dismissed.", "(b) Merits of the complaint", "50. In Mrs Schuler- Zgraggen ’ s submission, the facts of her case - as often in the social-security field - were complex, and this made it necessary for her to submit documents to specialists. She should therefore have been granted the same facilities as the administrative departments, on whose premises the file was permanently held. Furthermore, she had never had access to Dr F. ’ s report on her lungs, so that she had been unable to submit it to her own expert.", "51. The Government disputed this submission. In the proceedings before the Appeals Board the applicant had not availed herself of the opportunity to inspect part of the file and take notes. In the Federal Insurance Court she had had access to all the documents - as had her lawyer, who had received them not long afterwards - and had photocopied some of them. As to Dr F. ’ s report, it was not strictly speaking part of the file, as the Federal Insurance Court moreover noted in its judgment of 21 June 1988; in addition, it was summarised in the medical centre ’ s report of 14 January 1986, which the applicant had seen. In short, the principle of equality of arms had not been contravened in any way.", "52. The Court finds that the proceedings before the Appeals Board did not enable Mrs Schuler-Zgraggen to have a complete, detailed picture of the particulars supplied to the Board. It considers, however, that the Federal Insurance Court remedied this shortcoming by requesting the Board to make all the documents available to the applicant - who was able, among other things, to make copies - and then forwarding the file to the applicant ’ s lawyer (see, as the most recent authority, mutatis mutandis, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, paras. 34-39). It also notes that neither the Appeals Board nor the Federal Insurance Court had Dr F. ’ s report before it.", "Since, taken as a whole, the impugned proceedings were therefore fair, there has not been a breach of Article 6 para. 1 (art. 6-1) in this respect.", "2. Federal Insurance Court hearing", "53. Mrs Schuler-Zgraggen also complained that there had been no hearing before the Federal Insurance Court.", "(a) The Government ’ s preliminary objection", "54. In the Government ’ s submission, the applicant had not exhausted domestic remedies, as she had failed to apply to the Federal Insurance Court for the proceedings to be oral and public. Admittedly, that court rarely held hearings, but it did not follow that such an application would have been bound to fail.", "55. In respect of this preliminary objection there is an estoppel, as the Government only raised it before the Commission after the decision on admissibility, whereas nothing prevented them from doing so earlier (see, as the most recent authority and mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 21, para. 45).", "(b) Merits of the complaint", "56. Mrs Schuler-Zgraggen submitted that the Federal Insurance Court should have ordered a hearing so as to form its own opinion of her and ensure that she had a fair trial.", "57. The Government considered, on the contrary, that in certain fields purely written court proceedings did not in any way prejudice the interests of the litigant. They emphasised a number of aspects. Firstly, the traditional characteristics of social-security disputes made oral presentation of arguments in which technical points and numerous figures were adduced difficult. Secondly, in the cases brought before it the Federal Insurance Court was free to review the facts and the law, and this made it more akin to an ordinary court of appeal. This was particularly so in administrative-law appeals, as here the Federal Court could rule on the appropriateness of the impugned decision and was not bound either by the cantonal authority ’ s findings of fact or by the submissions of the parties. Thirdly, the number of judgments - approximately 1,200 a year - would drop dramatically if public, oral proceedings were to be the rule; in such an event, the lengthening of the proceedings would seriously jeopardise access to the supreme court.", "58. The Court reiterates that the public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of Article 6 (art. 6-1). Admittedly, neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public, but any such waiver must be made in an unequivocal manner and must not run counter to any important public interest (see, among other authorities, the Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 20, para. 66).", "In the instant case the Federal Insurance Court ’ s Rules of Procedure provided in express terms for the possibility of a hearing \"on an application by one of the parties or of [the presiding judge ’ s] own motion\" (Rule 14 para. 2 - see paragraph 38 above). As the proceedings in that court generally take place without a public hearing, Mrs Schuler-Zgraggen could be expected to apply for one if she attached importance to it. She did not do so, however. It may reasonably be considered, therefore, that she unequivocally waived her right to a public hearing in the Federal Insurance Court.", "Above all, it does not appear that the dispute raised issues of public importance such as to make a hearing necessary. Since it was highly technical, it was better dealt with in writing than in oral argument; furthermore, its private, medical nature would no doubt have deterred the applicant from seeking to have the public present.", "Lastly, it is understandable that in this sphere the national authorities should have regard to the demands of efficiency and economy. Systematically holding hearings could be an obstacle to \"the particular diligence required in social-security cases\" (see the Deumeland v. Germany judgment previously cited, p. 30, para. 90) and could ultimately prevent compliance with the \"reasonable time\" requirement of Article 6 para. 1 (art. 6-1) (see, mutatis mutandis, the Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235-D, pp. 82-83, para. 39).", "There has accordingly been no breach of Article 6 para. 1 (art. 6-1) in respect of the oral and public nature of the proceedings.", "3. Independence of the medical experts", "59. At the hearing before the Court, counsel for Mrs Schuler-Zgraggen called in question the independence of doctors bound by a long-term contract to a social-security institution, on the ground that they received from that institution the greater part of their income.", "60. This was a new complaint; it had not been raised before the Commission and does not relate to the facts the Commission found within the limits of its decision on admissibility. That being so, the Court has no jurisdiction to consider it (see, as the most recent authority and mutatis mutandis, the Olsson v. Sweden (No. 2) judgment of 27 November 1992, Series A no. 250, pp. 30-31, para. 75).", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 6 PARA. 1 (art. 14+6-1)", "61. Mrs Schuler-Zgraggen said, lastly, that in the exercise of her right to a fair trial she had suffered discrimination on the ground of sex. She relied on Article 14 (art. 14), which provides:", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "A. The Government ’ s preliminary objection", "62. As they had done before the Commission, the Government raised an objection of inadmissibility based on failure to exhaust domestic remedies. The applicant, they submitted, had done no more than characterise the wording used by the Appeals Board as \"arbitrary\" and had therefore not made to the Federal Insurance Court a precise complaint relating to discrimination in the exercise of a right secured by the Convention.", "63. The Court adopts the Commission ’ s reasoning. Firstly, Mrs Schuler-Zgraggen objected to the terms of the Federal Insurance Court ’ s judgment of 21 June 1988, against which no appeal lay. Secondly, in her administrative-law appeal she had already criticised the (similar) assumption made by the Appeals Board in its decision of 8 May 1987. The objection is therefore unfounded.", "B. Merits of the complaint", "64. According to the applicant, the Federal Insurance Court based its judgment on an \"assumption based on experience of everyday life\", namely that many married women give up their jobs when their first child is born and resume it only later (see paragraph 29 above). It inferred from this that Mrs Schuler-Zgraggen would have given up work even if she had not had health problems. The applicant considered that if she had been a man, the Federal Insurance Court would never have made such an assumption, which was contradicted by numerous scientific studies.", "65. The Government argued that Article 6 para. 1 (art. 6-1) and thus, indirectly, Article 14 (art. 14) were not applicable, as the complaint was concerned with the taking of evidence, a sphere which essentially came within the State authorities ’ competence.", "66. The Court reiterates that the admissibility of evidence is governed primarily by the rules of domestic law, and that it is normally for the national courts to assess the evidence before them. The Court ’ s task under the Convention is to ascertain whether the proceedings, considered as a whole, including the way in which the evidence was submitted, were fair (see, as the most recent authority and, mutatis mutandis, the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, para. 43, and the Edwards v. the United Kingdom judgment previously cited, pp. 34-35, para. 34).", "67. In this instance, the Federal Insurance Court adopted in its entirety the Appeals Board ’ s assumption that women gave up work when they gave birth to a child. It did not attempt to probe the validity of that assumption itself by weighing arguments to the contrary.", "As worded in the Federal Court ’ s judgment, the assumption cannot be regarded - as asserted by the Government - as an incidental remark, clumsily drafted but of negligible effect. On the contrary, it constitutes the sole basis for the reasoning, thus being decisive, and introduces a difference of treatment based on the ground of sex only.", "The advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 77, p. 38, para. 78). The Court discerns no such reason in the instant case. It therefore concludes that for want of any reasonable and objective justification, there has been a breach of Article 14 taken together with Article 6 para. 1 (art. 14+6-1).", "III. APPLICATION OF ARTICLE 50 (art. 50)", "68. Under Article 50 (art. 50),", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Damage", "1. Non-pecuniary damage", "69. Mrs Schuler-Zgraggen claimed that she had sustained non-pecuniary damage, which she did not quantify, and sought payment of a provisional sum of CHF 22,500 for the length of the proceedings before the Convention institutions.", "70. The Government submitted that the publication of a judgment in which a violation was found would satisfy the requirements of Article 50 (art. 50). The Delegate of the Commission did not express any view.", "71. The Court considers that the applicant may have suffered non- pecuniary damage but that this judgment provides her with sufficient satisfaction for it.", "2. Pecuniary damage", "72. Mrs Schuler-Zgraggen also complained that she had lost the benefit of a full invalidity pension on account of proceedings incompatible with Articles 6 para. 1 and 14 (art. 6-1, art. 14). She did not, however, claim any specific sum.", "73. The Government pointed out that since 15 February 1992 Swiss law had enabled a victim of a violation found by the Court, or by the Committee of Ministers of the Council of Europe, to apply for a reopening of the impugned proceedings. They therefore considered that the question was not ready for decision.", "74. This is also the view of the Court. The question must accordingly be reserved and the further procedure must be fixed, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 54 paras. 1 and 4 of the Rules of Court).", "B. Costs and expenses", "75. Mrs Schuler-Zgraggen sought CHF 7,130.90 in respect of costs and expenses for the proceedings before the national judicial bodies (Mr Derrer : CHF 300; Mr Stöckli : CHF 2,694.20; Mr Wehrli : 2,936.70; own expenses: CHF 1,200). She also claimed CHF 14,285.70 for the proceedings before the Convention institutions, not including the expenses incurred by attending two hearings before the European Court, the one on 26 January 1993 and the one for delivery of the judgment.", "The Government found the claim excessive. The applicant had not incurred any legal costs before the cantonal authorities or the Federal Insurance Court, and before the Invalidity Insurance Board - at which stage she was assisted by three lawyers - she had not raised any complaint based on the Convention. A lump sum of CHF 5,000 would amply cover all the costs and expenses incurred in Switzerland and at Strasbourg.", "The Delegate of the Commission considered that the expenses incurred in the proceedings before the Appeals Board were not concerned with remedying a breach of the Convention and he invited the Court to apply its case-law on expenses incurred in the proceedings before the Strasbourg institutions.", "76. Making its assessment on an equitable basis as required by Article 50 (art. 50) and having regard to the criteria which it applies in this field, the Court awards the applicant CHF 7,500 under this head as matters stand." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1965 and lives in Perales Del Río (Madrid).", "6. At the material time she worked full-time in a hypermarket, mornings or afternoons, from Monday to Saturday", "7. On 26 February 2003, relying on Article 37 § 5 of the Labour Regulations, the applicant asked her employer to reduce her working hours (with a corresponding reduction of her salary) because she had custody of her son, who was under six years old. She applied to work half-time, from 4 p.m. to 9.15 p.m. from Monday to Wednesday.", "8. In a letter of 21 March 2003 her employer notified her that she would not be allowed to work the hours requested. Instead, he proposed that she work half days, from Monday to Saturday, in the morning or afternoon.", "9. An attempt by the applicant to reach an agreement with her employer with the help of the Madrid Mediation, Conciliation and Arbitration Board failed.", "10. On 20 May 2003 the applicant brought special proceedings before the Employment Tribunal to adjust her working hours to enable her to look after a child under six years of age. In a judgment of 25 September 2003 Madrid Employment Tribunal no. 1 dismissed the applicant’s case, considering that reductions in working hours should be made in the ordinary working day, whereas the applicant wanted to take several working days off (from Thursday to Saturday) and not to work mornings at all, which was not a reduction but a modification of the working day.", "11. On 6 November 2003 the applicant lodged an amparo appeal with the Constitutional Court, based on the right to a fair hearing and the principle prohibiting discrimination on grounds of sex. In a judgment of 15 January 2007 the Constitutional Court allowed the appeal, considering that the principle that there should be no discrimination based on gender had been violated in the applicant’s case. The court referred to the established case-law of the Court of Justice of the European Communities to the effect that “Community law precluded the application of a domestic measure which, although formulated in a neutral manner, affected a much higher percentage of women than men”, unless this was the result of objective factors unrelated to any discrimination on grounds of sex. It noted that “in the event of indirect discrimination it is not necessary to prove the existence of more favourable treatment reserved exclusively for men; it is sufficient that there exists a legal provision the interpretation or application of which adversely affects a group composed mainly of female employees”. The Constitutional Court found that there had been a breach of the principle prohibiting discrimination on grounds of sex, stating: “the court’s refusal to acknowledge [the applicant’s right to] a reduction of her working hours, without examining to what degree the reduction concerned was necessary in order to respect the constitutional purposes for which [the possibility of working reduced hours] had been introduced or what organisational difficulties the employer might have if [the applicant’s] right to work the hours concerned were to be acknowledged, constitutes an unjustified obstacle to [the applicant] in her work and in reconciling that work with her family life, and therefore discrimination on grounds of sex”. The Constitutional Court accordingly allowed the amparo appeal, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered that court to deliver a new judgment in keeping with the fundamental right in issue.", "12. In a new judgment of 6 September 2007 the Employment Tribunal again dismissed the applicant’s case. It considered that the reduction in working hours the applicant was seeking fell outside the scope of Article 37 of the Labour Regulations because she wanted to take Thursdays, Fridays and Saturdays off, especially as two of those days – Friday and Saturday – were the busiest days of the week. The court also held that, for the purposes of the constitutional protection she had been afforded, the applicant had not sufficiently justified the need for a reduction in her working hours that went beyond the bounds of a simple rearrangement of the ordinary working day.", "13. On 28 November 2007, the applicant lodged a new amparo appeal with the Constitutional Court, which that court examined as proceedings in execution of its judgment of 15 January 2007. On 29 October 2008 she informed the Constitutional Court that her son had since turned six years old, so that as a result of the length of the judicial proceedings she no longer had the right to the reduced working hours she had applied for in order to look after her son. As the Constitutional Court’s judgment could therefore no longer be enforced as such, the applicant claimed alternative compensation, under Article 18 § 2 of the Judicature Act ( Ley Orgánica del Poder Judicial, “the LOPJ”), in the amount of 40,986 euros (EUR).", "14. In a reasoned decision of 12 January 2009 the Constitutional Court held that its judgment of 15 January 2007 had not been correctly executed, and set aside the Employment Tribunal’s judgment of 6 September 2007. However, it found that there was no need to remit the case to the lower court in so far as a new judgment of that court would serve no purpose now that the child was over six, and that an award of compensation was not permitted under Article 92 of the Institutional Law on the Constitutional Court.", "15. A dissenting opinion was appended to the judgment. The dissenting judge deemed, inter alia, that the Constitutional Court should have awarded the applicant compensation, particularly in a case such as hers where compensation was the only way to protect the fundamental right in issue and restore the applicant’s right in full." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "...", "1 8. The relevant provisions of the Institutional Law on the Constitutional Court read as follows:", "...", "Article 55", "“1. A judgment granting constitutional protection ( amparo ) shall contain one or more of the following pronouncements:", "(a) a declaration of nullity of the decision, act or resolution that prevented the full exercise of protected rights and freedoms, specifying, where applicable, the scope of its consequences;", "(b) recognition of the public right or freedom [concerned] in the light of the constitutional provision relating to its substance;", "(c) full restoration of the appellant’s right or freedom and adoption, where appropriate, of measures conducive to its preservation;", "...”", "THE LAW", "...", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 COMBINED WITH ARTICLE 14 OF THE CONVENTION", "36. The applicant complained of a violation of her right to a fair hearing within a reasonable time and also that she had been a victim of discrimination on grounds of sex. She further alleged that she had been unable to obtain redress for the violation of her fundamental right as acknowledged by the Constitutional Court. She relied on Articles 6 § 1 and 14 of the Convention, which read as follows:", "Article 6", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "37. The Government disagreed.", "38. Since the Court is master of the characterisation to be given in law to the facts of the case, when giving notice of the present case to the parties it considered it appropriate to examine the applicant’s complaint from the point of view of the right of access to a court, of which the execution of a judgment given by any court must be regarded as an integral part (see, among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II).", "A. The parties’ submissions", "39. The Government pointed out that in its judgment of 15 January 2007 the Constitutional Court had found in favour of the applicant and allowed her amparo appeal in respect of her complaint concerning the principle of non ‑ discrimination when in fact, as her child had reached the prescribed age limit by the time the execution proceedings were pending before the Constitutional Court, the applicant was no longer entitled to the reduced working hours she had applied for. In the Government’s submission, the fact that it was materially impossible to execute the Constitutional Court’s judgment did not constitute a violation of the right to a fair hearing in this case, unlike the facts examined in the Hornsby judgment (cited above), which concerned the administrative authorities’ delay in complying with court judgments.", "40. As to the alleged infringement of the principle of non-discrimination, the Government submitted that the infringement had been acknowledged and remedied by the Constitutional Court. According to the Government, the principle of subsidiarity precluded the examination by the Court of the alleged violation of a right that had already been found by the domestic courts to have been violated.", "41. The applicant, on the other hand, considered that as the Constitutional Court had set aside the judgment of the Madrid Employment Tribunal, no court had examined the merits of her claim. She referred to the Hornsby case cited above, and submitted that the fact that the Constitutional Court had set aside the judgments of the lower court did not suffice to make the proceedings compatible with Article 6 of the Convention.", "B. The Court’s assessment", "42. The right of access to a court cannot oblige a State to have every single civil judgment executed, no matter what the judgment or the circumstances (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). In the present case the judgment in issue is the Constitutional Court’s judgment of 15 January 2007 which, after finding a violation of the principle of non-discrimination on grounds of sex, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered the that court to deliver a new judgment in keeping with the fundamental right in issue (see paragraph 11 above).", "43. However, the Madrid Employment Tribunal failed to act on the Constitutional Court’s judgment of 15 January 2007 as required. In a second judgment, of 6 September 2007, the Employment Tribunal considered that the applicant’s request to work fewer hours went beyond the limits authorised by law and that she had not sufficiently justified the need for a reduction in her working hours (see paragraph 12 above). The applicant had thus been obliged to appeal once again to the Constitutional Court. In its decision of 12 January 2009 that court found that its judgment of 15 January 2007 had been incorrectly executed, and set aside the second judgment of the Madrid Employment Tribunal (see paragraph 14 above).", "44. The Court reiterates that the State is required to provide litigants with a system whereby they are able to secure the proper execution of domestic court decisions. Its task is to consider whether the measures taken by the national authorities – a judicial authority in the instant case – to have the decisions concerned executed were adequate and sufficient (see Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003), for when the competent authorities are required to take action to execute a judicial decision and fail to do so – or to do it properly – their inertia engages the responsibility of the State under Article 6 § 1 of the Convention (see, mutatis mutandis, Scollo v. Italy, 28 September 1995, § 44, Series A no. 315 ‑ C).", "45. The Court observes that in the present case, in its decision of 12 January 2009, the Constitutional Court found a violation of the applicant’s right to the execution of its earlier judgment finding a violation of the principle of non-discrimination. The Court reiterates that a decision or measure in the applicant’s favour is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V). It notes that in spite of the two judgments of the Constitutional Court, the violation found by that domestic court has still not been repaired to this day.", "46. The Court observes that the applicant’s initial intention was not to seek compensation but to obtain recognition of her right to work reduced hours in order to be able to look after her son before he reached the age of six. Her claim for compensation only came later, when her son was no longer young enough for her to have the right to work shorter hours.", "47. In its decision of 12 January 2009 the Constitutional Court refused to award the applicant compensation in this respect and gave no indication as to any possibility of applying to another administrative or judicial body at a later stage.", "48. It is true that because of the child’s age when the proceedings ended, it was no longer possible to afford the applicant reparation in kind for the infringement of her right found by the courts. It is not for the Court to tell the respondent State how it should provide for redress in the framework of the amparo appeal. It can only note that the protection afforded by the Constitutional Court proved ineffective in the present case. On the one hand the applicant’s request to work special hours was never answered on the merits, even though the two rulings against her by the Employment Tribunal were set aside. And on the other hand the applicant’s amparo appeal before the Constitutional Court served no purpose as that court found that Article 55 § 1 of the institutional Law on the Constitutional Court made no provision for compensation to redress a violation of a fundamental right.", "The failure to restore the applicant’s rights in full made the protection afforded by the Constitutional Court’s amparo appeal finding in her favour illusory in the present case.", "49. The Court accordingly finds that there has been a violation of Article 6 § 1 in conjunction with Article 14 of the Convention.", "...", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "54. Article 41 of the Convention provides", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "55. The applicant claimed EUR 40,986 in respect of non-pecuniary damage. This is the same amount she claimed before the Spanish Constitutional Court.", "56. The Government considered that the finding of a violation by the Constitutional Court in itself constituted sufficient just satisfaction in the present case. In any event they did not agree with the assessment criterion used by the applicant to fix the amount claimed.", "57. The Court considers that the applicant should be awarded EUR 16,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "58. The applicant claimed EUR 5,760 for the costs and expenses incurred in the proceedings before the Court, which is 12% of the amount she claimed in respect of non-pecuniary damage, but no bills have been produced.", "59. The Government noted that this claim was unsubstantiated and considered it inappropriate to award a percentage of the amount awarded in respect of the applicant’s main claim to cover her costs and expenses. They left it to the Court’s judgment to fix the amount to be awarded.", "60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Chamber may reject the claim in whole or in part (see Buscarini and Others v. Saint-Marin [GC], no. 24645/94, § 48, ECHR 1999-I, and Gómez de Liaño y Botella v. Spain, no. 21369/04, § 86, 22 July 2008). In the present case the applicant has failed to submit any invoices to substantiate her claim. The Court accordingly considers that no award should be made under this head and dismisses the claim.", "C. Default interest", "61. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1965 and lives in Perales Del Río (Madrid).", "6. At the material time she worked full-time in a hypermarket, mornings or afternoons, from Monday to Saturday", "7. On 26 February 2003, relying on Article 37 § 5 of the Labour Regulations, the applicant asked her employer to reduce her working hours (with a corresponding reduction of her salary) because she had custody of her son, who was under six years old. She applied to work half-time, from 4 p.m. to 9.15 p.m. from Monday to Wednesday.", "8. In a letter of 21 March 2003 her employer notified her that she would not be allowed to work the hours requested. Instead, he proposed that she work half days, from Monday to Saturday, in the morning or afternoon.", "9. An attempt by the applicant to reach an agreement with her employer with the help of the Madrid Mediation, Conciliation and Arbitration Board failed.", "10. On 20 May 2003 the applicant brought special proceedings before the Employment Tribunal to adjust her working hours to enable her to look after a child under six years of age. In a judgment of 25 September 2003 Madrid Employment Tribunal no. 1 dismissed the applicant’s case, considering that reductions in working hours should be made in the ordinary working day, whereas the applicant wanted to take several working days off (from Thursday to Saturday) and not to work mornings at all, which was not a reduction but a modification of the working day.", "11. On 6 November 2003 the applicant lodged an amparo appeal with the Constitutional Court, based on the right to a fair hearing and the principle prohibiting discrimination on grounds of sex. In a judgment of 15 January 2007 the Constitutional Court allowed the appeal, considering that the principle that there should be no discrimination based on gender had been violated in the applicant’s case. The court referred to the established case-law of the Court of Justice of the European Communities to the effect that “Community law precluded the application of a domestic measure which, although formulated in a neutral manner, affected a much higher percentage of women than men”, unless this was the result of objective factors unrelated to any discrimination on grounds of sex. It noted that “in the event of indirect discrimination it is not necessary to prove the existence of more favourable treatment reserved exclusively for men; it is sufficient that there exists a legal provision the interpretation or application of which adversely affects a group composed mainly of female employees”. The Constitutional Court found that there had been a breach of the principle prohibiting discrimination on grounds of sex, stating: “the court’s refusal to acknowledge [the applicant’s right to] a reduction of her working hours, without examining to what degree the reduction concerned was necessary in order to respect the constitutional purposes for which [the possibility of working reduced hours] had been introduced or what organisational difficulties the employer might have if [the applicant’s] right to work the hours concerned were to be acknowledged, constitutes an unjustified obstacle to [the applicant] in her work and in reconciling that work with her family life, and therefore discrimination on grounds of sex”. The Constitutional Court accordingly allowed the amparo appeal, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered that court to deliver a new judgment in keeping with the fundamental right in issue.", "12. In a new judgment of 6 September 2007 the Employment Tribunal again dismissed the applicant’s case. It considered that the reduction in working hours the applicant was seeking fell outside the scope of Article 37 of the Labour Regulations because she wanted to take Thursdays, Fridays and Saturdays off, especially as two of those days – Friday and Saturday – were the busiest days of the week. The court also held that, for the purposes of the constitutional protection she had been afforded, the applicant had not sufficiently justified the need for a reduction in her working hours that went beyond the bounds of a simple rearrangement of the ordinary working day.", "13. On 28 November 2007, the applicant lodged a new amparo appeal with the Constitutional Court, which that court examined as proceedings in execution of its judgment of 15 January 2007. On 29 October 2008 she informed the Constitutional Court that her son had since turned six years old, so that as a result of the length of the judicial proceedings she no longer had the right to the reduced working hours she had applied for in order to look after her son. As the Constitutional Court’s judgment could therefore no longer be enforced as such, the applicant claimed alternative compensation, under Article 18 § 2 of the Judicature Act ( Ley Orgánica del Poder Judicial, “the LOPJ”), in the amount of 40,986 euros (EUR).", "14. In a reasoned decision of 12 January 2009 the Constitutional Court held that its judgment of 15 January 2007 had not been correctly executed, and set aside the Employment Tribunal’s judgment of 6 September 2007. However, it found that there was no need to remit the case to the lower court in so far as a new judgment of that court would serve no purpose now that the child was over six, and that an award of compensation was not permitted under Article 92 of the Institutional Law on the Constitutional Court.", "15. A dissenting opinion was appended to the judgment. The dissenting judge deemed, inter alia, that the Constitutional Court should have awarded the applicant compensation, particularly in a case such as hers where compensation was the only way to protect the fundamental right in issue and restore the applicant’s right in full." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "...", "1 8. The relevant provisions of the Institutional Law on the Constitutional Court read as follows:", "...", "Article 55", "“1. A judgment granting constitutional protection ( amparo ) shall contain one or more of the following pronouncements:", "(a) a declaration of nullity of the decision, act or resolution that prevented the full exercise of protected rights and freedoms, specifying, where applicable, the scope of its consequences;", "(b) recognition of the public right or freedom [concerned] in the light of the constitutional provision relating to its substance;", "(c) full restoration of the appellant’s right or freedom and adoption, where appropriate, of measures conducive to its preservation;", "...”", "THE LAW", "...", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 COMBINED WITH ARTICLE 14 OF THE CONVENTION", "36. The applicant complained of a violation of her right to a fair hearing within a reasonable time and also that she had been a victim of discrimination on grounds of sex. She further alleged that she had been unable to obtain redress for the violation of her fundamental right as acknowledged by the Constitutional Court. She relied on Articles 6 § 1 and 14 of the Convention, which read as follows:", "Article 6", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "37. The Government disagreed.", "38. Since the Court is master of the characterisation to be given in law to the facts of the case, when giving notice of the present case to the parties it considered it appropriate to examine the applicant’s complaint from the point of view of the right of access to a court, of which the execution of a judgment given by any court must be regarded as an integral part (see, among other authorities, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II).", "A. The parties’ submissions", "39. The Government pointed out that in its judgment of 15 January 2007 the Constitutional Court had found in favour of the applicant and allowed her amparo appeal in respect of her complaint concerning the principle of non ‑ discrimination when in fact, as her child had reached the prescribed age limit by the time the execution proceedings were pending before the Constitutional Court, the applicant was no longer entitled to the reduced working hours she had applied for. In the Government’s submission, the fact that it was materially impossible to execute the Constitutional Court’s judgment did not constitute a violation of the right to a fair hearing in this case, unlike the facts examined in the Hornsby judgment (cited above), which concerned the administrative authorities’ delay in complying with court judgments.", "40. As to the alleged infringement of the principle of non-discrimination, the Government submitted that the infringement had been acknowledged and remedied by the Constitutional Court. According to the Government, the principle of subsidiarity precluded the examination by the Court of the alleged violation of a right that had already been found by the domestic courts to have been violated.", "41. The applicant, on the other hand, considered that as the Constitutional Court had set aside the judgment of the Madrid Employment Tribunal, no court had examined the merits of her claim. She referred to the Hornsby case cited above, and submitted that the fact that the Constitutional Court had set aside the judgments of the lower court did not suffice to make the proceedings compatible with Article 6 of the Convention.", "B. The Court’s assessment", "42. The right of access to a court cannot oblige a State to have every single civil judgment executed, no matter what the judgment or the circumstances (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). In the present case the judgment in issue is the Constitutional Court’s judgment of 15 January 2007 which, after finding a violation of the principle of non-discrimination on grounds of sex, set aside the Madrid Employment Tribunal’s judgment of 25 September 2003 and ordered the that court to deliver a new judgment in keeping with the fundamental right in issue (see paragraph 11 above).", "43. However, the Madrid Employment Tribunal failed to act on the Constitutional Court’s judgment of 15 January 2007 as required. In a second judgment, of 6 September 2007, the Employment Tribunal considered that the applicant’s request to work fewer hours went beyond the limits authorised by law and that she had not sufficiently justified the need for a reduction in her working hours (see paragraph 12 above). The applicant had thus been obliged to appeal once again to the Constitutional Court. In its decision of 12 January 2009 that court found that its judgment of 15 January 2007 had been incorrectly executed, and set aside the second judgment of the Madrid Employment Tribunal (see paragraph 14 above).", "44. The Court reiterates that the State is required to provide litigants with a system whereby they are able to secure the proper execution of domestic court decisions. Its task is to consider whether the measures taken by the national authorities – a judicial authority in the instant case – to have the decisions concerned executed were adequate and sufficient (see Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003), for when the competent authorities are required to take action to execute a judicial decision and fail to do so – or to do it properly – their inertia engages the responsibility of the State under Article 6 § 1 of the Convention (see, mutatis mutandis, Scollo v. Italy, 28 September 1995, § 44, Series A no. 315 ‑ C).", "45. The Court observes that in the present case, in its decision of 12 January 2009, the Constitutional Court found a violation of the applicant’s right to the execution of its earlier judgment finding a violation of the principle of non-discrimination. The Court reiterates that a decision or measure in the applicant’s favour is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V). It notes that in spite of the two judgments of the Constitutional Court, the violation found by that domestic court has still not been repaired to this day.", "46. The Court observes that the applicant’s initial intention was not to seek compensation but to obtain recognition of her right to work reduced hours in order to be able to look after her son before he reached the age of six. Her claim for compensation only came later, when her son was no longer young enough for her to have the right to work shorter hours.", "47. In its decision of 12 January 2009 the Constitutional Court refused to award the applicant compensation in this respect and gave no indication as to any possibility of applying to another administrative or judicial body at a later stage.", "48. It is true that because of the child’s age when the proceedings ended, it was no longer possible to afford the applicant reparation in kind for the infringement of her right found by the courts. It is not for the Court to tell the respondent State how it should provide for redress in the framework of the amparo appeal. It can only note that the protection afforded by the Constitutional Court proved ineffective in the present case. On the one hand the applicant’s request to work special hours was never answered on the merits, even though the two rulings against her by the Employment Tribunal were set aside. And on the other hand the applicant’s amparo appeal before the Constitutional Court served no purpose as that court found that Article 55 § 1 of the institutional Law on the Constitutional Court made no provision for compensation to redress a violation of a fundamental right.", "The failure to restore the applicant’s rights in full made the protection afforded by the Constitutional Court’s amparo appeal finding in her favour illusory in the present case.", "49. The Court accordingly finds that there has been a violation of Article 6 § 1 in conjunction with Article 14 of the Convention.", "...", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "54. Article 41 of the Convention provides", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "55. The applicant claimed EUR 40,986 in respect of non-pecuniary damage. This is the same amount she claimed before the Spanish Constitutional Court.", "56. The Government considered that the finding of a violation by the Constitutional Court in itself constituted sufficient just satisfaction in the present case. In any event they did not agree with the assessment criterion used by the applicant to fix the amount claimed.", "57. The Court considers that the applicant should be awarded EUR 16,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "58. The applicant claimed EUR 5,760 for the costs and expenses incurred in the proceedings before the Court, which is 12% of the amount she claimed in respect of non-pecuniary damage, but no bills have been produced.", "59. The Government noted that this claim was unsubstantiated and considered it inappropriate to award a percentage of the amount awarded in respect of the applicant’s main claim to cover her costs and expenses. They left it to the Court’s judgment to fix the amount to be awarded.", "60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, under Rule 60 § 2 of the Rules of Court itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Chamber may reject the claim in whole or in part (see Buscarini and Others v. Saint-Marin [GC], no. 24645/94, § 48, ECHR 1999-I, and Gómez de Liaño y Botella v. Spain, no. 21369/04, § 86, 22 July 2008). In the present case the applicant has failed to submit any invoices to substantiate her claim. The Court accordingly considers that no award should be made under this head and dismisses the claim.", "C. Default interest", "61. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1945 and lives in Bobadela.", "A. The background to the case", "6. In December 1993 the applicant became a patient of the gynaecology department of the Alfredo da Costa Maternity Hospital (since renamed the Central Lisbon Hospital – Centro Hospitalar de Lisboa Central, hereinafter “the CHLC”).", "7. On 9 December 1993 the applicant was diagnosed with bartholinitis, a gynaecological disease, on the left side of her vagina ( bartholinite à esquerda ). She started treatment, which included drainages ( drenagens ). After each drainage the Bartholin gland would swell, causing the applicant considerable pain. She would thus require a second drainage and painkillers.", "8. She was offered surgery for the condition during a consultation at the beginning of 1995.", "9. On 21 May 1995 the applicant was admitted to the CHLC for a surgical procedure to remove the left Bartholin gland. On 22 May 1995 the applicant had both glands, on the left and right sides of the vagina, removed.", "10. On an unknown date after being discharged, the applicant began to experience intense pain and a loss of sensation in the vagina. She also suffered from urinary incontinence, had difficulty sitting and walking, and could not have sexual relations.", "11. On an unknown date the applicant was informed after being examined at a private clinic that the left pudendal nerve ( nervo pudenda do lado esquerdo ) had been injured during the operation.", "B. Domestic proceedings against the hospital", "12. On 26 April 2000 the applicant brought a civil action in the Lisbon Administrative Court ( Tribunal Administrativo do Círculo de Lisboa ) against the CHLC under the State Liability Act ( ação de responsabilidade civil extracontratual por facto ilícito ), seeking damages of 70,579,779 escudos (PTE), equivalent to 325,050 ,020 euros (EUR), of which PTE 50,000,000 (EUR 249,399) was in respect of non-pecuniary damage owing to the physical disability caused by the operation.", "13. On 4 October 2013 the Lisbon Administrative Court ruled partly in favour of the applicant. It established, inter alia, the following facts:", "(i) that the applicant had suffered since 1995 from a physical deficiency which had given her an overall permanent degree of disability of 73% and that the disability had resulted from the left pudendal nerve being cut;", "(ii) after being discharged from hospital, the applicant had complained of pain associated with insensitivity in the part of the body which had been operated on and which had become swollen;", "(iii) the left pudendal nerve had been injured during the operation, which had caused the pain from which the applicant was suffering, the loss of sensitivity and the swelling in the vaginal area;", "(iv) the applicant had suffered from a decrease in vaginal sensitivity due to the partial lesion to the left pudendal nerve.", "14. On the merits, the Lisbon Administrative Court found that the surgeon had acted recklessly by not fulfilling his objective duty of care, in breach of leges artis, and established that there was a causal link between his conduct and the injury to the applicant ’ s left pudendal nerve. The Lisbon Administrative Court also established that it was that injury which caused her, among other problems, the pain and loss of sensation in the vagina and urinary incontinence. As a consequence, she had difficulty walking, sitting and having sexual relations, which, all together, made her feel diminished as a woman. Consequently, the applicant was also depressed, had suicidal thoughts and avoided contact with members of her family and friends. For those reasons the Lisbon Administrative Court considered that the applicant should be awarded EUR 80,000 in compensation for non-pecuniary damage. In respect of pecuniary damage, the Lisbon Administrative Court awarded her EUR 92,000, of which EUR 16,000 was for the services of a maid the applicant had had to hire to help her with household tasks.", "15. On an unknown date the CHLC appealed to the Supreme Administrative Court ( Supremo Tribunal Administrativo ) against the judgment of the Lisbon Administrative Court. The applicant lodged a counter -appeal ( recurso subordinado ), arguing that she should have received EUR 249,399 in compensation and that the CHLC ’ s appeal should be declared inadmissible. An opinion from the Attorney General ’ s Office attached to the Supreme Administrative Court ( Procuradora Geral Adjunta junto do Supremo Tribunal Administrativo ) stated that the CHLC ’ s appeal should be dismissed because it had been established that there had been a violation of leges artis. As a consequence, the various requirements of the obligation to pay compensation had been verified and the first-instance court had decided on compensation in an equitable and proper way.", "16. On 9 October 2014 the Supreme Administrative Court upheld the first-instance judgment on the merits but reduced, inter alia, the amount that had been awarded for the services of the maid from EUR 16,000 to EUR 6,000 and the compensation for non-pecuniary damage from EUR 80,000 to EUR 50,000. The relevant part of the judgment on those points reads as follows:", "“ ... with respect to damages related to the charges for the maid ... [the plaintiff] could not show the amount paid under that head. Also ... we consider that the award of EUR 16,000 under that head is manifestly excessive.", "Indeed, (1) it has not been established that the plaintiff had lost her capacity to take care of domestic tasks, (2) professional activity outside the home is one thing while domestic work is another, and (3) considering the age of her children, she [the plaintiff] probably only needed to take care of her husband; this leads us to the conclusion that she did not need to hire a full - time maid ...", "Lastly, as regards non-pecuniary damage, it is important to set an amount which compensates the plaintiff for her pain and loss of sensation and swelling in the vaginal area, and for the difficulty sitting and walking, which causes her distress and prevents her from going about her everyday life, forcing her to use sanitary towels on a daily basis to conceal urinary and faecal incontinence and which has limited her sexual activity, making her feel diminished as a woman. In addition, there is no medical solution to her condition. All this has caused her severe depression, expressing itself in anxiety and somatic symptoms manifested in the difficulty she has sleeping, deep disgust and frustration with the situation in which she finds herself, which has turned her into a very unhappy person and which inhibits her from establishing relationships with others and has caused her to stop visiting family and friends, from going to the beach and theatre and which has given her suicidal thoughts.", "It should be noted, however, that the plaintiff has been suffering from the gynaecological condition for a long time (at least since 1993) and that she had already undergone various kinds of treatment without any acceptable result and that it was that lack of results and the impossibility of curing the condition otherwise that was the motivation for surgery. She had already had unbearable pain and symptoms of depression before [surgery]. This means that the plaintiff ’ s complaints are not new and that the surgical procedure only aggravated an already difficult situation, a fact which cannot be ignored when setting the amount of compensation.", "Additionally, it should not be forgotten that at the time of the operation the plaintiff was already 50 years old and had two children, that is, an age when sex is not as important as in younger years, its significance diminishing with age.", "Thus, having regard to all those aspects, we believe that the compensation awarded at first instance exceeded what could be considered reasonable and, as such, the plaintiff should be awarded EUR 50,000 in compensation [in respect of non-pecuniary damage] .”", "17. On 29 October 2014 the Attorney General ’ s Office attached to the Supreme Administrative Court applied to the Supreme Administrative Court to have the judgment of 9 October 2014 declared null and void ( nulidade do acórdão ) in the part concerning the amount awarded for non-pecuniary damage. It argued that the reasoning in the judgment and the decision on the amount of compensation were contradictory. It further submitted that the compensation award should not have taken account of the applicant ’ s symptoms before the medical intervention, as if only a worsening of those symptoms had been at stake. The relevant parts of the application read as follows:", "“ ...", "III – In the instant case, we are dealing with surgical intervention which aimed exclusively at extracting the Bartholin glands.", "...", "During that surgical procedure the left pudendal nerve was partly damaged.", "The pudendal nerve ... is a different organ from the one which was the object of the surgical intervention.", "Following the extraction of the glands the plaintiff suffered damage which was considered as being established and which specifically arose from the lesion in question.", "IV- In view of the factual basis of the judgment and having regard to the fact that ‘ in the absence of unlikely and unexpected occurrences doctors would have cured the plaintiff ’ s illness and she could have returned to her normal life ’, the decision setting the amount of compensation for non-pecuniary damage should not have taken account of the plaintiff ’ s pain and symptoms of depression prior to the surgical intervention as if they had worsened.", "That is because, according to the judgment, they would have disappeared once the Bartholin glands had been removed and the plaintiff ’ s condition cured by surgery.", "V – The reasoning in the judgment leads logically to a different decision.", "That would be to set compensation for non-pecuniary damage on the basis of the fact that the plaintiff would have been cured if the pudendal nerve had not been injured. ”", "18. On 4 November 2014 the applicant applied to the Supreme Administrative Court to join the Attorney General ’ s appeal of 29 October 2014, arguing that the judgment of 9 October 2014 should be declared null and void in the part concerning the amount of non-pecuniary damage she had been awarded.", "19. On 29 January 2015 the Supreme Administrative Court dismissed the appeals by the Attorney General ’ s Office and the applicant and upheld its judgment of 9 October 2014. It considered that the causal link between the injury to the pudendal nerve and the alleged damage had been established. However, that injury had not been the only cause of damage to the applicant. In the opinion of the judges of the Supreme Administrative Court, the applicant ’ s health problems prior to the operation, and her gynaecological and psychological symptoms in particular, could not be ignored and had been aggravated by the procedure.", "IV. Report BY the permanent observatory on PORTUGUESE justice", "29. A report by the Permanent Observatory on Portuguese Justice ( Observatório permanente da justiça portuguesa ), drafted at the request of the Commission for Citizenship and Gender Equality ( Comissão para a Cidadania e Igualdade de Género ), about how the judicial authorities deal with cases of domestic violence, was published in November 2016 [1]. It pointed out that the approach of magistrates to cases often differed, depending on the economic, cultural and social background of the accused. The report also expressed concerns over prevailing legal and institutional sexism. It referred by way of example to a judgment concerning a man who had physically assaulted his wife and the fact that she was having sexual intercourse with other men was viewed as a mitigating factor (pp. 231-32 of the report)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution of the Portuguese Republic", "20. The relevant provisions of the Constitution read as follows:", "Article 13 – Principle of equality", "“1. All citizens possess the same social dignity and are equal before the law.", "2. No one may be privileged, favoured, prejudiced, deprived of any right or exempted from any duty for reasons of ancestry, sex, race, language, territory of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation.”", "Article 16 – Scope and interpretation of fundamental rights", "“ 1. The fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international law and legal rules.", "2. The constitutional precepts concerning fundamental rights must be interpreted and construed in harmony with the Universal Declaration of Human Rights. ”", "Article 18 – Legal force", "“ 1. The constitutional norms with regard to rights, freedoms and guarantees are directly applicable to and binding on public and private entities.", "2. The law may only restrict rights, freedoms and guarantees in cases expressly provided for in the Constitution, and such restrictions must be limited to those needed to safeguard other constitutionally protected rights and interests.", "3. Laws that restrict rights, freedoms and guarantees must have a general and abstract nature and shall not have retroactive effect or reduce the extent or scope of the essential content of constitutional norms. ”", "Article 25 – Right to personal integrity", "“ 1. Every person ’ s moral and physical integrity is inviolable.", "2. No one shall be subjected to torture or to cruel, degrading or inhuman treatment or punishment.”", "B. Portuguese Civil Code", "21. The relevant provisions of the Code reads as follows:", "Article 70 – protection of personality", "1. The law protects individuals against any unlawful offence or threat of offence against their physical or moral person.", "2. Regardless of any civil liability which may arise, the person threatened or offended against may request measures that are appropriate to the circumstance of the case in order to avoid the realisation of the threat or to mitigate the effects of an offence already committed.”", "Article 483", "“1. Whosoever, either intentionally or recklessly ( mera culpa ), unlawfully violates the rights of others or any legal provision intended to protect the interests of others is obliged to compensate the injured party for the damage resulting from that breach.”", "Article 487", "“1. It is for the injured party to prove liability for damage through negligence ( culpa ), unless there is a legal presumption of it.", "2. In the absence of any other legal criteria, negligence is assessed with reference to the diligence of a bonus pater familias, given the circumstances of the case.”", "C. Legislative Decree no. 48051 of 21 November 1967", "22. Legislative Decree no. 48051, in force at the time the proceedings were instituted by the applicant, governs the State ’ s non-contractual civil liability. It contains the following provisions of relevance to the instant case:", "Article 2 § 1", "“The State and other public bodies shall be liable to compensate third parties in civil proceedings for breaches of their rights or of legal provisions designed to protect the interests of such parties caused by unlawful acts committed with negligence ( culpa ) by their agencies or officials in the performance of their duties or as a consequence thereof.”", "Article 4", "“1. The negligence ( culpa ) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code.”", "Article 6", "“For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.", "In accordance with the case-law concerning the State ’ s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage.”", "D. Case-law", "23. In a judgment of 4 March 2008 the Supreme Court of Justice considered allegations of medical malpractice and had to assess whether the amount the plaintiff had been awarded in respect of non-pecuniary damage had been excessive. The plaintiff alleged that he had been subjected to a full prostatectomy ( prostatectomia radical ) in which his prostate gland had been removed and he had become impotent and incontinent as a result. The Supreme Court of Justice found that there had been a medical error and awarded the plaintiff EUR 224,459.05 in compensation for non-pecuniary damage. To justify the amount awarded the court stated :", "“It is irrefutable that the plaintiff has suffered non-pecuniary damage which was caused by the defendant. The devastating and irreversible consequence was a complete prostatectomy which left the plaintiff impotent and incontinent. The medical intervention was not even required given that the plaintiff had only been suffering from inflammation of the prostate.", "...", "It is clear that because of the defendant ’ s actions, the plaintiff, who at the time was almost 59 years old, underwent a radical change in his social, family and personal life as he is impotent and incontinent and will never again be able to live life as he used to. He is now a person whose life is physically and psychologically painful, and has therefore suffered irreversible consequences.", "It is not unreasonable to assert that his self-esteem has suffered a tremendous blow .”", "24. The Supreme Court of Justice considered another case of alleged medical malpractice and its consequences on 26 June 2014. The plaintiff in question had been wrongly diagnosed with cancer and had consequently had a prostatectomy. The court considered that the compensation set by the Lisbon Court of Appeal in respect of non-pecuniary damage ( EUR 100,000 ) was not excessive given that the plaintiff, 55 years old at the time, had suffered severe mental trauma for two months as a result of the defendant ’ s actions in erroneously diagnosing cancer, which had caused him great physical suffering. In addition, the prostatectomy had had a permanent effect on his sex life.", "III. RELEVANT INTERNATIONAL LAW", "A. The United Nations Convention on the Elimination of All forms of Discrimination against Women", "25. The relevant Articles of the 1970 UN Convention on the Elimination of all Forms of Discrimination against Women, ratified by Portugal on 30 July 1980, read as follows:", "Article 1", "“For the purposes of the present Convention, the term ‘ discrimination against women ’ shall mean any distinction, exclusion or restriction on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”", "Article 2", "“State Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:", "(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;", "(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;", "(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;", "(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation ... ”", "Article 5", "“States Parties shall take all appropriate measures:", "(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”", "26. In its Concluding Observations on the combined eighth and ninth periodic reports on Portugal, adopted at its 1337 th and 1338 th meetings on 28 October 2015 (CEDAW/C/PRT/CO/8-9), the CEDAW Committee stated, in particular, as follows:", "“ ...", "Stereotypes", "20. The Committee welcomes the State party ’ s efforts to combat gender stereotypes through education in schools, promotional materials and legislation prohibiting sex-based and gender-based discrimination in the media. It notes with concern, however, that gender stereotypes continue to persist in all spheres of life, as well as in the media, and that the State party lacks a comprehensive strategy for addressing discriminatory stereotypes.", "21. The Committee recommends that the State party further strengthen its efforts to overcome stereotypical attitudes regarding the roles and responsibilities of women and men in the family and in society by adopting a comprehensive strategy addressing the issue and continuing to implement measures to eliminate discriminatory gender stereotypes, educating the public and establishing, as soon as possible, a mechanism for regulating the use of discriminatory gender stereotypes in the media.”", "B. Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)", "27. On 5 May 2011 the Council of Europe adopted the Convention on preventing and combating violence against women and domestic violence, which entered into force on 1 August 2014. It was ratified by Portugal on 5 February 2013. The relevant parts of the Convention read as follows:", "Article 1 – Purposes of the Convention", "1. The purposes of this Convention are to:", "...", "b ) Contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women”", "Article 12 – General Obligations", "“1. Parties shall take the necessary measures to promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men.”", "C. Report of the UN Human Rights Council ’ s Special Rapporteur on the Independence of Judges and Lawyers", "28. The relevant parts of the Report by the UN Human Rights Council ’ s Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, concerning her visit to Portugal from 27 January to 3 February 2015 (United Nations Human Rights Council, document A/HRC/29/26/add4 of 29 June 2015), reads as follows :", "“72. The Special Rapporteur notes that the proper education and awareness-raising of judges and prosecutors are paramount for a better performance of judicial actors in the treatment of all victims of crimes. This is especially needed as a means to avoid the reproduction of prejudices in court rulings or the adoption of contradictory measures, for instance in relation to custody, which could facilitate the access of known aggressors to their victims. The Special Rapporteur appreciates the efforts made by the Centre for Judicial Studies in providing training that pays particular attention to human rights and vulnerable groups.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 8", "30. The applicant complained that the Supreme Administrative Court ’ s judgment in her case had discriminated against her on the grounds of her sex and age. She complained, in particular, about the reasons given by the Supreme Administrative Court for reducing the amount awarded to her in respect of non-pecuniary damage and about the fact that it had disregarded the importance of a sex life for her as a woman. She relied on Articles 8 and 14 of the Convention, which read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, religion, political or other opinion, national or social origin, association with a minority, property, birth or other status.”", "A. Admissibility", "1. Applicability of Article 14 of the Convention taken in conjunction with Article 8", "(a) The parties ’ submissions", "31. The Government contended that the concept of private life was very broad and did not lend itself to an exhaustive definition. An individual ’ s physical and moral integrity fell within the notion of “private life” and was protected by Article 8 of the Convention. In that regard, they noted that the judgment of the Supreme Administrative Court had sought, inter alia, to provide the applicant with adequate compensation for the damage caused by the surgical procedure to her physical and psychological integrity, which had had an impact on both her health and her well-being. In addition, the Government observed that the applicant had complained of discriminatory treatment on the grounds of sex and age, elements which formed part of an individual ’ s personality and therefore included the concept of private life. The Government concluded therefore that the circumstances of the case fell within the scope of Article 8.", "32. The applicant did not submit observations on the applicability of Article 8 to the facts of the case.", "(b) The Court ’ s assessment", "33. The Court must determine at the outset whether the facts of the case fall within the scope of Article 8 and hence of Article 14 of the Convention (see Konstantin Markin v. Russia [GC], no. 30078/06, § 129, ECHR 2012 (extracts) ).", "34. It reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, and to this extent it is autonomous. A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may, however, infringe that Article when read in conjunction with Article 14 for the reason that it is discriminatory in nature. Accordingly, for Article 14 to become applicable, it is enough that the facts of the case fall “within the ambit” of another substantive provision of the Convention or its Protocols (see, among many other authorities, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 53, 24 January 2017, and Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts) ).", "35. In this connection the Court has on many occasions held that the notion of “private life” within the meaning of Article 8 is a broad concept which does not lend itself to exhaustive definition. It covers the physical and psychological integrity of a person and, to a certain extent, the right to establish and develop relationships with other human beings. It can sometimes embrace aspects of an individual ’ s physical and social identity (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017 ). The concept of private life also encompasses the right to “personal development” or the right to self-determination ( ibidem ) and elements such as gender identification, sexual orientation and sex life, which fall within the personal sphere protected by Article 8 (see E.B. v. France, no. 43546/02, § 43, 22 January 2008).", "36. In the present case the domestic proceedings aimed to establish liability for medical malpractice and an adequate amount of compensation for the physical and psychological consequences of the operation. Therefore, the facts at issue fall within the scope of Article 8 of the Convention. It follows that Article 14, taken together with Article 8, is applicable.", "2. Conclusion", "37. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "38. The applicant contended that the various health conditions from which she suffered had been caused by the medical intervention of May 1995. She also argued that those specific conditions had not resulted from her previous health problems, contrary to the findings of the Supreme Administrative Court. In fact, her faecal and urinary incontinence, the difficulty in having sex and her depression had been caused exclusively by the medical error which had occurred during the operation.", "39. Moreover, the applicant pointed to the fact that the Portuguese State, through the State Attorney ’ s Office attached to the Supreme Administrative Court, had argued that the Supreme Administrative Court judgment should be made null and void and that the amount awarded in respect of non-pecuniary damage should not have been reduced.", "40. Lastly, the applicant argued that the Supreme Administrative Court had clearly discriminated against her on the grounds of her sex and age. In the applicant ’ s opinion, by expressly referring to the fact that she was fifty the Supreme Court had implied that if she had been younger and had had no children, she would most certainly have been awarded a higher amount. Moreover, the Supreme Administrative Court had made an assumption which had lacked a scientific basis. By disregarding her right to a sex life, the Supreme Administrative Court had breached one of the most basic principles of human dignity and had violated Articles 8 and 14 of the Convention. The applicant contended that the analysis of Portuguese case-law referred to above (see paragraphs 23 and 24 ) led to the conclusion that there was an obvious difference in treatment regarding compensation for men and women in situations involving their sex life. In particular, the amount awarded to men for non-pecuniary damage seemed to be manifestly higher in situations where plaintiffs had similar problems to those the applicant had suffered from following the medical intervention in question.", "41. The Government argued that the Supreme Administrative Court ’ s decision to decrease the amount awarded by the first-instance court in respect of non-pecuniary damage had not been governed by prejudice or an intention to discriminate against the applicant on the grounds of her sex or age. On the contrary, it had been based on the fact that the Supreme Administrative Court had considered that the medical intervention had not been the only cause of the physical and psychological damage which the applicant had complained of. In that regard the Government emphasised that the amount awarded by the Supreme Administrative Court had been attributable to the fact that the applicant ’ s gynaecological problem had developed a long time earlier, that she had already been treated unsuccessfully several times and that she had already been suffering unbearable pain and symptoms of depression before the operation. For the Supreme Administrative Court, therefore, the applicant ’ s complains had not been new and surgery had merely aggravated what had already been a difficult situation. Moreover, the Government pointed out that the Supreme Administrative Court had also taken into account the fact that the applicant had become very unhappy and that she had felt “diminished as a woman” in the wake of the injury she had suffered.", "42. The Government acknowledged that reading the impugned passage in the Supreme Administrative Court ’ s judgment out of context could indicate prejudice and a belittling of the applicant ’ s suffering, in particular because of her age. They further acknowledged that there had been an unfortunate use of terms. They observed, however, that the passage should be read on the understanding that the Supreme Administrative Court had also taken the above-mentioned factors into account.", "43. In addition, the Government argued that comparing cases that had come before Portuguese courts was difficult and was liable to lead to errors because the clinical conditions of the plaintiffs seeking compensation were different and, as such, the physical and psychological consequences of the damage involved also differed. They noted that several factors had to be taken into account when assessing appropriate levels of compensation for non-pecuniary damage. These included any life- threatening risks; the number of medical procedures plaintiffs had undergone; the kind of treatment ( the degree of pain) applied; whether the injuries caused by the medical error could be reversed; and the degree of loss of autonomy and subsequent dependence on others in the essential tasks of everyday life. In that regard, the applicant could not be considered as being in the same position as other plaintiffs (including the male plaintiffs referred to in the two Supreme Court of Justice judgments in paragraphs 23 and 24 above). As such, the amount awarded in respect of non-pecuniary damage had not amounted to an unjustifiable difference in treatment on account of her sex and age as it had been proportionate to the damage suffered.", "2. The Court ’ s assessment", "(a) General principles", "44. The Court has established in its case-law that in order for an issue to arise under Article 14, there must be a difference in treatment of persons in analogous or relevantly similar situations. Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised. Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see, inter alia, Biao v. Denmark [GC], no. 38590/10, § § 90 and 93, ECHR 2016, and Sousa Goucha v. Portugal, no. 70434/12, § 58, 22 March 2016). The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, ECHR 2017).", "45. Article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or personal characteristic, or “status”, by which individuals or groups are distinguishable from one another. It lists specific grounds which constitute “status” including, inter alia, sex, race and property. The words “other status” have generally been given a wide meaning, and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 61 and 70, ECHR 2010, and Clift v. the United Kingdom, no. 7205/07, § § 56-58, 13 July 2010 ). In this regard, the Court has recognised that age might constitute “other status” for the purposes of Article 14 of the Convention (see, for example, Schwizgebel v. Switzerland, no. 25762/07, § 85, ECHR 2010 (extracts) ), although it has not, to date, suggested that discrimination on grounds of age should be equated with other “suspect” grounds of discrimination ( British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 88, 15 September 2016).", "46. The Court further reiterates that the advancement of gender equality is today a major goal for the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin, cited above, § 127, with further references; see also Schuler- Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on the grounds of sex. For example, in a case concerning the bearing of a woman ’ s maiden name after marriage, it considered that the importance attached to the principle of non-discrimination prevented States from imposing traditions that derive from the man ’ s primordial role and the woman ’ s secondary role in the family (see Ünal Tekeli v. Turkey, no. 29865/96, § 63, ECHR 2004 ‑ X (extracts) ). The Court has also considered that the issue with stereotyping of a certain group in society lies in the fact that it prohibits the individualised evaluation of their capacity and needs (see, mutatis mutandis, Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, with further references).", "47. Lastly, as concerns the burden of proof in relation to Article 14 of the Convention, the Court reiterates that once the applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see Khamtokhu and Aksenchik, § 65, and Biao, § 92, both cited above).", "(b) Application of those principles to the instant case", "48. In the present case the Court observes that the first-instance court awarded the applicant EUR 80,000 in respect of non-pecuniary damage, referring to criteria such as the physical and mental suffering caused by the medical error. It considered in particular that the injury to the left pudendal nerve caused during the operation had left the applicant in pain, led to a loss of sensation in the vagina, incontinence, difficulty walking and sitting, and in having sexual relations (see paragraph 14 above).", "49. While confirming the findings of the first-instance court, the Supreme Administrative Court reduced the award to EUR 50,000. It relied on the same elements, but considered that the applicant ’ s physical and mental suffering had been aggravated by the operation, rather than caused exclusively by the injury to the left pudendal nerve during surgery. Moreover, the Supreme Administrative Court relied on the fact that the applicant “ [had been] already fifty years old at the time of the surgery and had two children, that is, an age when sexuality [was] not as important as in younger years, its significance diminishing with age ” (see paragraph 16 above).", "50. The Court notes that the Supreme Administrative Court also reduced the amount that had been awarded to the applicant in respect of the costs of a maid on the grounds that she was not likely to have needed a full - time maid (see paragraph 16 above) at the material time as, considering the age of her children, she “probably only needed to take care of her husband”.", "51. In the present case the Court ’ s task is not to analyse the actual amounts awarded to the applicant by the Supreme Administrative Court. In that connection the Court reiterates that as a general rule it is for the national courts to assess the evidence before them, including the means used to ascertain the relevant facts (see Sahin v. Germany [GC], no. 30943/96, § 73, ECHR 2003 ‑ VIII, and Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235 ‑ B). The national authorities are thus, in principle, better placed than an international court to evaluate what is adequate compensation for the specific damage suffered by an individual. The issue which has to be determined, however, is whether or not the Supreme Administrative Court ’ s reasoning led to a difference of treatment of the applicant based on her sex and age, amounting to a breach of Article 14 in conjunction with Article 8.", "52. The Court acknowledges that in deciding claims related to non-pecuniary damage within the framework of liability proceedings, domestic courts may be called upon to consider the age of claimants, as in the instant case. The question at issue here is not considerations of age or sex as such, but rather the assumption that sexuality is not as important for a fifty - year - old woman and mother of two children as for someone of a younger age. That assumption reflects a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self -fulfilment of women as people. Apart from being, in a way, judgmental, it omitted to take into consideration other dimensions of women ’ s sexuality in the specific case of the applicant. In other words, in the instant case the Supreme Administrative Court made a general assumption without attempting to look at its validity in the specific case of the applicant herself, who was fifty at the time of the operation at issue ( see, mutatis mutandis, Schuler- Zgraggen, cited above, § 67).", "53. In the Court ’ s view, the wording of the Supreme Administrative Court ’ s judgment when reducing the amount of compensation in respect of non-pecuniary damage cannot be regarded as an unfortunate turn of phrase, as asserted by the Government. It is true that in lowering the amount the Supreme Administrative Court also took it for granted that the pain suffered by the applicant was not new. Nevertheless, the applicant ’ s age and sex appear to have been decisive factors in the final decision, introducing a difference of treatment based on those grounds (see, mutatis mutandis, Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 35, ECHR 1999 ‑ IX; Schuler- Zgraggen, cited above, § 67; and, conversely, Sousa Goucha, cited above, §§ 64-65). This approach is also reflected in the decision of the Supreme Administrative Court [2] to lower the amount awarded to the applicant in respect of the costs of a maid on the grounds that she “probably only needed to take care of her husband” given her children ’ s age at the material time (see paragraph 16 above).", "54. In the Court ’ s view, those considerations show the prejudices prevailing amongst the judiciary in Portugal, as pointed out in the report of 29 June 2015 by the UN Human Rights Council ’ s Special Rapporteur on the Independence of Judges and Lawyers (see paragraph 28 above) and in the CEDAW ’ s Concluding Observations on the need for the respondent State to address the problem of gender -based discriminatory stereotypes (see paragraph 26 above). They also confirm the observations and concerns expressed by the Permanent Observatory on Portuguese Justice regarding the prevailing sexism within judicial institutions in its report of November 2006 on domestic violence (see paragraph 29 above).", "55. In this well - established factual context, the Court cannot but note the contrast between the applicant ’ s case and the approach taken in two judgments of 2008 and 2014, which concerned allegations of medical malpractice by two male patients who were fifty-five and fifty-nine years old respectively. The Supreme Court of Justice found in those cases that the fact that the men could no longer have normal sexual relations had affected their self-esteem and resulted in a “tremendous blow ” and “ severe mental trauma ” (see paragraphs 23 and 24 above). In view of its findings, the Supreme Court of Justice awarded EUR 224,459 and EUR 100,000 to the two male plaintiffs respectively. It follows from those cases that the domestic courts took into consideration the fact that the men could not have sexual relations and how that had affected them, regardless of their age. Contrary to the applicant ’ s case, the Supreme Court of Justice did not take account of whether the plaintiffs already had children or not, or look at any other factors. In particular, in the judgment of 4 March 2008, it found that the fact that the impugned surgical procedure had left the plaintiff impotent and incontinent was enough to consider that non-pecuniary damage had been caused.", "56. In view of the foregoing considerations, the Court concludes that there has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "57. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "58. The applicant claimed 174,459.05 euros (EUR) in respect of non-pecuniary damage. She did not claim an amount in respect of pecuniary damage.", "59. The Government considered the applicant ’ s claim excessive.", "60. The Court considers that the applicant must have suffered distress and frustration as a result of the violation found. Making its assessment on an equitable basis, the Court awards the applicant EUR 3, 25 0 for non-pecuniary damage, plus any tax that may be chargeable on the above amount.", "B. Costs and expenses", "61. The applicant also claimed EUR 2,460 for the costs and expenses incurred before the Court.", "62. The Government, referring to Antunes and Pires v. Portugal (no. 7623/04, § 43, 21 June 2007), left the matter to the Court ’ s discretion.", "63. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full.", "C. Default interest", "64. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants, who are Swiss nationals, have both lived in Basle since 1975. They were married in Germany in 1984 and Mrs Burghartz has German citizenship also. In accordance with German law (Article 1355 of the Civil Code), they chose the wife ’ s surname, \"Burghartz\", as their family name; the husband availed himself of his right to put his own surname in front of that and thus call himself \"Schnyder Burghartz\".", "7. The Swiss registry office (Zivilstandsamt) having recorded \"Schnyder\" as their joint surname, the couple applied to substitute \"Burghartz\" as the family surname and \"Schnyder Burghartz\" as the husband ’ s surname. On 6 November 1984 the cantonal government (Regierungsrat) of Basle Rural turned down the application.", "8. On 26 October 1988 the applicants made a further application to the cantonal Department of Justice (Justizdepartement) of Basle Urban, following an amendment to the Civil Code as regards the effects of marriage, which had been made on 5 October 1984 and had come into force on 1 January 1988 (see paragraph 12 below).", "On 12 December 1988 their application was again refused, on the ground that they had not pointed to any serious inconvenience arising from the use of the surname \"Schnyder\". Furthermore, in the absence of any transitional provisions the new Article 30 para. 2 of the Civil Code could not apply to couples married before 1 January 1988. Lastly, under the new Article 160 para. 2, only a wife could put her own surname before the family name (see paragraph 12 below).", "9. The applicants then lodged an appeal (Berufung) with the Federal Court (Bundesgericht) in which they complained of, among other things, a breach of the new Articles 30 and 160 para. 2 of the Civil Code and Article 4 para. 2 of the Federal Constitution (see paragraphs 11 and 12 below).", "On 8 June 1989 the Federal Court allowed the appeal in part. While refusing to apply paragraph 2 of Article 30, which concerned only engaged couples and had no retrospective effect, it held that in the particular case there were important factors which justified applying paragraph 1 in order to allow the applicants to call themselves \"Burghartz\"; apart from the couple ’ s age and profession, account had to be taken of the differences between the relevant Swiss and German systems, which were made more acute by the fact that Basle was a frontier city.", "As to Mr Burghartz ’ s application to be allowed to bear the name \"Schnyder Burghartz\", no support for it could be found in Article 160 para. 2 of the Civil Code; the drafting history showed that the Swiss Parliament, out of a concern to preserve family unity and avoid a break with tradition, had never agreed to introduce absolute equality between spouses in the choice of name and had thus deliberately restricted to wives the right to add their own surnames to their husbands ’. This rule therefore could not avail by analogy a husband in a family known by the wife ’ s surname. There was, however, nothing to prevent Mr Burghartz from using a double-barrelled name (see paragraph 13 below) or even, informally, putting his surname before his wife ’ s.", "10. According to the applicant, a large number of official documents, in particular the certificate of his doctorate in history, had not since then contained the \"Schnyder\" element of his surname." ]

[ "II. RELEVANT DOMESTIC LAW", "11. Article 4 para. 2 of the Swiss Federal Constitution provides:", "\"Men and women shall have equal rights. Equality shall be provided for by law, in particular in relation to the family, education and work ...\"", "12. The relevant new Civil Code provisions that came into force on 1 January 1988 read as follows:", "Article 30", "\"(1) The government of the canton of residence may, if there is good cause, authorise a person to change his or her name.", "(2) Engaged couples shall be authorised, if they so request and if they prove a legitimate interest, to bear the wife ’ s surname as the family name once the marriage has been solemnised.", "...\"", "Article 160", "\"(1) Married couples shall take the husband ’ s surname as their family name.", "(2) A bride may, however, make a declaration to the registrar that she wishes to keep the surname she has borne to date, followed by the family name.", "...\"", "Article 270", "\"(1) The children of married couples shall bear their family name.", "...\"", "Article 8a of the final section", "\"Within one year of the entry into force of the new Act, a woman who was married under the old law may make a declaration to the registrar that she wishes to put the surname she bore before her marriage in front of the family name.\"", "13. By a custom recognised in case-law, married couples may also put the wife ’ s surname after the husband ’ s surname, joining the two with a hyphen. This double-barrelled name (Allianzname), however, is not regarded as the legal family name (Federal Court, judgment of 29 May 1984, Judgments of the Swiss Federal Court, vol. 110 II 99).", "PROCEEDINGS BEFORE THE COMMISSION", "14. Mr and Mrs Burghartz applied to the Commission on 26 January 1990, relying on Articles 8 and 14 (art. 8, art. 14) of the Convention.", "15. The Commission declared the application (no. 16213/90) admissible on 19 February 1992. In its report of 21 October 1992 (made under Article 31) (art. 31), it expressed the opinion by eighteen votes to one that there had been a breach of Article 14 taken together with Article 8 (art. 14+8), and by thirteen votes to six that there was no need to examine the case under Article 8 (art. 8) taken alone. The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [*].", "AS TO THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "A. Whether or not the first applicant is a victim", "16. As before the Commission, the Government contested in the first place that Mrs Burghartz was a victim within the meaning of Article 25 (art. 25) of the Convention. No one but Mr Burghartz had been aggrieved by the refusal of his request, the only one in issue in the case as his wife had obtained satisfaction from the Federal Court, which had allowed her to keep her maiden name (see paragraph 9 above).", "17. The applicants pointed to Mrs Burghartz ’ s personal interest in the success of her husband ’ s action. Since, together with him, she had chosen \"Burghartz\" as their joint family name, she considered herself directly responsible for her husband ’ s loss of his surname \"Schnyder\", and their married life might suffer from this. The Commission too thought that the question concerned both spouses.", "18. The Court points out that the case originated in a joint application by Mr and Mrs Burghartz to change their joint family name and the husband ’ s surname simultaneously. Having regard to the concept of family which prevails in the Convention system (see, among other authorities and mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, pp. 14-15, para. 31, and the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234-A, p. 28, para. 76), it considers that Mrs Burghartz may claim to be a victim of the impugned decisions, at least indirectly.", "The objection must therefore be dismissed.", "B. Exhaustion of domestic remedies", "19. The Government, who had already raised the issue before the Commission, submitted that the applicants had not exhausted domestic remedies as they had neither relied on Articles 8 and 14 (art. 8, art. 14) of the Convention in their appeal (Berufung - see paragraph 9 above) nor also lodged a public-law appeal.", "20. The Court observes that the Federal Court is required by Article 113 para. 3 of the Swiss Constitution to apply the laws passed by the Federal Assembly. It is expressly forbidden to suspend the effects of any such laws which might prove to be incompatible with the Constitution. This prohibition seems to have been extended by current case-law to cases in which there is a conflict between such a law and a treaty. That being so, the applicants cannot be blamed for having founded their appeal solely on domestic law - Articles 30 and 160 of the Civil Code, 8a of the final section of that code and 4 para. 2 of the Constitution - seeing that their arguments were identical in substance with those they submitted to the Commission. As to a public-law appeal, its subsidiary nature prevents it from being considered in this instance an adequate remedy which Article 26 (art. 26) of the Convention would also have required the applicants to exhaust. Accordingly, this objection likewise must be dismissed.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8)", "21. The applicants relied on Article 8 (art. 8), taken alone and together with Article 14 (art. 14+8).", "Article 8 (art. 8) provides:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "Article 14 (art. 14) provides:", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "Given the nature of the complaints, the Court, like the Commission, deems it appropriate to examine the case directly under Article 14 taken together with Article 8 (art. 14+8).", "A. Applicability", "22. The Government argued that these two provisions were not applicable. Since the entry into force of Protocol No. 7 (P7) on 1 November 1988, the equality of spouses in the choice of surname had been governed exclusively by Article 5 of that Protocol (P7-5), covering equality of rights and responsibilities of a private-law character between spouses, as a lex specialis. When ratifying that Protocol (P7), Switzerland had made a reservation providing, inter alia, that \"[f]ollowing the entry into force of the revised provisions of the Swiss Civil Code of 5 October 1984, the provisions of Article 5 of Protocol No. 7 (P7-5) shall apply subject to ... the provisions of Federal Law concerning the family name (Articles 160 CC and 8a final section CC) ...\". Examining the case under Articles 14 and 8 taken (art. 14+8) together would thus be tantamount to ignoring a reservation that satisfied the requirements of Article 64 (art. 64) of the Convention.", "23. The Court points out that under Article 7 of Protocol No. 7 (P7-7), Article 5 (P7-5) is to be regarded as an addition to the Convention, including Articles 8 and 60 (art. 8, art. 60). Consequently, it cannot replace Article 8 (art. 8) or reduce its scope (see, mutatis mutandis, the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, pp. 12-13, para. 26).", "It must nevertheless be determined whether Article 8 (art. 8) applies in the circumstances of the case.", "24. Unlike some other international instruments, such as the International Covenant on Civil and Political Rights (Article 24 para. 2), the Convention on the Rights of the Child of 20 November 1989 (Articles 7 and 8) or the American Convention on Human Rights (Article 18), Article 8 (art. 8) of the Convention does not contain any explicit provisions on names. As a means of personal identification and of linking to a family, a person ’ s name none the less concerns his or her private and family life. The fact that society and the State have an interest in regulating the use of names does not exclude this, since these public-law aspects are compatible with private life conceived of as including, to a certain degree, the right to establish and develop relationships with other human beings, in professional or business contexts as in others (see, mutatis mutandis, the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 33, para. 29).", "In the instant case, the applicant ’ s retention of the surname by which, according to him, he has become known in academic circles may significantly affect his career. Article 8 (art. 8) therefore applies.", "B. Compliance", "25. Mr and Mrs Burghartz complained that the authorities had withheld from Mr Burghartz the right to put his own surname before their family name although Swiss law afforded that possibility to married women who had chosen their husbands ’ surname as their family name. They said that this resulted in discrimination on the ground of sex, contrary to Articles 14 and 8 (art. 14+8) taken together.", "The Commission shared this view in substance.", "26. The Government recognised that what was at issue was a difference of treatment on the ground of sex but argued that it was prompted by objective and reasonable considerations which prevented it from being in any way discriminatory.", "By providing that, as a general rule, families should take the husband ’ s surname (Article 160 para. 1 of the Civil Code), the Swiss legislature had deliberately opted for a traditional arrangement whereby family unity was reflected in a joint name. It was only in order to mitigate the rigour of the principle that it had also provided for a married woman ’ s right to put her own surname in front of her husband ’ s (Article 160 para. 2 of the Civil Code). On the other hand, the reverse was not justified to the advantage of a married man who, like Mr Burghartz, deliberately and in full knowledge of the consequences, invoked Article 30 para. 1 of the Civil Code to change his surname to that of his wife. It was all the more unjustified as there was nothing to prevent a husband, even in those circumstances, from using his surname as part of a double-barrelled name or in any other way informally.", "27. The Court reiterates that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe; this means that very weighty reasons would have to be put forward before a difference of treatment on the sole ground of sex could be regarded as compatible with the Convention (see, as the most recent authority, the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21-22, para. 67).", "28. In support of the system complained of, the Government relied, firstly, on the Swiss legislature ’ s concern that family unity should be reflected in a single joint surname. The Court is not persuaded by this argument, since family unity would be no less reflected if the husband added his own surname to his wife ’ s, adopted as the joint family name, than it is by the converse arrangement allowed by the Civil Code.", "In the second place, it cannot be said that a genuine tradition is at issue here. Married women have enjoyed the right from which the applicant seeks to benefit only since 1984. In any event, the Convention must be interpreted in the light of present-day conditions, especially the importance of the principle of non-discrimination.", "Nor is there any distinction to be derived from the spouses ’ choice of one of their surnames as the family name in preference to the other. Contrary to what the Government contended, it cannot be said to represent greater deliberateness on the part of the husband than on the part of the wife. It is therefore unjustified to provide for different consequences in each case.", "As to the other types of surname, such as a double-barrelled name or any other informal manner of use, the Federal Court itself distinguished them from the legal family name, which is the only one that may appear in a person ’ s official papers. They therefore cannot be regarded as equivalent to it.", "29. In sum, the difference of treatment complained of lacks an objective and reasonable justification and accordingly contravenes Article 14 taken together with Article 8 (art. 14+8).", "30. Having regard to this conclusion, the Court, like the Commission, deems it unnecessary to determine whether there has also been a breach of Article 8 (art. 8) taken alone.", "III. APPLICATION OF ARTICLE 50 (art. 50)", "31. Under Article 50 (art. 50),", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "32. The applicants claimed only the costs of legal representation before the national authorities and the Strasbourg institutions in the sum of 31,000 Swiss francs (CHF).", "The Government found this amount exorbitant and suggested reducing it to CHF 10,000. The Delegate of the Commission also regarded it as inflated.", "33. The Court has considered the matter in the light of observations by those appearing before it and of the criteria laid down in its case-law. Making its assessment on an equitable basis, it awards the applicants CHF 20,000 for costs and expenses." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The facts of the case, as submitted by the parties, may be summarised as follows.", "8. The applicant was born in 1977 in Uznach and lives in Rapperswil ‑ Jona, in the Canton of St Gallen.", "9. After originally training to be a hairdresser the applicant took up full ‑ time work as a shop assistant. In June 2002 she was forced to stop work owing to back trouble.", "10. On 24 October 2003 the applicant applied to the Disability Insurance Office of the Canton of St Gallen (“the Office”) for a disability benefit on account of her lower back and spinal pain.", "11. On 6 February 2004 she gave birth to twins. Her back pain had worsened further during the pregnancy.", "12. On 15 March 2005 the Office carried out a household assessment ( Abklärung im Haushalt ) at the applicant ’ s home, during which the applicant stated", "(i) that she suffered from constant back pain which often extended down to her left foot; that she had particular difficulty standing in the same place for any length of time and could not remain seated for more than ten minutes; that she could walk for half an hour, but not on a daily basis; and that the pain became worse when she was carrying the children;", "(ii) that she would have to work half - time for financial reasons since her husband ’ s net salary was just 3,700 Swiss francs (CHF) (approximately 3,602 euros (EUR) ).", "The report on the assessment concluded that the applicant ’ s capacity to perform household tasks was reduced by 44.6%.", "In its report dated 2 May 2005 the Office found that the applicant should be classified", "(i) as a person in full-time paid employment ( Vollerwerbstätige ) up to the end of 2003;", "(ii) as a housewife ( Hausfrau ) between January and May 2004;", "(iii) as a person theoretically capable of working 50% ( zu 50 % hypothetisch Erwerbstätige ) as of June 2004.", "13. On 16 June 2005 Dr Ch.A.S. informed the Office that the applicant was unable to work more than half - time in a suitable occupation and that any increase in her working hours appeared to be ruled out.", "14. In a decision of 26 May 2006 the Office found that the applicant should be granted a benefit for the period from 1 June 2003 to 31 August 2004, but did not qualify for any benefit from 1 September 2004 onwards.", "The Office arrived at this result by the following means.", "With regard to the period from 20 June 2002 until the end of May 2004, it assessed the applicant ’ s degree of disability at 50% on the basis of a calculation of her income.", "As to the subsequent period, the Office considered that the so ‑ called combined method should be applied, taking the view that even if she had not had a disability the applicant would have reduced her working hours following the birth of her children. It based that finding, in particular, on the applicant ’ s assertion that she felt able to work only half - time and wished to devote the remainder of her time to her household tasks and her children. Furthermore, on the basis of the household assessment referred to above, the Office estimated the applicant ’ s capacity to perform household tasks at 56% (that is to say, her degree of disability at 44%). When the formula set out below was applied, the degree of disability obtained on the basis of these various factors was only 22%, meaning that the applicant did not reach the minimum 40% degree of disability needed to trigger entitlement to a benefit :", "50 % ( paid employment ) : no loss of earnings 0. 5 x 0 % = 0 %", "50 % ( household tasks and childcare) : 0. 5 x 44 % = 22 %", "Total [1] = 22 %", "15. The applicant lodged a complaint with the Office, which was dismissed on 14 July 2006. Following a fresh calculation the Office recognised the applicant as having a 27% disability, still below the minimum required in order to qualify for a benefit.", "This figure was obtained by applying the combined method, using the following parameters:", "50 % ( paid employment ) : 0. 5 x 10 % = 5 %", "50 % ( household tasks and childcare): 0. 5 x 44 % = 22 %", "Total [2] = 27 %", "In completing the first line of the formula, the Office took as a basis a hypothetical income (for full-time work) of CHF 48,585 (approximately EUR 47,308), calculated on the basis of the statistical data for the socio ‑ professional category to which the applicant, as an auxiliary worker ( Hilfsarbeiterin ), belonged. Working at a rate of 50%, the applicant would therefore have had a salary of CHF 24,293 if she had been able to continue working without any difficulty ( Valideneinkommen ). The Office estimated that, given her disability, the salary which the applicant would actually be able to earn in a suitable occupation would be CHF 21,863 ( Invalideneinkommen ). It therefore assessed the applicant ’ s degree of disability in respect of the “ paid employment ” component at 10%.", "16. On 14 September 2006 the applicant appealed against that decision.", "Relying on Article 14 of the Convention, read in conjunction with Article 8, the applicant argued that", "(i) the method applied discriminated against the less well-off, as those persons who could afford not to do paid work were classified simply as housewives and could therefore be recognised as having a higher degree of disability and thus qualify more easily for a benefit;", "(ii) the way in which the degree of disability was calculated did not take sufficient account of the interplay ( Wechselwirkungen ) between the “household” and “ paid employment ” components;", "(iii) in reality, even if she only worked half-time, her degree of disability for the purposes of performing household tasks would increase well beyond 44% as a result.", "17. In support of her appeal the applicant submitted a medical report issued by Dr Ch.A.S. on 28 September 2006, in which the latter stated in substance that, in view of her state of health, the applicant could not engage in paid work on a half-time basis in the same way as someone without a disability, and that if she had to take up paid employment, her capacity to take care of the household and of her children would drop to around 10%.", "18. In a judgment of 30 November 2007 the Insurance Court of the Canton of St Gallen allowed the applicant ’ s appeal in part.", "In a departure from the case-law of the Federal Court ..., it considered that the usual application of the combined method should be disregarded in favour of an “improved” version. In the court ’ s view, the basis for calculation should be the level of activity which the applicant might reasonably have resumed after the birth of her twins if she had not had health problems.", "The Insurance Court found that the “household” component of the combined method, as that method was applied in the Federal Court ’ s case ‑ law, did not take sufficient account of the person ’ s disability.", "According to the court, the Office had not taken into consideration the fact that the applicant could only take care of the household on a half-time basis, and had incorrectly calculated her incapacity for work on the basis of a twelve-hour working day.", "Instead of taking as a basis the household assessment – which, in the Insurance Court ’ s view, should be applicable only to individuals who were engaged full-time in caring for the household – the Office should have examined the applicant ’ s actual capacity to perform household tasks, which had been established by a doctor.", "The court also criticised the Office for not examining whether, if she had been in good health, the applicant would have been able to engage in paid work after the birth of her children. In particular, it noted that the report drawn up following the household assessment gave scant information as to the work entailed for the applicant in caring for her children ( Betreuungsaufwand ) and whether or not any possibilities existed for entrusting part of their care to other persons. As these factors had not been taken into consideration by the Office, the applicant ’ s degree of disability had been established on the basis of an incomplete set of facts. The court also considered it unlikely that the applicant would have worked only half ‑ time if she had been in good health, given her husband ’ s modest salary and what she could reasonably expect to earn as a hairdresser or auxiliary worker. The household assessment therefore appeared to be deficient in that respect also.", "Consequently, the Insurance Court remitted the case to the Office for further investigation.", "19. The Office lodged an appeal against the Insurance Court judgment.", "20. In a judgment of 28 July 2008 (9C_49/2008) the Federal Court allowed the Office ’ s appeal, finding that the applicant was not eligible for a benefit.", "In its reasoning the Federal Court began by describing the context in which it viewed the case, stating that", "(i) the aim of disability insurance was to provide cover for insured persons against the risk of becoming unable, for medical reasons, to carry on a paid occupation or perform household tasks which they had actually been able to carry out before becoming disabled and would still be able to perform if the event triggering the disability had not occurred;", "(ii) the aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health;", "(iii) this approach was designed to prevent situations in which, for instance, individuals who were well-off and had never previously worked could be recognised as having a disability if they developed health problems, even though they would probably never have worked had they remained in good health.", "21. Accordingly, the Federal Court considered that the combined method was not discriminatory. It found as follows:", "“ 3.4 ... It is true that the combined method, as applied by the [Federal] Court in its settled case-law, may result in a loss of benefit where the insured person is more than likely – generally on account of the birth of a child – to cease paid employment, at least on a full-time basis. However, it is not the disability that [then] causes the loss of income; many people in good health also suffer a loss of income when they reduce their hours or stop working. The criticism of the combined method is directed at the fact that individuals (mostly women) suffer a drop in earnings when they reduce their working hours after having children. Nevertheless, this sociological reality is not the result of factors linked to the person ’ s health and should not therefore be covered by the disability insurance scheme. It does not give rise to any discrimination or other breach of the European Convention on Human Rights.”", "Nevertheless, the Federal Court conceded that the interplay between the “household” and “ paid employment ” aspects was not taken sufficiently into account in the combined method. With regard to the applicant, however, it found", "(i) that the aggravation of her health problems as a result of her paid work should not be regarded as reducing her capacity to perform household tasks by more than 15%;", "(ii) that, accordingly, even taking the interplay in question into account, the applicant ’ s degree of disability did not reach the 40% minimum required in order to qualify for a benefit :", "50 % ( paid employment ) : 0. 5 x 10 % = 5 %", "50 % ( household tasks ) : 0. 5 x (44 + 15 %) = 29. 5 %", "Total [3] = 34. 5 %", "The argument that her husband was unemployed, which was raised by the applicant for the first time before the Federal Court, was rejected on the grounds that it had not been relied upon in the court below and was not substantiated.", "However, the Federal Court granted the applicant legal aid in view of her lack of means.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "48. The applicant alleged that she had been discriminated against, arguing that the combined method of calculating the degree of disability had resulted in her being refused a disability benefit because of her part-time work. In her submission, the method was based on the very traditional notion that only one partner in a couple – most often, the man – carried on a paid occupation, while the other partner was engaged full - time in taking care of the household and children ( Aufgabentrennung ). Where, on the other hand, a couple decided to share roles ( Aufgabenteilung ), a more modern approach in her view, they ran the risk of losing entitlement to a benefit in the event of a disability.", "For the above reasons, the applicant alleged a violation of Article 14 of the Convention taken in conjunction with Article 8. The provisions in question read as follows:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "49. The applicant contended that she was placed at a disadvantage, first of all, compared with individuals who did not perform any paid work. In a case like hers, such persons would be considered to have a 44% disability and would therefore be entitled to a benefit (the minimum degree of disability was 40%).", "She was also discriminated against compared with individuals who did not have to take care of a household or children and who could therefore work full - time. In a situation identical to hers, such persons would be deemed to have a 55% disability.", "As the combined method did not apply to these two categories of persons, they would be entitled to a disability benefit.", "In the applicant ’ s view, this legal situation discriminated against her on two counts:", "(i) firstly, on the grounds of her disability, as the combined method was apt to discourage persons with a disability from making any effort to join the workforce by taking up part-time work, given that this would place them at risk of losing their benefit;", "(ii) secondly, on the grounds of her gender, as the legal arrangements in force, in the vast majority of cases, affected women after childbirth.", "50. The Government contested the applicant ’ s arguments.", "...", "B. Merits", "1. Applicability of Article 14 of the Convention taken in conjunction with Article 8", "( a) Whether the facts of the case fall within the ambit of Article 8", "( i ) The parties ’ submissions", "( α ) The Government", "52. The Government submitted that the right to respect for family life did not give rise in principle to direct entitlement to positive benefits from the State aimed at facilitating family life. The rights guaranteed by the Convention did not encompass an obligation for the Contracting Parties to provide certain financial benefits or ensure a certain standard of living.", "53. In cases where it had been called upon to examine a refusal to grant an applicant a particular social insurance benefit, the Court had based its findings on Protocol No. 1 to the Convention, which had not been ratified by Switzerland.", "The Government inferred from this that Article 14 of the Convention, taken in conjunction with Article 8, was not applicable in the present case. In their submission, the complaints alleging a violation of that provision should therefore be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention.", "54. The Government argued that the disability benefit was not aimed at enabling the family of the disabled person to allocate tasks in a particular way, either before or after the disability had occurred (for instance, in order to allow the spouse of the insured person to work part - time).", "In the context of application of the combined method, the insured person had to make a choice, before the benefit was calculated, as to how the distribution of tasks would be organised if he or she were in good health. Considerations relating to the law on disability insurance, such as the method used to assess disability or the prospect of obtaining a benefit, should not enter into the equation.", "Likewise, the question of the disability benefit did not influence the decision whether and to what extent the insured person, as a person with a disability, used his or her remaining work capacity in the context of the hypothetical division of tasks based on the assumption that he or she was in good health.", "Accordingly, the Government argued that the disability benefit in no way affected the allocation of tasks within the family of the disabled person.", "( β ) The applicant", "55. In the applicant ’ s view, the present case fell within the scope of Article 8. While it was true that entitlement to a disability benefit existed irrespective of whether a family within the meaning of Article 8 was involved, as observed by the Government, the discrimination of which she complained affected precisely those insured persons who had decided to work only part - time because of their household or parental responsibilities.", "In the case of other insured persons – those, for instance, who did not work full - time because they wished to pursue a hobby – the Federal Court was less incisive in applying the combined method of calculating the degree of disability. This meant that it was easier for persons who worked part - time to obtain a benefit if they devoted their free time to leisure activities rather than to household tasks. Hence, the combined method only penalised families. The negative impact of the combined method was even greater when the disabled person was a single parent who could not rely on a spouse ’ s financial contribution.", "56. In view of the foregoing, the applicant argued that the case did indeed concern the implications of the method used to determine whether a benefit was granted, and its implications for the family. Contrary to the Government ’ s assertion, the way in which tasks were allocated had a direct impact on the granting or refusal of a disability benefit.", "57. Hence, in the applicant ’ s submission, Article 14 taken in conjunction with Article 8 was applicable in the present case.", "( ii ) The Court ’ s assessment", "58. As regards protection against discrimination, the Court reiterates that Article 14 only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence because it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention or its Protocols ( see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts) ).", "59. The Court further reiterates that the Convention does not guarantee, as such, the right to an old-age pension or any social benefit of a particular amount ( see Yuriy Romanov v. Russia, no. 69341/01, § 45, 25 October 2005). Furthermore, the Convention does not confer on an individual a right to enjoy any given standard of living ( see Vassilenkov v. Ukraine, no. 19872/02, § 18, 3 May 2005).", "60. As regards the “family life” aspect of Article 8, the Court observes at the outset that this notion does not include only social, moral or cultural relations; it also comprises interests of a material kind ( see Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004).", "61. The Court also reiterates that measures which enable one of the parents to stay at home to look after the children promote family life and necessarily affect the way in which it is organised. Such measures therefore come within the scope of Article 8 of the Convention ( see, in particular, Petrovic v. Austria, 27 March 1998, § 27, Reports of Judgments and Decisions 1998 ‑ II, and Konstantin Markin v. Russia [GC], no. 30078/06, § 130, ECHR 2012 (extracts); see also, to similar effect, Weller v. Hungary, no. 4 4 399/05, § 29, 31 March 2009, and Dhahbi v. Italy, no. 17120/09, § 41, 8 April 2014).", "62. The present case also concerns issues linked to the organisation of family life, albeit in a different way. The available statistics show that in the great majority of cases the legal arrangements in place – the combined method – concern women who wish to work part-time after having children. In its judgment of 28 July 2008 concerning the applicant (see paragraph 20 above), the Federal Court acknowledged that the combined method could sometimes result in the loss of the benefit, particularly in the case of women who worked part - time following the birth of their children. The Court considers that the application of the combined method in the applicant ’ s case was apt to influence her and her husband in deciding how to divide up tasks within the family and, accordingly, to have an impact on the organisation of their family and professional life. In its leading judgment ... the Federal Court also explicitly acknowledged that the combined method could have negative repercussions for someone who worked part ‑ time for family reasons, if he or she became disabled. These considerations are sufficient for the Court to find that the present complaint falls within the ambit of the “family life ” aspect of Article 8.", "63. As regards the “ private life ” aspect of Article 8, the Court has had previous occasion to remark that the concept of “private life” is a broad term not susceptible to exhaustive definition. It can sometimes embrace aspects of an individual ’ s physical and social identity ( see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). It also covers the right to personal development and to establish and develop relationships with other human beings and the outside world ( see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I). Lastly, the Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 ( see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011).", "64. The present case also concerns the “private life” aspect of Article 8 in so far as that provision guarantees the right to personal development and personal autonomy. To the extent that the combined method places individuals wishing to work part - time at a disadvantage compared with those in full-time paid work and those who do not work at all, it cannot be ruled out that this method of calculating disability will limit persons falling into the first of these categories in their choice as to how to divide their private life between work, household tasks and childcare.", "65. In view of the foregoing, this complaint falls within the ambit of Article 8.", "( b) Nature of the alleged discrimination", "66. It is clear from these observations, and in particular from the statistical data furnished by the parties, that in the overwhelming majority of cases the combined method concerns women who wish to reduce the amount of time they spend in paid work following the birth of a child or children. Accordingly, the Court considers that the applicant is entitled to claim that she has been the victim of discrimination on the grounds of sex within the meaning of Article 14 of the Convention.", "67. This finding makes it unnecessary for the Court to examine whether the refusal to grant the applicant a disability benefit also amounts in the present case to discrimination on grounds of her disability.", "( c) Conclusion", "68. It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case.", "2. Compliance with Article 14 taken in conjunction with Article 8 of the Convention", "( a ) The parties ’ submissions", "( i ) The applicant", "69. The applicant conceded the Government ’ s point that, in theory, the combined method applied without distinction to men and women. However, the Government appeared to overlook the issue of indirect discrimination. It was true that the combined method had the same consequences irrespective of whether the man or the woman engaged in part-time paid work and carried out household tasks. However, its effects were felt disproportionately by women, given that they were the ones concerned in the great majority of cases, as confirmed by the Government ’ s statistics.", "70. In the applicant ’ s view, the Government had not addressed the question of the existence of an objective and reasonable justification for the situation complained of, but instead had merely presented detailed documents showing the different methods used to calculate the restriction of an individual ’ s capacity caused by his or her health problems. The subject ‑ matter of the application did not concern the fact that the restrictions caused by the person ’ s health problems were measured differently according to whether he or she was engaged in paid work or in household tasks, but rather the discrimination suffered by persons engaged in both types of activities simultaneously, resulting from the means of calculation on which the combined method was based.", "71. The applicant sought to demonstrate that her criticisms did not relate to the idea of a combined method of assessment as such, stressing that such a method could also be implemented in a non-discriminatory way. This was borne out in particular by the case-law prior to the Federal Court judgment of 26 April 1999 (ATF 125 V 146 ... ). Before that judgment, the fact of working part ‑ time was entered into the calculation only once (during the weighting of the person ’ s activities between the paid part and the household part) rather than twice (as was currently the case, since it was already taken into account in comparing the person ’ s income with and without a disability). Under the earlier procedure, insured persons were free to assign tasks within the family as they saw fit, without running the risk of forfeiting any disability benefits if they became disabled. The hardening of the case-law operated to the detriment of part-time employees – hence, mostly women – who developed health problems, even though the disability insurance legislation had not changed.", "72. In the applicant ’ s submission, the application of the combined method by the Federal Court could not be justified by considerations of feasibility or other economic considerations. The applicant referred in that regard to the findings of the St Gallen Cantonal Court, according to which the introduction of the combined method as applied under the earlier case ‑ law had resulted in an overspend of thirty-five million Swiss francs. While saving such an amount should be regarded as a legitimate aim, that aim should on no account be pursued to the principal detriment of women.", "73. The applicant also submitted that stopping a benefit for the sole reason that the insured person had given birth to a child had already been found by the Court to be discriminatory ( she referred to the judgment in Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263).", "( ii ) The Government", "74. The Government submitted that the method of assessing disability applied by the Federal Court in the instant case, which was based on a hypothetical level of activity, was justified by the aim of disability insurance, which was to insure individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they had actually been able to carry out before becoming disabled and which they would still be able to perform if they were in good health. The aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health.", "75. In its judgment of 28 July 2008 the Federal Court had acknowledged that the combined method could result in the loss of the benefit if the insured person had decided when he or she was still in good health – often in connection with the birth of a child – no longer to carry on a full-time paid occupation (in order to work part - time or to stop paid work altogether). However, the loss of income was not always attributable to the disability; persons in good health also suffered a drop in income if they reduced their working hours or gave up paid work following the birth of a child.", "76. The Government noted that the criticism of the Federal Court ’ s case ‑ law concerning the combined method centred mainly on the fact that individuals who reduced their working hours following the birth of a child suffered a drop in income, and that they were mostly women.", "Nevertheless, this societal phenomenon did not result from health-related factors. Accordingly, it should not be covered by the disability insurance scheme.", "77. The Federal Court had also ruled in the past that the method of assessment chosen was not based on the gender of the insured person or on any of the other characteristics enumerated by Article 14 of the Convention, but on the loss, as a result of disability, of the capacity to carry on an occupation and/or perform routine tasks.", "78. The Government further maintained that the possibility of altering the method of assessing disability for insured persons who worked part - time had been discussed regularly at the political level, but that the idea had been abandoned. This showed that, despite the various political efforts, no sustainable alternative to the combined method of assessing disability had been found.", "79. The Government therefore contended that Switzerland had not been in breach of Article 14.", "( b ) The Court ’ s assessment", "( i ) Summary of the relevant principles", "( α ) Indirect discrimination", "80. According to the Court ’ s settled case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). Nevertheless, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 34, § 10, Series A no. 6; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006 ‑ VI). The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even where it is not specifically aimed at that group ( see Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001 ) and that discrimination potentially contrary to the Convention may result from a de facto situation ( see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII).", "81. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996 ‑ IV). The scope of this margin will vary according to the circumstances, the subject-matter and its background ( see Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87, and Inze v. Austria, 28 October 1987, § 41, Series A no. 126 ), but the final decision as to observance of the Convention ’ s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved ( see Weller, cited above, § 28; Stec and Others, cited above, §§ 63-64; Ünal Tekeli v. Turkey, no. 29865/96, § 54, ECHR 2004 ‑ X (extracts); and, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002 ‑ IV).", "82. The Court further reiterates that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin, cited above, § 127; Burghartz v. Switzerland, 22 February 1994, § 27, Series A no. 280-B; and Schuler-Zgraggen, cited above, § 67). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States are prevented from imposing traditions that derive from the man ’ s primordial role and the woman ’ s secondary role in the family (see Ünal Tekeli, cited above, § 63).", "83. On the other hand, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy for example ( see Stec and Others, cited above, § 52, and Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014).", "( β ) Proof as regards discrimination", "84. As regards the burden of proof in this sphere, the Court has previously held that, once the applicant has shown that there has been a difference in treatment, it is then for the respondent Government to show that the difference in treatment could be justified ( see, for example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999 ‑ III, and Timishev v. Russia, nos. 55762/00 and 55974/00, § 57, ECHR 2005 ‑ XII ). As far as allegations of indirect discrimination are concerned, the applicant must adduce evidence of disproportionately harmful effects on a particular group, giving rise to a presumption of indirect discrimination; it is then for the respondent State to rebut that presumption by showing that the difference in treatment was the result of objective factors unrelated to the factor indicated by the applicant ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § § 188, 189 and 195, ECHR 2007 ‑ IV; see also Oršuš and Others v. Croatia [GC], no. 15766/03, § 152, ECHR 2010).", "85. As to whether statistics can constitute evidence, the Court stated in the past that statistics could not in themselves disclose a practice which could be classified as discriminatory (see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effects of a general measure or de facto situation ( see Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6 January 2005, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties in finding a difference in treatment between two groups in similar situations ( see D.H. and Others, cited above, § 180, and Oršuš and Others, cited above, § 152).", "86. Hence, in its decision in Hoogendijk, cited above, the Court found as follows :", "“ ... where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.”", "( ii ) Application of the above-mentioned principles to the present case", "87. The Court considers it appropriate to examine whether there has been “indirect” discrimination in the present case.", "( α ) Existence of a presumption of indirect discrimination in the present case", "88. The applicant complained that the application of the combined method for calculating disability was discriminatory. According to the figures supplied by the Government ..., the combined method was applied in 4,168 cases in 2009, that is to say, in approximately 7.5% of all the decisions on disability. Of this total of 4,168, 4,045 cases (in other words, 97%) concerned women and 123 (3%) concerned men.", "89. In its judgments of 28 July 2008 (see paragraph 20 above) and 8 July 2011 ..., the Federal Court itself acknowledged that the combined method of assessing disability was applied in the majority of cases to women who had reduced their working hours following the birth of a child. In their observations before the Court the Government did not dispute the fact that the combined method primarily affected women. Furthermore, in its report of 1 July 2015 ..., the Federal Council noted that the combined method was applied in 98% of cases to women (on the basis of the benefits calculated in December 2013).", "90. In view of these data, the Court considers that the evidence adduced can be regarded as sufficiently reliable and significant to give rise to a presumption of indirect discrimination.", "( β ) Whether there was an objective and reasonable justification for the difference in treatment", "91. The Court reiterates that a difference in treatment is discriminatory if it lacks objective and reasonable justification, that is, if it does not pursue a “legitimate aim” or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see paragraph 80 above).", "– Legitimate aim", "92. In the instant case the Government endeavoured to explain the difference in treatment of the persons concerned by the rule in question, the majority of whom were women who had given birth to children, by referring to the aim of disability insurance, which was to cover individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they had actually been able to carry out previously and which they would still be able to perform if they were in good health.", "93. The Court considers that the aim pursued by the disability insurance legislation, relied on by the Government, is a legitimate aim apt to justify the differences observed. The Court must therefore ascertain whether the treatment to which the applicant was subjected was reasonable and proportionate.", "– Proportionality", "94. The Court notes that the applicant originally worked full - time, as a shop assistant, but had to stop work in 2002 because of back problems. She was granted a 50% disability benefit for the period from 20 June 2002 to the end of May 2004. The benefit was stopped following the birth of her twins owing to the application of the combined method, based on the assumption that – according to her own statements to the Office – if she had not become disabled, the applicant would have reduced her working hours after the birth of her children.", "95. The Government argued that the combined method was not based on the gender of the insured person. They submitted that it simply took into consideration the loss of the insured person ’ s capacity, as a result of disability, to carry on an occupation or perform routine tasks, or both.", "In the Government ’ s view, the loss of income suffered by individuals who reduced their working hours or stopped paid work following the birth of a child was an entirely separate matter, as family considerations of this kind could apply both to persons with a disability and to those in good health.", "96. The Court considers, as stated above, that the aim of disability insurance advanced by the Government – namely to cover individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they would actually be able to perform if they were in good health – is in itself consistent with the essence and the constraints of such an insurance scheme, which has limited resources and must therefore be guided in part by the principle of control of expenditure.", "Nevertheless, the Court considers that this goal must be assessed in the light of equality between the sexes, since the case concerns alleged discrimination against women. As observed above, very weighty reasons have to be put forward before a difference of treatment based on this ground can be regarded as compatible with the Convention ( see paragraph 82 above ). The Court thus concludes that the authorities ’ margin of appreciation was considerably reduced in the present case.", "97. The Court is well aware that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law (see Winterwerp v. the Netherlands, 24 October 1979, § 46, Series A no. 33). Nevertheless, it notes, on the basis of the relevant domestic law and practice set out above, that the applicant would in all likelihood have obtained a partial disability benefit had she worked full - time or devoted her time entirely to household tasks. Furthermore, as she had previously worked full ‑ time she was initially granted such a benefit, which she continued to receive until the birth of her children. It follows clearly that the refusal to grant her entitlement to a benefit was based on her assertion that she wished to reduce her paid working hours in order to take care of her home and her children. In practice, for the great majority of women wishing to work part ‑ time following the birth of a child, the combined method is a source of discrimination.", "98. The Court also observes that the application of the combined method in accordance with the case-law of the Federal Court has been the subject of criticism for some time from certain courts and legal commentators. Hence, in its judgment concerning the applicant (see paragraph 20 above), the Federal Court explicitly conceded that the interplay between the “household” and “ paid employment ” aspects was not taken sufficiently into account in the combined method and that this could result in a complete loss of benefit where the insured person stopped paid work or reduced his or her working hours, often following the birth of a child. Moreover, this finding was upheld by the Federal Council in its report of 1 July 2015 ... The Federal Council added that the combined method also attracted criticism because the fact of working part - time was taken into account twice: once in determining the person ’ s income in the absence of a disability, and again in weighting the relative proportions of the two aspects.", "99. In its leading judgment on the subject, the Federal Court acknowledged that the combined method was applied in the majority of cases to women and was open to question. However, it considered that it was for the legislature rather than the courts to propose a solution that would take greater account of sociological developments in society and the situation of half-time workers, most of whom were women ...", "100. The Court further observes that, in its report of 1 July 2015, the Federal Council summarised and analysed in detail the criticisms of the combined method. It acknowledged that the combined method could result in a lowering of the degree of disability recognised and that a question could arise regarding possible discrimination, at least of an indirect nature.", "In the Court ’ s view, these are clear indications of a growing awareness of the fact that the combined method is no longer consistent with efforts to achieve gender equality in contemporary society, in which women increasingly and legitimately seek to reconcile family life and career.", "101. The Court also notes that even some specialised tribunals, such as the Cantonal Court in the instant case (see paragraph 18 above), support a method that would be more favourable to insured persons who work part ‑ time and would take due account of their disability in both the “paid employment ” and “household tasks ” components. Moreover, the Court observes that several methods of calculating disability exist under Swiss law ... Accordingly, the Court notes that alternative calculation methods are possible which would take greater account of women ’ s choice to work part ‑ time following the birth of a child, thus enabling the aim of greater gender equality to be pursued without jeopardising the objective of disability insurance.", "102. In addition to these general considerations concerning the combined method, the Court considers that the refusal to grant the applicant even a partial benefit has significant practical repercussions for her, even assuming that she could work part - time. Her notional income, calculated on the basis of half-time work, was estimated by the Office at only CHF 24,293 (approximately EUR 23,654) when her degree of disability was calculated (see paragraph 15 above).", "Conclusion", "103. In view of the foregoing, the Court is not persuaded that the difference in treatment to which the applicant was subjected – having been refused a disability benefit owing to the application of the combined method of calculating the degree of disability, used for persons working part - time – had a reasonable justification.", "104. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 in the present case.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1975 and lives in Elazığ.", "5. On 19 October 1999 the applicant sat an examination in order to become a public servant. She was successful in the examination and on an unspecified date she was informed by the State Personnel Department attached to the Prime Minister ’ s office that she had been appointed to the post of security officer in the Batman branch of TEDAŞ, the state-run Electricity Company, the first of the five choices that the applicant had made in the course of the examination procedure.", "6. On 5 July 2000 the human resources department of the Batman branch of TEDAŞ informed the applicant that she would not be appointed as she did not fulfil the requirements of “being a man” and “having completed military service”.", "7. In a letter dated 9 August 2000 and addressed to the Ministry of Energy and Natural Resources, the human resources department of TEDAŞ requested the Ministry to provide a list of new persons to be appointed instead of a number of persons, including the applicant, who could not be recruited for various reasons. As regards the applicant and three other persons, B.U., R.B. and A.O.C., the human resources department of TEDAŞ informed the Ministry that they were women and therefore could not work as security officers. In the letter, it was stated that security officers had the task of protecting depots, switchyards and transformer stations in rural areas far from city centres, against attacks and in case of fire and sabotage. They were obliged to work day and night and to use weapons, including those with long barrels, and physical force in case of an attack. It was therefore considered that women were not suitable for the post of security officer.", "8. On 18 September 2000 the applicant lodged an action against the general directorate of TEDAŞ with the Ankara Administrative Court requesting the annulment of the decision of the Batman branch of TEDAŞ with all its financial consequences. In her deposition, the applicant noted that being a man was not a requirement for appointment to the post in question and that she fulfilled all the requirements for that post. The applicant also noted that she had been deprived of the opportunity to be appointed to one of the other four posts that she had indicated following the refusal in question and that she could not sit the examination again in 2000 as she had succeeded in 1999.", "9. On an unspecified date the general directorate of TEDAŞ submitted to the administrative court that one of the requirements for the post in question had been declared by the State Personnel Department as “having completed military service” and that therefore only men could be appointed to the post. The applicant, being a woman, could therefore not be recruited as a security officer.", "10. On 27 February 2001 the Ankara Administrative Court annulled the decision of the Batman branch of TEDAŞ. The court held that the requirement of “having completed military service” should be considered to apply only to male candidates and that there had been no restriction on women working as security officers in TEDAŞ. The court also noted that another woman, Y.P., who had also brought a case against TEDAŞ for the same reasons as the applicant, had been appointed to the post of security officer after she had lodged the case.", "11. Subsequent to the judgment of 27 February 2001, the applicant was offered a contract by the Batman branch of TEDAŞ. On 11 July 2001 she took up her duties. On 1 March 2002 she was transferred to the Elazığ branch of TEDAŞ as her husband lived and worked in that city.", "12. On 8 May 2001 TEDAŞ lodged an appeal against the judgment of 27 February 2001, requesting the Supreme Administrative Court to order a stay of execution of the judgment of the Ankara Administrative Court and to subsequently quash it. The representative of TEDAŞ submitted, inter alia, that the announcement of the post of security officers in the Batman branch contained the requirement of “having completed military service” and not “in respect of male candidates, having completed military service”, unlike the post in the Gaziantep branch of TEDAŞ, which first rejected Y.P. According to the lawyer, this expression demonstrated that the post was reserved for male candidates only and that therefore the status of the applicant was different from that of Y.P.", "13. On 27 June 2001 the Supreme Administrative Court dismissed the request for a stay of execution.", "14. On 31 March 2003 the Twelfth Division of the Supreme Administrative Court quashed the judgment of the Ankara Administrative Court, holding that the requirement regarding military service demonstrated that the post in question was reserved for male candidates and that this requirement was lawful having regard to the nature of the post and the public interest. The high court therefore found that the administration ’ s decision had been in accordance with the law.", "15. On 1 August 2003 the applicant requested rectification of the decision of 31 March 2003. In her petition, she submitted that the post of security officer was not reserved for male candidates and that therefore the high court ’ s decision was in breach of the principle of equality.", "16. On 17 March 2004 the applicant was dismissed from her post at the Elazığ branch of TEDAŞ. According to the letter sent by the deputy head of the human resources department of TEDAŞ to the Elazığ branch, the applicant ’ s contract was to be terminated on account of the decision of the Supreme Administrative Court dated 31 March 2003.", "17. On 22 March 2004 the applicant lodged a petition with the Supreme Administrative Court. She maintained that she had lost her post and requested the high court to order a stay of execution of the decision of 31 March 2003. She noted, in her petition, that the post in question should not be reserved only for men, since certain acts, such as a body search on women, should be carried out by female officers.", "18. On 16 April 2004 her request was dismissed by the Twelfth Division.", "19. On 11 October 2005 the Twelfth Division of the Supreme Administrative Court further dismissed the applicant ’ s request for rectification.", "20. On 21 February 2006 the Ankara Administrative Court dismissed the applicant ’ s case, taking into consideration the decision of the Supreme Administrative Court.", "21. On 24 April 2006 the applicant appealed. In her deposition she noted that there were three other similar cases brought against TEDAŞ by female candidates for the same reasons as hers and that one of these cases, brought by R.B., who had also not been appointed to a post of security officer in the Batman branch of TEDAŞ on the same grounds as those applied to the applicant, was pending before the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions. She further noted that she would have lost the opportunity to apply for another public post, had the high court decided in favour of TEDAŞ.", "22. On 6 December 2007 the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions ( Danıştay İdari Dava Daireleri Genel Kurulu ) issued a decision in favour of R.B. The General Assembly held that the requirement of “having completed military service” should be considered to apply only to male candidates and that the refusal to appoint R.B. to the Batman branch of TEDAŞ had therefore been unlawful.", "23. On 12 February 2008 the Twelfth Division of the Supreme Administrative Court upheld the judgment of 21 February 2006, holding that the latter was in accordance with the law. In its decision, the court noted the content of the decision of the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions but did not comment on it.", "24. On 17 March 2008 the applicant requested rectification of the decision of 12 February 2008, maintaining that the decision in question constituted a breach of the principle of equality and the right to a fair hearing since the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions had ruled in favour of R.B. She further claimed that there had been discrimination, since pursuant to the Constitution no distinction could be made in public employment.", "25. On 17 September 2008 the Twelfth Division of the Supreme Administrative Court dismissed the applicant ’ s request." ]

[ "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL", "A. The Constitution", "26. The relevant provisions of the Constitution of Turkey, as in force at the material time, read as follows:", "Article 10 - Equality before the law", "“Everyone is equal before the law without distinction as to language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such grounds.", "Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice.", "No privilege shall be granted to any individual, family, group or class.", "State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all proceedings.”", "Article 70 - Entry into public service", "“Every Turk has the right to enter public service.", "No criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service.”", "B. Supreme Administrative Court Act (Law no. 2575)", "27. According to section 38 of the Supreme Administrative Court Act (Law no. 2575), the General Assembly of Administrative Proceedings Divisions of the Supreme Administrative Court has the authority to review administrative courts ’ decisions confirming their previous judgments, following decisions by the Supreme Administrative Court Divisions quashing those previous judgments.", "28. Section 39 of Law no. 2575 stipulates that if a conflict or a dispute arises between the decisions of Divisions and the General Assembly of Administrative Proceedings or Tax Proceedings Divisions of the Supreme Administrative Court, rendered either by the same organ or by different organs, the Assembly on the Unification of Conflicting Case-Law must examine the matter and decide on the harmonisation of the conflicting judgments upon referral by the President of the Supreme Administrative Court and receipt of the opinion of the principal public prosecutor at the Supreme Administrative Court.", "C. The revised European Social Charter", "29. Article 20 of the revised European Social Charter, ratified by Turkey in 2007, provides as follows:", "Article 20 - The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex", "“With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields:", "a. access to employment, protection against dismissal and occupational reintegration;", "b. vocational guidance, training, retraining and rehabilitation;", "c. terms of employment and working conditions, including remuneration;", "d. career development, including promotion.”", "D. The United Nations Convention on the Elimination of All Forms of Discrimination against Women", "30. Article 11 § 1 of the UN Convention on the Elimination of All Forms of Discrimination against Women, ratified by Turkey in 1985, provides as follows:", "“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:", "a. the right to work as an inalienable right of all human beings;", "b. the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;", "c. the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;", "d. the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;", "e. the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;", "f. the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION", "31. The applicant complained under Article 14 of the Convention that the administrative authorities ’ decisions and the domestic courts ’ judgments constituted discrimination against her on grounds of sex.", "32. The Government contested those allegations.", "33. The Court, as the master of the characterisation to be given in law to the facts of any case before it (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005; Zorica Jovanović v. Serbia, no. 21794/08, § 43, 26 March 2013; and, most recently, İhsan Ay v. Turkey, no. 34288/04, § 22, 21 January 2014 ) and having regard to the circumstances of the present case, considers that this complaint falls to be examined under Article 14 of the Convention, taken in conjunction with Article 8 of the Convention. Articles 8 and 14 of the Convention read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "1. Compliance with Article 35 § 1 of the Convention", "34. The Government submitted that the applicant had failed to comply with Article 35 of the Convention as she had failed to lodge an action with the administrative or civil courts requesting compensation for the alleged damage caused to her by the conduct of the administrative authorities or civil servants. Alternatively, they submitted that the applicant had failed to lodge her application with the Court within the six-month time-limit.", "35. The applicant maintained that she had exhausted the available domestic remedies. She noted that she had even requested rectification of the Supreme Administrative Court ’ s decisions, even though that was not obligatory under Turkish law.", "36. As regards the Government ’ s objection that the applicant had failed to exhaust domestic remedies, the Court notes that her claims concern her inability to take up her duties and, subsequently, her dismissal from public employment. It observes in this connection that she brought and pursued an action for the annulment of the administrative authorities ’ decisions before the administrative courts and asked for her financial loss to be compensated. The Court therefore considers that the applicant brought her grievances under the Convention to the attention of the appropriate judicial authorities in domestic law. Moreover, the Government have not demonstrated how an action for compensation before administrative or civil courts would provide redress for the applicant ’ s grievances. Nor did they provide any example in which an action for compensation before such courts had been successful in situations similar to that of the applicant. The Court accordingly rejects the Government ’ s objection under this head.", "37. As to the Government ’ s objection regarding the six-month rule, the Court observes that the final domestic decision was rendered on 17 September 2008 and the application was lodged on 1 December 2008. The Court therefore considers that the present application was introduced in conformity with the six-month time-limit and rejects the Government ’ s objection.", "2. Applicability of Article 14 of the Convention taken in conjunction with Article 8", "38. The Government submitted that neither Article 8 nor Article 14 was applicable in the instant case as it concerned a right which was not secured by the Convention, namely the right to recruitment as a public servant. Referring to the judgments of Glasenapp v. Germany (28 August 1986, Series A no. 104), Kosiek v. Germany (28 August 1986, Series A no. 105) and Thlimmenos v. Greece ([GC], no. 34369/97, ECHR 2000 ‑ IV), the Government maintained that the refusal to appoint a person as a public servant could not as such provide the basis for a complaint under the Convention. They also maintained that the applicant would be able to obtain public-service employment as long as she fulfilled the requirements of another post.", "39. The applicant maintained, in reply, that the domestic authorities had accepted her candidature for the post of security officer in the Batman branch of TEDAŞ and had appointed her to the post even though it was known to them that she was a woman. Besides, she had worked as a security officer in TEDAŞ between 11 July 2001 and 17 March 2004 and had subsequently been dismissed from her post. She lastly alleged that she had lost the opportunity to take up other posts in the public sector and to sit a similar examination, as a result of the administrative and judicial decisions.", "40. The Court reiterates that Article 14 of the Convention protects individuals in similar situations from being treated differently without justification in the enjoyment of their Convention rights and freedoms. This provision has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable, it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos, cited above, § 40, and Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 38, ECHR 2004 ‑ VIII). The Court should therefore establish whether the facts of the case fall within the ambit of Article 8 of the Convention, in order to rule on the applicability of Article 14.", "41. In this connection, the Court reiterates that the right of recruitment to the civil service was deliberately omitted from the Convention. Consequently, the refusal to appoint a person as a civil servant cannot as such provide the basis for a complaint under the Convention (see Vogt v. Germany, 26 September 1995, § 43, Series A no. 323, and Otto v. Germany (dec.), no. 27574/02, 24 November 2005).", "42. The Court considers, however, that the issue to be examined in the present case is not whether the applicant had a right to be recruited to the civil service. The applicant did not complain about the refusal of the domestic authorities to appoint her as a civil servant as such. She, for example, did not complain about her failure to become a civil servant on the ground that she did not possess the necessary qualifications required of anyone seeking such a post. Her submissions under this head concerned the difference in treatment to which she had been subjected on the ground of her sex (compare Glasenapp v. Germany, 28 August 1986, § 52, Series A no. 104; and Kosiek v. Germany, 28 August 1986, § 38, Series A no. 105). Besides, the applicant succeeded in the examination in order to become a public servant and was notified that she would take up the post of security officer in the Batman branch of TEDAŞ by the State Personnel Department attached to the Prime Minister ’ s office, before the Batman branch of TEDAŞ refused to recruit her (see paragraph 5 above). What is more, subsequent to the judgment of the Ankara Administrative Court of 27 February 2001, she was given the post of security officer on a contractual basis on 11 July 2001 and worked in the Batman and Elazığ branches of TEDAŞ until 17 March 2004 (see paragraphs 11 and 16 above). In these circumstances, in the Court ’ s view, the applicant should be regarded as an official who was appointed to the civil service and subsequently dismissed.", "43. The Court has consistently held that a person who has been appointed as a civil servant can complain of being dismissed if that dismissal violates one of his or her rights under the Convention, including Article 8. Civil servants do not fall outside the scope of the Convention (see Glasenapp, cited above, § 49; Kosiek, cited above, § 35; Vogt, cited above, § 43; and Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999 ‑ VII). With regard to Article 8, the Court has already held in a number of cases that the dismissal from office of a civil servant constituted an interference with the right to private life (see Özpınar v. Turkey, no. 20999/04, §§ 43-48, 19 October 2010; and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 165-167, 9 January 2013).", "44. Turning back to the circumstances of the present case, the Court reiterates that the administrative authorities dismissed the applicant from her post in 2004 on the ground of her sex. In the Court ’ s view, the concept of “private life” extends to aspects relating to personal identity and a person ’ s sex is an inherent part of his or her identity. Thus, a measure as drastic as a dismissal from a post on the sole ground of sex has adverse effects on a person ’ s identity, self-perception and self-respect and, as a result, his or her private life. The Court therefore considers that the applicant ’ s dismissal on the sole ground of her sex constituted an interference with her right to respect for her private life (see, mutatis mutandis, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999 ‑ VI). Besides, the applicant ’ s dismissal had an impact on her “inner circle” as the loss of her job must have had tangible consequences for the material well-being of her and her family (see Oleksandr Volkov, cited above, § 166). The applicant must also have suffered distress and anxiety on account of the loss of her post. What is more, the applicant ’ s dismissal affected a wide range of her relationships with other people, including those of a professional nature and her ability to practise a profession which corresponded to her qualifications (see Sidabras and Džiautas, cited above, § 48; Oleksandr Volkov, cited above, § 166; and İhsan Ay, cited above, § 31). Thus, the Court considers that Article 8 is applicable to the applicant ’ s complaint.", "45. Finally, the applicant alleged that she had lost the opportunity to take up other positions in the public sector and to sit a similar examination, as a result of the administrative and judicial decisions, whereas the Government denied the veracity of this claim, both parties failing to substantiate their arguments. The Court does not consider it necessary to rule on this claim. In the Court ’ s view, even assuming that the applicant was able to take up another job in the public sector, as claimed by the Government, this would not suffice to erase the alleged detrimental effect of her dismissal on grounds of sex and the ensuing judicial proceedings on her private life (see, mutatis mutandis, I.B. v. Greece, no. 552/10, § 72, ECHR 2013).", "46. In the light of the foregoing, the Court considers that Article 14 of the Convention is applicable in the circumstances of this case, taken in conjunction with Article 8, and rejects the Government ’ s objection.", "3. Conclusion", "47. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "48. The Government maintained that there had been an objective and reasonable justification for the refusal of the domestic authorities to appoint the applicant to the post of security officer. They noted that the post in question had been reserved for male candidates in view of the nature of the service and the need to recruit male personnel. Referring to the considerations of the human resources department of TEDAŞ (see paragraph 7 above) the Government contended that all female candidates had been refused appointment to the post in question.", "49. The applicant submitted in reply that she had worked as a security officer in the Batman and Elazığ branches of TEDAŞ subsequent to the Ankara Administrative Court ’ s judgment. Besides, the administrative courts had ruled in favour of at least two other women, Y.P. and R.B., whose appointment to the posts of security officer in the Gaziantep and Batman branches of TEDAŞ had been previously refused. She considered that the Government ’ s observations were not relevant in the circumstances of the case.", "50. The Court reiterates that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in comparable situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94 and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013).", "51. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Ünal Tekeli v. Turkey, no. 29865/96, § 52, ECHR 2004 ‑ X (extracts), and Vallianatos and Others v. Greece [GC], cited above, § 76, ECHR 2013, and the cases cited therein). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and the background to the case (see Ünal Tekeli, cited above, § 52), but the final decision as to observance of the Convention ’ s requirements rests with the Court (see Kafkaris v. Cyprus [GC], no. 21906/04, § 161, ECHR 2008). Where a difference of treatment is based on sex, the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen should in general be suited to the fulfilment of the aim pursued, but it must also be shown that it was necessary in the circumstances. The Court further reiterates that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin v. Russia [GC], no. 30078/06, § 127, ECHR 2012 (extracts) ).", "52. In the present case, the Court observes at the outset that both the administrative authorities and the Twelfth Division of the Supreme Administrative Court considered that the post of security officer in the Batman branch of TEDAŞ was reserved for men and that therefore the applicant, being a woman, was not suitable for the post. In the Court ’ s view, this is a clear “difference in treatment”, on grounds of sex, between persons in an analogous situation.", "53. As regards the question of whether the difference in treatment between women and men was objectively and reasonably justified under Article 14, the Court takes note of the Government ’ s submissions concerning the nature of the service carried out by security officers in the Batman branch of TEDAŞ and the working conditions therein (see paragraph 48 above). These explanations were also submitted by the human resources department of the same branch to the Ministry of Energy and Natural Resources (see paragraph 7 above). The Court observes in this connection that the main consideration in these explanations is that the activities of security officers carried certain risks and responsibilities as the security officers had to work at nights in rural areas and since they had to use firearms and physical force in case of an attack on the premises they were guarding. It appears that the administrative authorities considered that women were unable to face those risks and assume such responsibilities. There is, however, no explanation in the submissions of the administrative authorities or the Government as to this purported inability. What is more, the decisions of the Twelfth Division of the Supreme Administrative Court did not contain any assessment of those considerations on the part of the administration. Nor did the Twelfth Division give any other reasoning as to why only men were suitable for the post in question.", "54. The Court is aware that there may be legitimate requirements for certain occupational activities depending on their nature or the context in which they are carried out. However, in the instant case, neither the administrative authorities nor the Twelfth Division of the Supreme Administrative Court substantiated the grounds for the requirement that only male staff be employed in the post of security officer in the Batman branch of TEDAŞ. The absence of such reasoning in the Twelfth Division ’ s decision is particularly noteworthy given that only three months prior to that decision, the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions had held, in the case brought by R.B., that there had been no obstacle to the appointment of a woman to the post of security officer in the Batman branch of TEDAŞ. The Court, for its part, also takes the view that the mere fact that security officers in Batman had to work on night shifts and in rural areas and might be required to use firearms and physical force under certain conditions could not in itself justify the difference in treatment between men and women.", "55. Moreover, the applicant worked in the Batman and Elazığ branches of TEDAŞ between 11 July 2001 and 17 March 2004 as a security officer. The Court notes that the reason for her subsequent dismissal from the post of security officer was not her inability to assume the risks or responsibilities of her position but the judicial decisions. There is nothing in the case file to indicate that the applicant failed to fulfil her duties as a security officer in TEDAŞ because of her sex.", "56. In sum, it has not been shown that the difference in treatment pursued a legitimate aim. The Court concludes that this difference in treatment, of which the applicant was a victim, amounted to discrimination on grounds of sex.", "There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 8.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "57. The applicant complained under Article 6 of the Convention that the proceedings that she had brought before the administrative courts had not been concluded within a reasonable time. She further maintained under the same head that the domestic courts had delivered contradictory decisions in identical cases and that the Twelfth Division of the Supreme Administrative Court had failed to examine her submissions regarding the decision rendered by the General Assembly of Administrative Proceedings Divisions with regard to R.B.", "58. The Government contested those arguments.", "59. The Court considers that these complaints should be examined from the standpoint of Article 6 § 1 of the Convention, which provides, in so far as relevant, as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”", "A. Admissibility", "1. Applicability of Article 6 of the Convention", "60. The Government submitted that Article 6 was not applicable in the instant case as the administrative decisions concerning the applicant fell within the sphere of public law.", "61. The applicant did not make any submission on this issue.", "62. The Court notes at the outset that it will examine the Government ’ s objection under this head in the light of the principles set out in the judgment Vilho Eskelinen and Others v. Finland [GC ] (no. 63235/00, §§ 40-64, ECHR 2007 ‑ II). In this connection, the Court observes that it is not disputed that the applicant had a right, according to the domestic law, to apply for the post of security officer and that there was a genuine and serious “dispute” (“ contestation ” in the French text) within the meaning of Article 6 § 1. The Court further observes that the applicant clearly had access to a court in order to challenge the lawfulness of her dismissal from the post of security officer. As a result, the applicant had the right to challenge before the domestic courts the administrative decisions. The domestic courts examined the merits of the applicant ’ s appeals and in so doing they determined the dispute over her rights. The Court therefore finds that Article 6 of the Convention is applicable to the present case and rejects the Government ’ s objection (see, mutatis mutandis, Vilho Eskelinen and Others, cited above, §§ 61-62; Lombardi Vallauri v. Italy, no. 39128/05, § 62, 20 October 2009; Eero Penttinen v. Finland (dec.), no. 9125/07, 5 January 2010; and Juričić v. Croatia, no. 58222/09, §§ 53-56, 26 July 2011 ).", "2. Compliance with Article 35 § 1 of the Convention", "63. The Court notes that a new domestic remedy was established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that in its decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, as a new domestic remedy could have been envisaged. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.", "64. The Court further points out that, in its decision in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could pursue the examination of applications of this type of which notice had already been given to the Government. It notes that in the present case the Government did not raise an objection in respect of the new domestic remedy. In the light of the above, the Court decides to pursue the examination of the present application (see Rifat Demir v. Turkey, no. 24267/07, §§ 34 ‑ 36, 4 June 2013).", "3. Conclusion", "65. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. As regards the length of the proceedings", "66. The Government contended that the length of the proceedings could not be considered unreasonable in view of the complexity of the case and the conduct of the parties.", "67. The applicant reiterated her claim.", "68. The Court observes that the period to be taken into consideration began on 18 September 2000 and ended on 17 September 2008. It thus lasted eight years for two levels of jurisdiction and the case was pending before the Supreme Administrative Court for approximately seven years and three months out of this total period.", "69. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues that are similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and İhsan Ay, cited above, § 48 ). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "There has accordingly been a breach of Article 6 § 1 of the Convention.", "2. As regards the fairness of the proceedings", "70. The Government maintained that the applicant had been able to submit her arguments to the domestic courts and that all decisions taken in the proceedings had contained extensive reasoning. They contended that there was nothing in the case file to show that the proceedings brought by the applicant had been unfair.", "71. The applicant maintained, in reply, that the Twelfth Division of the Supreme Administrative Court had failed to take into consideration the decision rendered by the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions in favour of R.B. and that, as a result, the highest court had given contradictory decisions in respect of two persons in the same situation.", "72. The Court reiterates at the outset that conflicting decisions in similar cases heard in the same court which, in addition, is the court of last instance in the matter may, in the absence of a mechanism which ensures consistency, breach the principle of fair trial and thereby undermine public confidence in the judiciary, such confidence being one of the essential components of a State based on the rule of law (see Balažoski v. the former Yugoslav Republic of Macedonia, no. 45117/08, § 30, 25 April 2013, and the cases cited therein). In the Iordan Iordanov and Others case, the Court identified the issues that needed to be assessed when analysing whether conflicting decisions in similar cases stemming from the same court violated the principle of legal certainty under Article 6 of the Convention: (1) the existence of “profound and long-lasting divergences” in the relevant case-law; (2) whether the domestic law provided for a mechanism capable of removing the judicial inconsistency; and (3) whether this mechanism was applied and, if so, what its effects were (see Iordan Iordanov and Others v. Bulgaria, no. 23530/02, § 49, 2 July 2009). Consequently, the Contracting States had an obligation to organise their legal system so as to avoid the adoption of discordant judgments (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 55, 20 October 2011).", "73. In the present case, the Court notes that, in support of her claims under this head, the applicant submitted only one decision rendered by the Supreme Administrative Court ’ s General Assembly of Administrative Proceedings Divisions in favour of R.B., who had also been refused a post of security officer in the Batman branch of TEDAŞ on grounds of sex. While it is true that the Twelfth Division of the Supreme Administrative Court and the General Assembly of Administrative Proceedings Divisions reached different conclusions in seemingly identical cases, it cannot be said that there were “profound and long-standing differences” in the case-law of the Supreme Administrative Court. The Court further notes that, although it is not directly accessible to plaintiffs, according to Article 39 of the Supreme Administrative Court Act (Law no. 2575), in cases where there is inconsistency between a decision of a division of the Supreme Administrative Court and the General Assembly of Administrative Proceedings Divisions, the Assembly for the Unification of Conflicting Case-Law renders a legally binding decision settling the conflict of case-law. Taking these aspects into consideration, the Court finds no reason to further examine whether the aforementioned provision for overcoming the judicial inconsistencies could have been applied in the instant case and to what effect (see, mutatis mutandis, Arişanu v. Romania (dec.), no. 17436/09, 28 January 2014). In these circumstances and bearing in mind that it is not the Court ’ s function to compare different decisions of national courts, even if given in similar proceedings, the Court considers that the difference of interpretation between the Twelfth Division and the General Assembly of Administrative Proceedings Divisions does not, in itself, constitute a violation of Article 6 of the Convention.", "74. The Court, however, reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court ’ s decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001; and Stepanyan v. Armenia, no. 45081/04, § 35, 27 October 2009 ).", "75. The Court notes that it is not in dispute between the parties that, in her appeal, the applicant drew the attention of the Twelfth Division of the Supreme Administrative Court to the case brought by R.B. (see paragraph 21 above). Moreover, in its decision dated 12 February 2008, the Twelfth Division cited the text of the decision rendered by the General Assembly of Administrative Proceedings Divisions on 6 December 2007 with regard to R.B. (see paragraph 23 above). The Twelfth Division of the Supreme Administrative Court, however, did not consider the applicant ’ s submissions or the decision of 6 December 2007 and simply endorsed the Ankara Administrative Court ’ s judgment. Although such a technique of reasoning by an appellate court is, in principle, acceptable, in the circumstances of the present case, it failed to satisfy the requirements of a fair hearing. Following the administrative court ’ s judgment and prior to the examination of the applicant ’ s appeal, the General Assembly of Administrative Proceedings Divisions had rendered a decision which was in conflict with the administrative court ’ s judgment. In the Court ’ s opinion, under those circumstances, the applicant ’ s submissions regarding the case of R.B. required an adequate response by the Twelfth Division. In addition, the applicant ’ s request for rectification of the decision containing an explicit reference to the decision of 6 December 2007 was also dismissed by the Twelfth Division without any reasoning (see paragraph 25 above). The Court therefore considers that the Twelfth Division of the Supreme Administrative Court failed to fulfil its duty to provide adequate reasoning for its decisions.", "There has accordingly been a violation of Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "76. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "77. The applicant claimed 200,000 euros (EUR) and EUR 50,000 in respect of pecuniary and non-pecuniary damage, respectively.", "78. The Government contested these claims, submitting that the requested amounts were unsubstantiated and excessive.", "79. The Court observes that the applicant did not submit any relevant documents to substantiate her claim for pecuniary damage. It therefore rejects this claim. The Court, however, finds that she must have suffered pain and distress which cannot be compensated for solely by the Court ’ s finding of a violation. Having regard to the nature of the violations found, the Court finds it appropriate to award her EUR 10,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "80. The applicant also claimed EUR 5,000 for the costs and expenses incurred before the domestic courts and EUR 7,500 for those incurred before the Court, without submitting any documentary evidence in support of her claims.", "81. The Government contested the applicant ’ s claims.", "82. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not demonstrated that she actually incurred the costs claimed. In particular, she has failed to submit documentary evidence, such as bills, receipts, or a breakdown of the hours spent by her lawyer on the case. Accordingly, the Court makes no award under this head.", "C. Default interest", "83. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicants were born in 1974 and 1966 respectively and live in Sofia. The first applicant was represented by Ms D. Marcheva, a lawyer practising in Sofia. The second applicant was represented by Mr P. Borisov, a lawyer practising in Pernik.", "3. The Government were represented by their Agent, Ms I. Stancheva ‑ Chinova, of the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "application no. 18592/15", "5. The first applicant is a single mother who lives with and cares for her two children, born in 2003 and 2006 respectively.", "Administrative proceedings for the payment of a family allowance", "6. On 30 September 2013 the first applicant applied, under section 7(9) of the Family Allowances for Children Act 2002 (“the FACA”), for a family allowance for families of children who had only one living parent (see paragraph 37 below).", "7. The Directorate for Social Family Allowances in Krasno Selo (“the Directorate”) refused to pay the allowance to the first applicant in an order issued on 14 October 2013. The reason given was that her situation did not fulfil the legal requirements set out in section 7(9) of the FACA; in particular, she had not submitted the documents required under section 17(3), points 13 and 14, of the Regulations for the implementation of the FACA (see paragraph 41 below).", "8. The first applicant challenged the order before the higher administrative body, the Regional Agency for Social Assistance (“the Agency”), which upheld it on 4 December 2013. In particular, having established that the first applicant’s family consisted of her and her two children, the Agency found that she had not submitted any evidence to show that her children had been recognised by their father and that he had died. Likewise, she had not produced a certificate attesting that the children were their father’s statutory heirs (an “heirs certificate”) or a family-status certificate showing that she was not married.", "Judicial review proceedings regarding the payment of the family allowance", "9. The first applicant brought judicial review proceedings.", "10. She pointed out that she had submitted a certificate showing that the children’s father was unknown. As to an heirs certificate, it was objectively impossible for her to produce such a document, given that the children’s paternity had not been established. She further argued that the administration’s refusal to grant her the allowance in question was unlawful, as it was contrary to Article 6 § 2 of the Constitution, which prohibited discrimination on the basis, among other things, of origin (see paragraph 32 below). The legal definition of “children with only one living parent”, set out in paragraph 1, point 9, of the Additional Provisions of the FACA (see paragraph 40 below), could not exclude children who had not been recognised by their father. If the legislature had meant for section 7(9) of the FACA to apply only to children one of whose parents had died, they would have expressly said so by using the formulation “children with one deceased parent” instead of the current formulation “children with only one living parent”.", "11. The applicant referred to Article 16 of the revised European Social Charter (see paragraph 56 below), Article 23 of the International Covenant on Civil and Political Rights (“the ICCPR” – see paragraph 61 below) and Article 9 of the International Covenant on Economic, Social and Cultural Rights (“the ICESCR” – see paragraph 62 below).", "First instance proceedings", "12. In a judgment of 14 March 2014, the Sofia City Administrative Court set aside the Directorate’s order and remitted the case to it to decide on the merits of the first applicant’s request in line with the reasoning in the court’s judgment.", "13. The City Court established that the first applicant’s family status corresponded to that of “unmarried individuals” and that she cared for her two minor children alone. The children’s birth certificates indicated their father as “unknown”. The court went on to observe that the law did not differentiate between children living in families as defined in paragraph 1 of the Additional Provisions of the FACA (see paragraph 39 below) and children in families where the parents were not married. It was unacceptable to place children whose parents were not married or did not live together, or whose fathers had not recognised them, in a less favourable position than that of children growing up in families that matched the legal definition above. Accordingly, a mother and her two children who have not been recognised by their father, the latter being unknown, represented a family within the meaning of the above-mentioned provision. Therefore, such children had only one living parent, given that the other one was unknown.", "14. The City Court went on to find that the refusal by the administrative body to grant the allowance in question to the first applicant was contrary to Article 3 § 1 of the 1989 UN Convention on the Rights of the Child, in force in respect of Bulgaria since 1991 (see paragraph 60 below). The refusal was not in the best interest of the children, and that interest had to be the central consideration in the decision-making process of any institution, be it a private or a public one. Accordingly, if the legislation stated that the State provided assistance to the children of a parent whose husband or wife had died, it was reasonable to conclude that this also applied to children with only one parent, irrespective of whether the other parent had died or the children had not been recognised by their father.", "15. The court further held that depriving families in which one of the parents was unknown, or had not recognised the children, of the allowance in question would result in discrimination on the basis of social status vis ‑ à ‑ vis the parent who was alive. The law had envisaged that the allowance was due to families with children who had only one living parent, irrespective of the income of the family. Consequently, the granting of that family allowance had to be extended to all children who were being raised by only one parent. As a result of the absence of their second parent by virtue of being unknown, those children were in an identical situation to children one of whose parents had died.", "16. Indeed, a father was not obliged to recognise a child if he did not want to do so; a mother did not dispose of any legal mechanism to compel the father to recognise the child of his own motion, or to marry her. In both cases, children living in families with only one parent had the same needs and, in both cases, the State had a corresponding responsibility to ensure acceptable conditions for their care. The family allowance due to families under section 7(9) of the FACA (see paragraph 37 below) was determined precisely in view of the needs of children living in such families. The fact that the first applicant was a single mother could not be interpreted to the detriment of her children and be used in order to refuse to grant the family the above-mentioned allowance. Accordingly, the authorities were obliged to grant her the allowance towards providing care for her children as their only living parent.", "Last instance proceedings", "17. Upon an appeal by the Directorate, on 22 October 2014 the Supreme Administrative Court (“the SAC”), in a final judgment, quashed the lower court’s judgment and rejected the first applicant’s challenge to the Directorate’s order of 14 October 2013 (see paragraph 7 above).", "18. The SAC held that while the lower court had correctly established the facts, it had wrongly applied the law. In particular, in order to be eligible for the family allowance provided for by section 7(9) of the FACA, it was necessary to produce an heirs certificate and a family-status certificate, in accordance with the requirement under section 17(3), points 13 and 14, of the Regulations for the implementation of the FACA (see paragraph 41 below). The central consideration was, therefore, whether the case concerned a parent who had survived the death of his or her spouse and parent of his or her children. The common children of the deceased and surviving parents had to be the legal heirs of the former. That was the reason for the requirement to submit a certificate attesting to this with the request for the family allowance. Likewise, there was a requirement that the parent making the request had to be single at the time of the request.", "19. Consequently, the lower court had wrongly concluded that the key element was whether the first applicant as a single mother and her children represented a family. Instead, the crux of the matter was whether there was a surviving parent who had not remarried. The outstanding question therefore was whether the legal provision at stake applied only to situations of semi-orphaned children, or also to situations of children whose fathers had not recognised them. In order to establish the meaning of that provision, namely whether children who had not been recognised have equal rights with semi-orphaned children, it was necessary to look at the intentions of the legislature.", "20. In particular, paragraph 2 of the bill of 13 March 2012 for amending the FACA stated that the reason for introducing section 7(9) of the FACA was to improve the protection available to the most vulnerable group of children, namely those who were being brought up by only one living parent. The logic was that the optimal environment for every child was a family, as well as that there were more difficulties associated with caring for a child one of whose parents had died. Therefore, it could be concluded that, by making this family allowance available irrespective of the income of the family, the legislature had envisaged that it applied only in respect of families in which one of the parents had died.", "21. That had also been the conclusion of the Constitutional Court (“the CC”) in its decision no. 3 of 27 June 2013 in which it had rejected the request by the Ombudsperson to declare unconstitutional section 7(9) of the FACA in so far as it used the word “living” (see paragraphs 43-43 below). Specifically, the CC had found that the loss of a parent was the single most important factor affecting any given family environment. Thus, children most acutely affected by the loss of a parent were, in the first place, those whose parents had both died and, in the second place, those one of whose parents had died. The idea behind the law was that there was a significant difference between a child who is cared for by a surviving parent and a child who is cared for by a parent who has not married. In the latter case, the child had the right to bring an action to establish paternity. As a result of such an action, the child would become part of another family, with all the personal and economic consequences that would bring. This in turn was in the best interest of the child as it was of crucial importance for the establishment of his or her legal status.", "22. The CC had rightly determined that the situation of a child one of whose parents has died was not identical to that of a child who was cared for by a single parent for a different reason. The introduction of a different regime of protection in respect of these two categories was justified in order to ensure equal protection to children cared for by only one living parent.", "23. This led to the conclusion that a broad interpretation of section 7(9) of the FACA was contrary to the purpose of the law. Were the provision to be interpreted broadly, this would result in a much larger group of rather dissimilar cases which would have to be treated equally, in breach of the principle of equality before the law. That in itself would be unjust.", "24. The City Court had wrongly held that refusing to pay the family allowance to the first applicant was in breach of Article 3 of the Convention on the Rights of the Child (see paragraph 14 above). The provision in question provided that States were obliged to ensure that children benefited from the care and protection necessary for their well-being, taking into account the rights and obligations of their own parents or other caregivers, including by means of all necessary administrative and legal measures. It was precisely to provide for the best interests of the child that the legislature had introduced section 7(9) of the FACA, given that it provided the requisite care for children one of whose parents had died.", "Statistical data provided by the Government", "25. According to information provided by the Bulgarian National Statistical Institute, a State agency, the number of children with unknown fathers born in the country between 2007 and 2015 was on average 12,400 per year.", "26. As of February 2017, according to information provided by the State Agency for Social Assistance, the State was paying allowances under the FACA to the families of a total of 640,952 children, while the specific allowance under section 7(9) of the FACA was being paid to the families of 10,570 children with one deceased parent.", "application no. 43863/15", "27. The second applicant is a single mother who lives with and cares for her minor son born in 2007.", "28. She complained to the Commission for the Protection against Discrimination (“the Commission”) about her family being discriminated against as a result of her inability to obtain the allowance provided for by section 7(9) of the FACA because the father of her children was unknown as opposed to deceased. On 13 June 2014 the Commission found that section 7(9) of the FACA provided for less favourable treatment of families of children with only one parent in comparison with families in which one of the parents had died. That, the Commission ruled, was direct discrimination on the basis of “personal status”, “origin” and “family status”.", "29. The Council of Ministers brought judicial review proceedings in respect of this decision. The second applicant participated in the proceedings as an interested party and submitted a reply to the position of the Council of Ministers.", "30. In a judgment of 17 December 2014, the Sofia City Administrative Court overturned the Commission’s decision. The judgment indicated that it could be appealed against within fourteen days from the parties being notified of it (see paragraph 55 below). The second applicant was notified of it on 22 December 2014. She did not appeal against the judgment and neither did the Commission. The judgment thus became final on 20 January 2015.", "31. On 21 April 2015 the second applicant enquired with the Commission about developments in the case and was told orally by a staff member that the Commission had not appealed against the judgment. On 1 July 2015 she wrote to the Commission repeating her request, but received no reply." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Relevant domestic law and practiceThe Constitution", "The Constitution", "The Constitution", "32. Article 6 § 2 provides that all citizens are equal before the law, where the term “citizens” refers to all individuals to whom the Constitution applies. There are to be no privileges or restriction of rights on the grounds of race, national or social origin, ethnic self-identity, sex, religion, education, opinion, political affiliation, personal or social status or property status.", "33. Article 14 provides that the family, motherhood, and childhood enjoy the protection of the State and society.", "34. Article 32 § 1 provides that the privacy of citizens is inviolable. Everyone is entitled to protection against any unlawful interference in his or her private or family affairs and against encroachments on his or her honour, dignity and reputation.", "35. Article 47 provides that the rearing and upbringing of children until the attainment of majority constitutes a right and an obligation for the parents and that the State is to provide assistance to them. Mothers enjoy special protection from the State, which guarantees them paid leave before and after birth, free obstetrical care, easier conditions of work, and other types of social assistance. Under the same provision, children born out of wedlock enjoy equal rights with those born in wedlock. Children left without the care of the immediate family enjoy the special protection of the State and society.", "The FACA", "36. Section 7(1) of the FACA, which was added to the FACA and came into force on 1 January 2013, stipulates that a monthly family allowance for a child who has not finished secondary education, but is no older than 20, is provided to low-income families whose children meet all of the following conditions: (a) they are not cared for full-time in a State institution; (b) they regularly attend school, unless this is impossible due to health reasons; and (c) they live on the territory of Bulgaria on a permanent basis.", "37. Under section 7(9) of the FACA, in cases where the family comprises children with only one living parent, the family’s income is not taken into account as a condition for receiving this monthly allowance.", "38. Section 7(2) of the FACA provides that the monthly family allowance described in section 7(1) is payable, irrespective of the family’s income, also to relatives or foster families who care for children. Under section 8d of the FACA, the monthly allowance is payable also to families with children with permanent disabilities, irrespective of the family’s income.", "39. Under paragraph 1, point 1, of the Additional Provisions of the FACA, as worded at the relevant time, a family comprised spouses or unmarried parents who lived in the same household or single parents and minor children, as well as children over 18 years of age, but no older than 20, who were still in secondary education. “Children” included those who had been born into the family, those who had been recognised by their parents, those who had been adopted, and stepchildren, but did not include children who had married.", "40. Under paragraph 1, point 9, of the Additional Provisions of the FACA, which was first introduced in 2012, “a child with only one living parent” is a minor, or under 20 years of age and in secondary education, one of whose parents (including adoptive parents) has died and who is being cared for by the other parent (including an adoptive parent), on condition that the latter has not remarried.", "41. Section 17(3), points 13 and 14, of the Regulations for the implementation of the FACA provided at the material time that monthly allowances for families with children in secondary school who were no older than 20 and who had only one living parent, were payable upon submission of a request ( молба-декларация ) to that effect, to which had to be attached an heirs certificate and a family-status certificate.", "42. Under section 17(3), point 1, monthly allowances for children living in low-income families were paid upon submission of a certificate showing the family’s income during the previous twelve months.", "The 2013 Constitutional Court’s decision", "43. In its decision no. 3 of 27 June 2013, the CC rejected the Ombudsperson’s request to declare section 7(9) of the FACA (see paragraph 37 above) unconstitutional in so far as it used the word “living”. The Ombudsperson had submitted that when the legislature had introduced a privilege for a certain group of people, namely children with only one living parent, by eliminating family income as a criterion for eligibility for a family allowance, that privilege had to cover all children who had only one parent, as they were in an identical position to those in the first group. The CC acknowledged that in a State governed by the rule of law the legislature was required to treat similar cases alike and different cases differently. That was the only way to guarantee equality before the law and justice in society. That said, the existence of significant differences required the legislature to intervene and differentiate the applicable rules in order to achieve equal protection.", "44. The CC went on to note that Article 14 of the Constitution provided that the family enjoyed the protection of the State and Article 47 § 1 of the Constitution required the State to assist parents in the upbringing of their children (see paragraph 35 above). It was beyond doubt that children who only had one living parent were a vulnerable category in need of protection by the State. The question was whether the legislature had breached the principle of equality before the law by introducing a privilege for only one sub-group of parents who were the sole caregivers to their children.", "45. The CC found that there were significant differences within the larger group of single-parent families referred to by the Ombudsperson. Families in which one parent cared for the children following the death of the other parent could hardly be considered identical to families in which the children were being brought up by one parent following the divorce of the parents and the granting of custody rights to one of them. In particular, while divorce put an end to the marriage of the parents, the child continued to have two parents. As a result, the environment in which that child was being reared differed significantly from the environment of a semi-orphaned child. In the former case the child was bound to receive care by both parents, as custody could be modified and, in any event, both parents were responsible for participating in the child’s upbringing.", "46. Similarly, there was a significant difference between the situation of a child being reared by his or her surviving parent and a child being reared by a parent who was not married and caring for the child alone. In the latter case, it was possible for the child’s legal representative to bring an action in the name of the child for establishing the child’s legal ties to the other parent. As a result of such an action, the child would become part of another family, with all the personal and economic consequences that would bring. This in turn was in the best interest of the child as it was of crucial importance for the establishment of his or her legal status.", "47. This was also the purpose behind Article 47 of the Constitution, namely the objective for every child to have his or her origin determined in relation to both parents as an important premise for defining the environment for the child’s care and upbringing. Similarly, Article 7 of the Convention on the Rights of the Child stipulated that every child had the right to know his or her parents. A parent’s death automatically terminated the relationship between that parent and the child and undeniably affected his or her emotional and psychological state. Both the family and the child underwent a drastic change as a result of circumstances beyond their control and, in such situations, the State stepped in in order to provide assistance towards the care of the semi-orphan child. The introduction of a different regime of social protection in respect of these two categories was justified in order to ensure equal protection to children cared for by only one living parent.", "48. At their very origin, allowances for families with children were intended for families affected by factors over which they had no control, yet which had permanent negative effects on the psychological state of the family members. It was impossible to treat similarly different members of a very broad group without accounting for the reasons for which children were being reared by a single parent. If the word “living” were to be eliminated from the legal provision in question, this would lead to an unjust result, given that the same legal regime would apply to a diverse group of cases. That in turn would mean treating similarly different cases which would lead to a breach of the principle of equality before the law.", "49. The purpose of the privilege introduced by section 7(9) of the FACA was to differentiate a specific subset of cases from the broader group within which it fell. Extending the privilege to the broader constituents of the group would lead to the two constituent groups swapping places. If the privilege were to be applied to the whole broad group of cases of single ‑ parent families, this would lead to the opposite of the intended outcome, namely to a limitation of the rights of the people in the specific subset of cases.", "50. The reasons at the origin of the privilege introduced by the FACA fell outside of the characteristics, exhaustively enumerated in the Constitution, on the basis of which it was unacceptable to limit rights or grant privileges. There was no obstacle for the legislature to introduce additional characteristics, on the basis of which certain groups of people would benefit from a privilege, as long as it did not lead to a breach of the requirement in Article 6 of the Constitution (see paragraph 32 above). In other words, privileges could not be discriminatory. This in turn meant that the difference in treatment provided in this particular case was justified by the differences observed within the broader group of single-parent families.", "51. Article 3 of the Convention on the Rights of the Child provided that States were obliged to ensure that children in a family benefited from the care and protection necessary for their well-being, taking into account the rights and obligations of their own parents or other caregivers, including by means of all necessary administrative and legal measures. It was precisely to provide for the best interests of the child that the legislature had introduced section 7(9) of the FACA, given that it provided the requisite care for children one of whose parents had died.", "The Regulations for the implementation of the Social Assistance Act", "52. Paragraph 1, point 3, of the Additional Provisions of the Regulations for the implementation of the Social Assistance Act provides that a “single parent” is a person who, as a result of widowhood, divorce or lack of civil marriage, has the sole care of children younger than 18, or up to 20 years of age if they are still enrolled in secondary education.", "The Family CodeAcknowledging paternity of a child", "Acknowledging paternity of a child", "Acknowledging paternity of a child", "53. Under Article 65 § 1 of the Family Code, a father can acknowledge paternity of a child by means of a declaration made in writing and in person before a civil-status officer, or a declaration certified by a notary and deposited with the civil-status officer.", "Action for establishing paternity", "54. Under Article 69 of the Family Code, an action for establishing paternity can be brought in court against the father by the child’s mother within three years of the birth and by the child himself or herself no later than three years after reaching majority. Under Article 129 of the Family Code, any parent can represent his or her minor child. In an interpretative ruling (no. 5/78 of 21 February 1979), the Plenary of the then Supreme Court clarified that, under the law (the provision in force at the time was identical to Article 69 of the Family Code currently in force), a child could bring a claim for the establishment of paternity even before he or she reached majority. This could be done by the child’s mother, acting as the legal representative of the child and exercising the child’s right to bring such a claim.", "The Protection Against Discrimination Act", "55. Under section 68 of the Act, the decisions of the Commissions for the Protection against Discrimination are subject to judicial review within fourteen days of the interested parties being notified of them.", "Relevant international materialEuropean Social Charter (Revised)", "European Social Charter (Revised)", "European Social Charter (Revised)", "56. Article 16 of the revised European Social Charter (“the Charter”), in force in respect of Bulgaria since 1 August 2000, reads as follows:", "The right of the family to social, legal and economic protection", "“With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family allowances, fiscal arrangements, provision of family housing, family allowances for the newly married and other appropriate means.”", "57. According to the interpretation given by the European Committee of Social Rights to the provisions of the Charter, compiled in its Digest of 2018, the protection afforded in Article 16 of the Charter covers single-parent families. The scope of Article 16 is, in any case, not restricted to families based on marriage. States Parties enjoy discretion to choose the means in their endeavour to ensure the social, legal and economic protection of the various types of families that can be found in the population. States Parties are required to ensure the protection of vulnerable families, single-parent families and Roma families, in accordance with the principle of equality of treatment.", "58. Article E of the Charter provides as follows:", "Non-discrimination", "“The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”", "59. In its decision on a collective complaint (see International Association Autism-Europe v. France, Complaint No. 13/2002, decision on the merits of 4 November 2003, § 52), the European Committee of Social Rights observed that the wording of Article E was almost identical to the wording of Article 14 of the Convention. The Committee held that Article E not only prohibited direct discrimination but also all forms of indirect discrimination, and that such indirect discrimination might arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all. In the same decision the Committee further considered that the insertion of Article E into a separate Article in the Revised Charter indicated the heightened importance the drafters paid to the principle of non-discrimination with respect to the achievement of the various substantive rights contained therein. It held that its function was to help secure the equal effective enjoyment of all the rights concerned regardless of difference (ibid., § 51).", "The Convention on the Rights of the Child", "60. Article 3 of the United Nations Convention on the Rights of the Child, signed in New York on 20 November 1989 and in force in respect of Bulgaria since 3 July 1991, reads as follows:", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”", "International Covenant on Civil and Political Rights (“the ICCPR”)", "61. Article 23 of the ICCPR reads as follows:", "“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.", "2. The right of men and women of marriageable age to marry and to found a family shall be recognized.", "3. No marriage shall be entered into without the free and full consent of the intending spouses.", "4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”", "International Covenant on Economic, Social and Cultural Rights (“the ICESCR”)", "62. Article 9 of the ICESCR reads as follows:", "“The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.”", "THE LAW", "JOINDER OF THE APPLICATIONS", "63. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rule of Court).", "ALLEGED VIOLATION OF ARTICLES 8 and 14 OF THE CONVENTION", "64. The applicants complained that by requiring that they, as single mothers, establish paternity of their children and provide a death certificate in respect of the children’s fathers as a condition for receiving a family allowance payable monthly to families with “children with only one living parent”, the authorities had breached their right to respect for their private and family life, protected by Article 8 of the Convention. Furthermore, by interpreting the phrase “children with only one living parent” as meaning solely “children with one deceased parent”, the authorities had breached the applicants’ right not to be discriminated against, as they had failed to recognise that the category of families with “children with only one living parent” included that of families with “children one of whose parents was unknown”. They relied in this respect on Article 14 of the Convention taken in conjunction with Article 8.", "65. The relevant Convention provisions provide as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Scope of the case", "66. Since the alleged discriminatory treatment of the applicants lies at the heart of their complaint, having regard to the circumstances of the present case, and bearing in mind that it is master of the characterisation to be given in law to the facts of a complaint (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018 ), the Court considers it appropriate to examine the applicants’ grievances only from the standpoint of Article 14 of the Convention taken in conjunction with Article 8.", "AdmissibilityAs regards application no. 43863/15", "As regards application no. 43863/15", "As regards application no. 43863/15", "67. The Government submitted that the second applicant had failed to exhaust domestic remedies by omitting to seek to be granted the allowance in question, as well as by failing to appeal against the judgment of the Sofia City Administrative Court. Alternatively, she had failed to comply with the six-month time-limit, as she had lodged her application with the Court more than seven months after the last domestic decision in her case had become final.", "68. The second applicant stated that, if there were several possible remedies open to her, she was only expected to have tried one of them. Moreover, she had relied on the Commission to appeal against the judgment of the first-instance court in the discrimination proceedings which she had initially brought. The Commission had not explained its unusual lack of initiative and the second applicant considered that she should not be penalised for this.", "69. The Court considers it unnecessary to determine whether the second applicant exhausted domestic remedies as, in any event, it finds that her application is inadmissible for failure to observe the six-month time-limit. The Court notes in that connection that the second applicant was notified of the first-instance court’s judgment, which quashed the Commission’s decision and after which there were no further procedural developments at the national level, on 22 December 2014, and it became final on 20 January 2015 as no appeal had been lodged against it (see paragraph 30 above). It thus became the final domestic decision in her case. The second applicant was apparently told in April 2015 that the Commission had not appealed against the judgment (see paragraph 31 above). However, she only applied to the Court on 28 August 2015 which was more than six months after the judgment becoming final on 20 January 2015.", "70. It follows that application no. 43863/15 was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.", "As regards application no. 18592/15", "(a) Compatibility ratione materiae", "71. The Court has consistently held that Article 14 has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by the other substantive provisions of the Convention and its Protocols. For Article 14 to be applicable, it is enough for the facts of the case to fall within the ambit of one or more of those provisions; moreover, the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000 ‑ IV, and E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008).", "72. Admittedly, Article 8 does not include a right to family allowances or impose any positive obligation on States to provide such allowances. That said, the Court has held that parental leave and related allowances promote family life (see Topčić-Rosenberg v. Croatia, no. 19391/11, §§ 37 ‑ 38, 14 November 2013, with further references). Also, by granting child benefits, States are able to “demonstrate their respect for family life” within the meaning of Article 8 of the Convention (see Niedzwiecki v. Germany, no. 58453/00, § 31, 25 October 2005). Thus, parental allowances and child benefits come within the scope of Article 8 (see Konstantin Markin v. Russia [GC], no. 30078/06, § 130, ECHR 2012 (extracts); Petrovic v. Austria, 27 March 1998, §§ 26-29, Reports of Judgments and Decisions 1998 ‑ II; Di Trizio v. Switzerland, no. 7186/09, §§ 60-62, 2 February 2016; Okpisz v. Germany, no. 59140/00, § 32, 25 October 2005; and Fawsie v. Greece, no. 40080/07, § 28, 28 October 2010; see also Weller v. Hungary, no. 44399/05, § 29, 31 March 2009, in the context of a maternity benefit). The Court sees no reason to depart from those conclusions in the present case, which concerns the allowance for the first applicant’s minor children provided for by section 7(9) of the FACA (see paragraph 37 above). Accordingly, if a State does decide to create a parental leave scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see, similarly, Petrovic, §§ 26-29, and Konstantin Markin, §130, both cited above).", "73. It follows that Article 14, taken together with Article 8, is applicable.", "(b) No significant disadvantage", "(i) The parties’ submissions", "74. The Government submitted that the application had to be dismissed in accordance with Article 35 § 3 (b), as the first applicant had not suffered a significant disadvantage.", "75. More specifically, had she succeeded with her claim at the national level, she would have been receiving 43.50 euros (EUR) per month for both children together. Given that she had been insuring herself at the national level for what was at the time the highest insurable monthly income of EUR 1,100, her interest in receiving EUR 43.50 a month was negligible. In addition to the minimal personal interest of the applicant, the question did not concern a structural issue and her case had been duly considered by several domestic tribunals.", "76. The first applicant disagreed. She pointed out that, as the problem she had raised was equally valid in respect of all children who were excluded from the system of the said family allowance because their paternity had not been established, the issue effectively concerned a structural problem. Furthermore, it was unacceptable for the State, which was responsible for the petty amounts paid in family allowances, to use the argument of “insignificant disadvantage” on the basis of those amounts being negligible.", "77. In any event, given the age of her children at the time she had lodged the request for the allowance, her family would have been entitled to receive EUR 522 per year for the two children together for a duration of eight years (until the elder child reached majority). Thereafter, the family would have been entitled to receive a further EUR 681.12 for three years in respect of the younger child before he reached majority. All in all, the family would thus have received EUR 4,857.12 under the allowance in question, even if the applicable rates were not increased over the years.", "(ii) The Court’s assessment", "78. The Court reiterates that, as pointed out in its previous case-law (see Mura v. Poland (dec.), no. 42442/08, § 20, 2 June 2016, and C.P. v. the United Kingdom (dec.), no. 300/11, § 41, 6 September 2016 ), the purpose of the admissibility rule in Article 35 § 3 (b) is to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level.", "79. The question whether the applicant has suffered any “significant disadvantage” represents the main element of the rule. Inspired by the general principle de minimis non curat praetor, this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. However, the applicant’s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, inter alia, C.P. v. the United Kingdom, cited above, § 42, with further references).", "80. There are two further criteria under Article 35 § 3 (b). The second compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency ( ibid., § 49 ). Finally, the third criterion does not allow the rejection of an application if the case has not been “duly considered by a domestic tribunal” (ibid., § 51).", "81. Turning to the instant case, the Court observes that the core of the first applicant’s complaint concerns the exclusion of children with unknown fathers from the allowance provided for by section 7(9) of the FACA, and the ensuing discrimination allegedly suffered by those children’s families vis-à-vis the families with a deceased parent. The domestic proceedings which the applicant brought did not result in her achieving her objective of determining that her family should not have been excluded from that State benefit (contrast C.P. v. United Kingdom, cited above, § 46). Likewise, it cannot be said that the resulting exclusion did not bring about any actual prejudice to her family, given that it was deprived altogether of the said assistance from the State. Quite apart from the purely financial value of that assistance, the complaint is that the authorities’ actions culminated in the applicant being made ineligible for receiving it and in her children, whose father was unknown, being placed in a less favourable position than children who had only one living parent as a consequence of the second one having died.", "82. The complaint thus raises an important question both in terms of the subjective perception of the applicant and as regards what is objectively at stake. Consequently, the issue cannot be reduced, as the Government suggested, to a mere monetary comparison between the applicant’s family’s income and the financial benefit of her receiving the allowance in question. The Court finds that it cannot be said therefore that the first applicant did not suffer a significant disadvantage as a result of the refusal to grant her the allowance a stake.", "83. This conclusion would be sufficient to reject the Government’s preliminary objection of lack of significant disadvantage. However, the Court also notes the following as regards the second element of the test, namely the necessity to hear the case if respect for human rights so requires (see paragraph 80 above). The authorities’ decisions – to require the establishment of the identity of the father in order to be eligible to receive an allowance – have broader repercussions for the right to freedom from discrimination and the right to private life for individuals who, like the first applicant, have the sole charge of their family’s care by virtue of the father being unknown, as well as for their children. The Court thus finds that the question raised by this application is one of a general character affecting the observance of the Convention. It considers that it may therefore be necessary for it to clarify the State’s obligations, in particular under Articles 14 and 8 of the Convention. The Court also needs to assess whether the resulting situation is one of a structural nature which would in turn require the State to act in order to resolve it.", "84. Finally, as regards the third criterion, namely the requirement that the case be duly considered by a domestic tribunal, the Court notes that the applicant’s legal challenge to the administrative refusal to grant her the benefit was effectively examined at two levels of jurisdiction which considered in substance the same subject matter of the complaint as that raised in the present application.", "85. The Court finds that owing to the absence in the present case of two of the three stated criteria for inadmissibility, the Government’s objection of lack of significant disadvantage should be dismissed.", "(c) Other grounds of inadmissibility", "86. The Court notes that application no. 18592/15 is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The first applicant", "87. The applicant submitted that the State had breached her right to private and family life by imposing a duty on her, as a single parent, to establish paternity of her children in order for the children to be treated in a non-discriminatory manner and her family not to be excluded from the system of family allowances. Given that the Constitution provided that children born out of wedlock enjoyed equal rights with those born within it, and that mothers enjoyed special protection, the above-described requirement was disproportionate and in breach of the applicant’s right to private and family life and freedom from discrimination. The legal definition of “children with only one living parent” (see paragraph 40 above) implied that only children with established origin from both parents were considered eligible for the allowance under section 7(9) of the FACA, provided that one of the parents had passed away. This definition excluded from the outset and discriminated against families of children with non-established paternity.", "88. To the extent that the State had introduced an allowance for children with only one living parent, regardless of the financial situation of the family, it was unjust to exclude from eligibility for it children in families with only one parent by reason of the second one being unknown. Any internal differentiation with regard to the mental state of the child (whether he or she had suffered from the death, and so on) was irrelevant.", "89. It was all the more unjustified to make it a precondition for children’s inclusion in the allowance system that their mother bring a legal action against their father to establish paternity. In order to be admissible under Bulgarian law, such an action could only be brought within three years of the birth of the child (see paragraph 54 above) and, at the time when the applicant’s request for the allowance had been refused, this limitation period had expired.", "90. The central element of importance for determining whether the situation of children one of whose parents had died was similar or different to children whose father had not recognised them lay in the reality of the family situation and in the range of care actually received. The authorities’ actions in the applicant’s case had led to a situation whereby her children, who had not been recognised by their father, could achieve non-discriminatory treatment only if beforehand the applicant had allowed a disproportionate interference in her private and family life to take place.", "(b) The Government", "91. The Government recognised that the first applicant and her children represented a family both within the meaning of the Convention and of the national legislation (on the last point, see paragraph 39 above).", "92. The introduction of the allowance in section 7(9) of the FACA had been aimed at implementing the State’s policy of protecting families and children, as required under the Constitution. The State had a margin of appreciation in respect of the specific vulnerable groups of the population to which it extended its support and protection. This benefit provided, in particular, necessary assistance for the vulnerable group of children one of whose parents had died. The allowance was also available to families with disabled children and to foster families, and families of children’s relatives who cared for them instead of their own parents (see paragraph 38 above). The legislature’s logic had been that the allowance, even if negligible in its financial aspect, was aimed at compensating to a certain extent the emotional trauma experienced by children as a result of the loss of a parent, or because of a physical disability, or of the impossibility of living with their own mother and father.", "93. Introducing a benefit irrespective of the family’s income for families of children with unknown fathers would, in the words of the Government, result in unequitable treatment of other groups of children being raised by one parent.", "94. There was no difference in law in the treatment of children, irrespective of whether they had been born in or outside of marriage and whether their fathers had recognised them or not. In order to be eligible for the benefit in question, it was sufficient for the child to have had two parents, one of whom had died. In all other cases of single-parent families, the law provided for different ways of establishing and restoring the child’s relationship with the second parent, which included the bringing of an action in court to establish paternity of the child. However, bringing such an action was the mother’s prerogative and she could decide whether and when to exercise it. There was no general obligation under Bulgarian law, or practice, for mothers to have to establish paternity of their children.", "95. There could be many and diverse reasons why paternity had not been established in the instant case, including some of a profoundly intimate character. The applicant had taken a conscious decision to be a single mother and her situation was not due to objective reasons beyond her control.", "96. There was a significant difference between the situation of a semi-orphaned child and a child who lived with only one of his or her parents because they had not married or following a divorce. In the latter case, the child continued to have two parents and was consequently bound to receive care from both parents, as custody could be modified and, in any event, both parents were responsible for participating in the child’s upbringing. Conversely, the connection of the semi-orphaned child with the deceased parent had been irreversibly severed.", "97. Bulgarian law provided a number of possible options to women in the exercise of their reproductive rights. These included assisted insemination and unrestricted access to abortion in cases of unwanted pregnancy. Also, a number of provisions in different pieces of Bulgarian legislation entitled single-parent families, including mothers of children whose fathers were unknown, to receive financial assistance, on condition that their income was under a certain threshold.", "98. The Government also pointed out that, generally speaking, the most common reason for a father not to recognise a child was his unwillingness to do so. This applied particularly in situations where the fathers actually lived with the family without having legally recognised the children. They suggested that it was a regular practice of certain ethnic and social communities in Bulgaria to “pretend” that the mother was a single parent so as to more easily obtain State benefits. This particular practice explained the high number of unrecognised children in the statistics (see paragraph 25 above).", "99. Finally, if the State were to provide financial assistance to all children in the country whose fathers were unknown, which was between 14% and 18% of all children born, this would represent a disproportionate burden on the State budget. If the State were to be found in violation of the prohibition of discrimination as a result of not treating families with unknown fathers as equal to families with a deceased parent, the State would in all likelihood be forced to do away with the allowance altogether, given that the burden on the budget would be excessive.", "The Court’s assessment", "(a) General principles", "100. According to the Court’s settled case-law, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous situation does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017, with further references). Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Konstantin Markin, cited above, § 125).", "101. Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to observance of the Convention’s requirements rests with the Court (see Kurić and Others v. Slovenia [GC], no. 26828/06, § 387, ECHR 2012 (extracts)). A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006-VI). The Court has stressed in the context of Article 14 in conjunction with Article 1 Protocol 1 that, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, cited above, § 115, with further references). Thus, even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in that context the Court has limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see J.D. and A v. the United Kingdom, nos. 32949/17 and 34614/17, § 88, 24 October 2019, with further references).", "102. The Court has also considered that as the advancement of gender equality is today a major goal in the member States of the Council of Europe, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin, cited above, § 127). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex ( ibidem ). The Court has also noted that common ground between the member States of the Council of Europe regarding the importance of equal treatment of children born within and children born outside marriage has been established for a long time, which has, moreover, led to a uniform approach today by the national legislatures on the subject – the principle of equality eliminating the very concepts of legitimate children and children born outside marriage – and to social and legal developments definitively endorsing the objective of achieving equality between children (see Fabris v. France [GC], no. 16574/08, § 58, ECHR 2013 (extracts), and Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31; see also the 1975 European Convention on the Legal Status of Children Born out of Wedlock). Accordingly, very weighty reasons have to be advanced before a distinction on grounds of birth outside marriage can be regarded as compatible with the Convention ( ibidem; see also Genovese v. Malta, no. 53124/09, § 44, 11 October 2011 ).", "103. The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Biao v. Denmark [GC], no. 38590/10, § 90, 24 May 2016, and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94).", "104. Article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or personal characteristic, or “status”, by which individuals or groups are distinguishable from one another. The words “other status” have generally been given a wide meaning, and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Carson and Others, cited above, § 70, and Clift v. the United Kingdom, no. 7205/07, §§ 56-58, 13 July 2010).", "105. As concerns the burden of proof in relation to Article 14 of the Convention, once the applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see Biao, cited above, § 92).", "(b) Application of these principles to the present case", "(i) Whether the applicant was in a relevantly similar or analogous situation to that of surviving parents whose children had been legally recognised by the deceased parent", "106. The Court must consider whether the applicant, a single mother whose minor children have not been recognised by their father, is in an analogous situation to the groups who were entitled to the benefit irrespective of income under section 7(9) of the FACA, namely single parents of children whose legal ties to both of their parents had been established before the other parent’s death. Those groups comprised fathers of children whose mothers had died; widows whose children were born in wedlock; and single mothers whose children’s fathers had recognised them before dying.", "107. The Court has already found that, in so far as parental leave allowances are concerned, men and women are in an analogous situation (see Konstantin Markin, cited above, § 132). As regards family allowances which are meant to support families with children with one surviving parent, the Court finds no reason to hold otherwise. Men and women are likewise “similarly placed” in terms of their role as sole carers for their children.", "108. The Court must also decide whether single mothers of children of unknown fathers (like the first applicant) are in a relevantly similar situation to surviving mothers who are widows or whose children’s fathers have legally recognised them. In carrying out this analysis, the Court must have regard to the particular nature of the complaint (see Fábián, cited above, § 113), which in the present case concerns a claim for monthly allowances under section 7(9) of the FACA. The Court notes that, as advanced by the Government, the primary aim of the introduction of the benefit in question was the implementation of the policy of protecting families and children as enshrined in the Constitution (see paragraph 92 above). While the Government also suggested that the allowance was aimed at compensating for the suffering resulting from the death of a parent, this does not seem to be the main rationale of the legislative scheme. The Court observes that the relevant domestic legislation, namely section 7 of the FACA, was geared towards providing ongoing support to children growing up in a disadvantaged family situation more generally (see paragraphs 36-40 above). Taking into account the basic characteristics of the scheme in issue, namely providing ongoing monthly support for families with children, who for a variety of reasons are in a vulnerable position (see also paragraph 119 below), and the role of the groups of mothers described above in acting as the sole carer for their children, the Court is of the view that those groups are in a “a relevantly similar situation”.", "(ii) Whether there was a difference in treatment", "109. The Court observes that the first applicant was refused the monthly allowance under section 7(9) of the FACA as she could not produce documents certifying that the father had died and the children were his legal heirs. The Court also notes that the other groups discussed in the previous two paragraphs could claim the allowance, being in a position to produce those documents as their children had established legal ties to both parents. Consequently, there was a difference in treatment between the applicant’s family and the other groups of families discussed above.", "(iii) Whether the difference in treatment was based on a ‘status’ envisaged under Article 14", "110. The Court further observes that the first applicant was treated differently on the following two grounds.", "111. The first one is in relation to her sex, given that, as maternity is determined by the act of birth, in the vast majority of cases it is only children’s paternity that can be unknown. The applicant, as a mother of a child with an unknown father, could not provide the required documents under the law, while a single father whose children’s mother had died would normally be able to do so.", "112. The second ground for the difference in treatment is the applicant’s family status. The applicant was treated differently on account of being a single mother, with the identity of the fathers of her children not being established. This was the result of the language of section 7(9) of the FACA as regards families with “only one living parent”, interpreted as corresponding to families with “one surviving parent”, and of the requirement for one of the parents in the family to have died (see paragraph 40 above), an interpretation confirmed and clarified by the Constitutional Court in 2013 (see paragraphs 44-51 above).", "113. The Court notes that, as a result of the application of this law, the first applicant’s family was excluded, on the basis of her family status, from receiving the monthly allowances. In particular, her family could not satisfy the relevant requirements for receiving the benefits, as her children did not have their legal ties to both parents established.", "(iv) Whether the difference in treatment was objectively justified", "114. It remains to be ascertained whether, in relation to the family benefit in question, the difference in treatment of parents depending on their sex and on their family status pursued a legitimate aim and was objectively and reasonably justified under Article 14 of the Convention.", "115. The Court observes firstly that the applicable law, namely section 7(9) of the FACA, provides that the benefit is payable only to the families of children with two legally established parents, one of whom has died. Thus, it is the law itself which differentiates between that category of families and families with only one known parent, like that of the first applicant. In the Court’s view, the legal provision in question, as confirmed by the Constitutional Court’s interpretation, is based on a very traditional and outdated understanding of a family, in particular as regards the expectation that there must be two parents with whom the children have established legal ties (see paragraphs 46 and 47 above). The Court has held that very weighty reasons would have to be advanced before a difference in treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention (see, among other authorities, Genovese, cited above, § 44, 11 October 2011, where the applicant had been born out of wedlock, although subsequently to his birth he had had his legal ties to both parents established). In another case examined by the Court, namely Camp and Bourimi v. the Netherlands (no. 28369/95, § 38, ECHR 2000 ‑ X), the applicant’s ties with his father were not legally recognised and, as a result, he was treated differently (less favourably) not only in comparison with children born in wedlock but also in comparison with children who, although born out of wedlock, had been recognised by their father. The Court held in Camp and Bourimi that similarly weighty reasons were required for this latter difference in treatment to be compatible with the Convention ( ibidem ).", "116. The Government’s submissions that it would have been sufficient for the first applicant to demonstrate that her children had had two parents and that one of them had died for her to receive the allowance (as they pointed out in paragraph 94 above) only confirm this stereotypical understanding of families as necessarily having two legal parents. The Court reiterates that stereotypes of this nature, requiring legally established ties to both parents in a family, cannot be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, sex, colour or sexual orientation (see, in relation to the perception of women as primary child-carers and men as primary breadwinners, Konstantin Markin, cited above, § 143; see also, mutatis mutandis, Genovese, cited above, § 44, and Camp and Bourimi, cited above, § 38).", "117. The Court agrees with the Government’s point that the considerations on the basis of which the first applicant may not be willing to disclose the identity of her children’s father, and/or seek legal recognition through the courts in order to satisfy the requirements of section 7(9) of the FACA, may be numerous and that they are in any event strongly personal in nature (see paragraph 95 above). Contrary to the position of the Government, however, the Court does not consider that the applicant should be required to undertake steps – such as either asking the father to recognise the children (see paragraph 53 above) or instituting court proceedings seeking to establish paternity (see paragraph 54 above) if the father was known to her – as a precondition for equal treatment of her family to that of families with children who have had their legal ties to both parents established and one of whose parents has died. Accepting this would equate to a prior interference in her private and family life in order for her family to receive equal treatment. Consequently, making receipt of the allowance conditional on the applicant’s disclosure of intimate information, and/or taking legal steps through the courts to establish the children’s paternity – all of which fall squarely in the sphere of her private life and which she does not wish to do – amounts to making the full exercise of her right to respect for her family life conditional upon her relinquishing the exercise of her right to respect for her social and personal identity and psychological integrity, all of which are protected under Article 8 of the Convention (compare, mutatis mutandis, A.P., Garçon and Nicot v. France, nos. 79885/12 and 2 others, § 131, 6 April 2017; see also Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017 as regards the content of Article 8). The existence of such a requirement can therefore hardly be considered objectively justified.", "118. As to the justification focused entirely on the loss of a parent (see the Government’s argument summarised in paragraph 92 in fine above), the Court notes that children whose father is unknown cannot as a rule be said to be in a better position than children with one deceased parent, without accounting for a whole range of surrounding and relevant other circumstances which inevitably vary greatly from case to case. Similarly, it cannot be said that such children require less care and protection. They may arguably be in an even worse position, given that, unlike children with established paternity, they could not be their father’s legal heirs. In objective terms, they are deprived of the care and protection of one of their parents in the same way as children one of whose parents has died.", "119. In the process of explaining the aim of the allowance under section 7(9) of the FACA, the Government also pointed out that a family allowance irrespective of the family’s income was provided under different provisions of the law also to families of children with disabilities, and to families of children who are cared for in their relatives’ families or in foster families (see paragraphs 38 and 92 above). The underlying common reason for that, according to the Government, was the emotional trauma provoked by circumstances other than the death of a parent, and the legislature’s aim was to compensate, at least to a certain extent, those particularly vulnerable categories of children. The Court finds that the present applicant’s family situation, which, according to her, was characterised by the absolute absence of a father, cannot as a rule be considered advantageous to the children in her family. The arguments advanced by the Government to justify the exclusion of her family from receiving the benefit are therefore not consistent or convincing and, as a result, they cannot be taken to provide either reasonable or objective justification for that exclusion.", "120. As to the argument that, if families of children with unknown fathers were made eligible for the monthly allowance in question, this would result in unequitable treatment of other groups of children being raised by one parent (see paragraph 93 above), the Court emphasises that the Government did not elaborate upon and specify which groups they meant, and the Court’s task is limited to the examination of the particular facts presented before it.", "121. To the extent that it may be inferred from the Government’s observations that the requirement to establish the identity of the father served to protect the State against fraud (see paragraph 98 above), the Court finds that the Government have not, at any point, argued that the applicant herself was attempting, or aiming, to defraud the State by claiming the allowance in question. Rather, the Government suggested that this was a regular practice of certain ethnic and social communities in Bulgaria aimed at claiming State benefits for which they would not otherwise be eligible. However, the Government failed to provide any evidence, statistical or other, in support of their claims of such widespread fraud and how the impugned policy was aimed at protecting against such fraud (see paragraph 25 above). It is difficult to accept the argument advanced by the Government that the total number of unrecognised children reflects in itself a fraudulent practice and that the impugned legislation was therefore justified in terms of protecting against such fraud. Neither have the Government presented evidence that other, more standard measures directed towards preventing fraudulent claims have been ineffective. The Court emphasises in this connection that there are different legal and policy means for successfully combatting fraud and, in any event, the argument of prevention of fraud is not relevant to the applicant’s personal situation.", "122. The Government further emphasised that including the category to which the applicant belongs in the benefit plan would result in an excessively high cost to the State, for which it lacked resources. They also submitted that, if the Court were to find a violation of the prohibition of discrimination in respect of the applicant, the State would likely be forced to do away with the benefit altogether, because of the excessive financial burden it would face (see paragraph 99 above).", "123. Indeed, States are usually allowed a wide margin of appreciation when it comes to general measures of economic or social strategy (see, among others, Ponomaryovi v. Bulgaria, no. 5335/05, § 52, ECHR 2011 and the case-law quoted in paragraph 101 above) and the resources which the authorities may devote to family benefits are inevitably limited. Moreover, widely different systems for social benefits exist in the States Parties to the Convention. However, the lack of a common standard does not absolve those States which adopt family allowance schemes from the obligation to grant such benefits without discrimination (compare, mutatis mutandis, Weller, cited above, § 34; see also the case-law quoted in paragraph 101 above). Even a wide margin of appreciation in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination (see J.D. and A v. the United Kingdom, cited above, § 88). Thus, even bearing in mind the wide margin of appreciation available to the State in matters of social and economic policies, the Court considers that the argument that making the applicant’s category eligible for the benefit is unacceptable because it would result in the authorities having to pay more than they currently do, is not in itself sufficient for justifying such a difference in treatment.", "124. Finally, while it is not for the Court to engage with the policy dimension of a potential measure of doing away with the benefit altogether, which the Government have warned may be necessary, this cannot prevent it from dealing with the essence of the complaint before it, under Article 14 of the Convention in conjunction with Article 8, in view of the fundamental importance of the prohibition of discrimination and the right to respect for one’s family life.", "125. On the basis of the above, the Court concludes that surviving parents of children legally recognised by the deceased parent had an entitlement to the family benefit irrespective of the family’s income. By contrast, the applicant, a single mother of children with an unknown father did not. The Government neither alleged nor produced evidence to show that the unknown father of the applicant’s two children had been in effect providing care or support to the children, or had been in any way actually involved in their life. While the Court does not exclude the possibility that the situation may be different in other circumstances of single parents of children with legally unestablished ties to both parents, where officially unknown fathers would in reality support their children, the Government have not shown, in the particular circumstances of the present case, that there were convincing reasons unrelated to the applicant’s family status or to her sex to offset the discriminatory effect on the applicant’s family of section 7(9) of the FACA. The Court reiterates in particular that very weighty reasons must be put forward before a difference of treatment based on the ground of sex or family status alone can be regarded as compatible with the Convention (see Ünal Tekeli v. Turkey, no. 29865/96, § 53, ECHR 2004 ‑ X (extracts), and, mutatis mutandis, Camp and Bourimi, cited above, § 38). The Court therefore concludes that the difference in treatment, of which the first applicant was a victim, amounted to discrimination on the grounds of both her family status and her sex.", "126. There has therefore been a violation of Article 14 taken in conjunction with Article 8.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "127. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "128. In respect of pecuniary damage, the first applicant claimed EUR 522 per year for both children together (EUR 43,50 x 12 months), from the date of her request of the benefit at the national level (see paragraph 6 above) till the date of the Court’s judgment. She specified that that would represent EUR 2,088 for a four-year period of unpaid family allowance in respect of both children. She also claimed EUR 12,000 in respect of non-pecuniary damage. More specifically, she claimed EUR 3,500 in respect of non-pecuniary damage for each of her two minor children and EUR 5,000 for herself.", "129. The Government submitted that those amounts were unjustified. As regards the claim in respect of pecuniary damage, the applicant was not eligible under the national law for the allowance in question and therefore she could not claim compensation for what was not due to her. As regards the claim in respect of non-pecuniary damage, the claim in respect of the two children was manifestly ill-founded as they were not applicants in the present case. As regards the claim in respect of the first applicant herself, it was excessive.", "130. The Court does not discern any causal link between the violation found and the non-pecuniary damage alleged in respect of the first applicant’s two children; it therefore rejects this claim.", "131. On the other hand, it awards the first applicant EUR 4,500 in respect of non-pecuniary damage and EUR 3,915 in respect of pecuniary damage, the latter for the period between 30 September 2013 and 31 March 2021, plus any tax that may be chargeable.", "Costs and expenses", "132. The first applicant also claimed EUR 2,160 in respect of the costs and expenses incurred before the Court.", "133. The Government submitted that this amount was excessive.", "134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,160 for the proceedings before the Court. This amount is comparable to the fees awarded in respect of applicants’ lawyers in recent cases against Bulgaria of comparable complexity (see, notably, Penchevi v. Bulgaria, no. 77818/12, § 89, 10 February 2015; Bulves AD v. Bulgaria, no. 3991/03, § 85, 22 January 2009, and Mutishev and Others v. Bulgaria, no. 18967/03, § 160, 3 December 2009 ).", "Default interest", "135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "10. The applicants are lawfully and permanently settled in the United Kingdom. In accordance with the immigration rules in force at the material time, Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali were refused permission to remain with or join them in that country as their husbands. The applicants maintained that, on this account, they had been victims of a practice of discrimination on the grounds of sex, race and also, in the case of Mrs. Balkandali, birth, and that there had been violations of Article 3 (art. 3) of the Convention and of Article 8 (art. 8), taken alone or in conjunction with Article 14 (art. 14+8). They further alleged that, contrary to Article 13 (art. 13), no effective domestic remedy existed for the aforesaid claims.", "II. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "A. Mrs. Abdulaziz", "39. Mrs. Nargis Abdulaziz is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Malawi in 1948 and brought up in that country. Her parents were also born there. According to her, she was a citizen of Malawi at birth but, being of Indian origin, was subsequently deprived of that citizenship and is now stateless. She holds a Malawian travel document.", "This applicant went to the United Kingdom on 23 December 1977. She was given leave, as a \"non-patrial\" (see paragraphs 13-15 above), to enter as a visitor, leave which was subsequently extended on three occasions. Since special vouchers had been allocated to members of her family enabling them to settle in the United Kingdom, an application was made on her behalf for indefinite leave to remain. On 16 May 1979 as an act of discretion outside the immigration rules (see paragraph 19 above), she was given such leave, essentially on the ground that she was an unmarried woman with little prospect of marriage who formed part of a close family, including her father and mother, settled in the United Kingdom.", "40. Mr. Ibramobai Abdulaziz is a Portuguese national who was born in Daman, a former Portuguese territory in India, in 1951. He emigrated to Portugal in 1978. On 4 October 1979, he was admitted, as a \"non-patrial\", to the United Kingdom for six months as a visitor. He met the applicant six days later and they became engaged to be married on 27 November. They were married on 8 December 1979 and, during the following week, Mrs. Abdulaziz applied for leave for her husband to remain permanently in the United Kingdom. Shortly afterwards, the Joint Council for the Welfare of Immigrants also applied for leave for him to remain, for a period of twelve months.", "41. After Mr. and Mrs. Abdulaziz had been interviewed at the Home Office on 6 June 1980, her application was refused, on 1 July, on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above).", "Mr. Abdulaziz appealed to an adjudicator (see paragraphs 34-36 above) against this decision but the appeal was dismissed on 6 October 1981 as he did not qualify for leave to remain under the 1980 Rules. The adjudicator pointed out that, had the application been made before 14 November 1979 or the decision taken before 1 March 1980, Mr. Abdulaziz would have been admitted, under the previous rules (see paragraphs 20 and 21 above). Leave to appeal to the Immigration Appeal Tribunal was refused by the Tribunal on 9 December 1981 on the ground that the determination of the appeal did not turn on any arguable point of law and that leave to appeal was not otherwise merited (see paragraph 37 above).", "42. Subsequently Mr. Abdulaziz remained, and still remains, in the United Kingdom, without leave. He is currently employed as a chef in a restaurant; his wife does not work. A son was born to the couple in October 1982. Representations through Members of Parliament to the Home Office have been rejected, basically on the ground that the couple could live together in Portugal and that the circumstances of the case were not such as to warrant exceptional treatment. In a letter of 24 February 1982 to one Member, the Minister of State at the Home Office indicated that the authorities would shortly be advising Mr. Abdulaziz to depart without delay, adding that if he did not, \"consideration will have to be given to enforcing his departure\"; however, a letter of 29 November 1982 to another Member stated that \"[the Minister did] not propose for the time being to take any action regarding [Mr. Abdulaziz's] removal\". In fact, the authorities have not to date instituted any criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Abdulaziz's application (see paragraph 55 below).", "The couple's situation has not until now been changed by the 1982 or the 1983 Rules since Mrs. Abdulaziz, although settled in the United Kingdom, is not a British citizen (see paragraphs 27-32 above). She has, however, applied, on 16 August 1984, for naturalisation as such a citizen, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above).", "43. At the Home Office interview, Mr. Abdulaziz said that his wife could not be expected to live in Portugal because she had always been close to her family and because her sick father - who in fact died in September 1980 - needed her company. Before the Commission and the Court, she claimed that her health was under strain because of her husband's settlement problems and that humanitarian considerations prevented her going to Portugal, a country where she had no family and whose language she did not speak. The Government maintain that there is no obstacle whatever to her going with her husband to live in Portugal.", "B. Mrs. Cabales", "44. Mrs. Arcely Cabales is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in the Philippines in 1939 and was brought up there, and is of Asian origin. She had the nationality of that country until 1984 (see paragraph 47 below). Her parents were born and live in the Philippines.", "This applicant went to the United Kingdom in 1967 with a work permit for employment as a nursing assistant and was admitted, as a \"non-patrial\" (see paragraphs 13-15 above), for twelve months. She remained in approved work thereafter and, on 10 June 1971, the conditions attached to her stay were removed and she was allowed to remain in the United Kingdom indefinitely. She is now employed, and has an established career, as a State-enrolled nurse.", "45. Mr. Ludovico Cabales is a citizen of the Philippines, born in that country in 1937. He met the applicant in Manila in 1977 when she was on holiday and again in 1979 when she was there for one or two months. During the latter period, the couple became engaged. On 23 April 1980, they went through a ceremony of marriage in the Philippines. The applicant returned to the United Kingdom shortly afterwards to take up her job again. In May 1980, she informed the Home Office of the marriage and applied for leave for Mr. Cabales to enter the United Kingdom, a request which she repeated in August. On 27 November, he, being a \"non-patrial\", applied to the British Embassy in Manila for a visa to join his wife for settlement in the United Kingdom.", "46. After Mrs. Cabales had supplied certain further information requested by it, the Home Office wrote to her on 23 February 1981 to advise her that the visa application had been refused on the ground that she was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 50 of the 1980 Rules; see paragraph 23 (a) (ii) above). Notice of the decision was not handed to Mr. Cabales until 12 November 1981 as he had failed to respond to an invitation of March 1981 to attend at the Manila Embassy for that purpose.", "On 20 August 1981, the Joint Council for the Welfare of Immigrants wrote to the Home Office Immigration and Nationality Department, seeking a review of this decision. However, on 13 January 1982, the Department, having considered the circumstances, informed the Council of its decision to maintain the refusal. Mr. Cabales had on 8 December 1981 lodged an appeal with an adjudicator (see paragraphs 34-36 above) against the decision but the appeal was dismissed on 25 July 1983 on the ground that the visa officer's decision was in accordance with the law and the immigration rules. The adjudicator, who noted that Mrs. Cabales had not taken legal advice but had thought at the time of the marriage ceremony that a forthcoming change in the law would allow Mr. Cabales to be admitted, expressed the hope that the authorities would look at the case sympathetically. This was not initially recognised by the authorities as a recommendation, but the Home Secretary subsequently concluded that there were not sufficient grounds for acting outside the immigration rules. There is no record of an application for leave to appeal to the Immigration Appeal Tribunal. Representations to the Home Office were also rejected, basically on the ground that the couple could live together in the Philippines and that there were not sufficient reasons for the Home Secretary to exercise his extra-statutory discretion.", "47. Between April 1980 and December 1984, Mr. Cabales continued to live in the Philippines and the couple were separated, apart from a short period in 1983 when Mrs. Cabales visited that country. However, following an application made by her in November 1982 under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above), Mrs. Cabales obtained naturalisation as a British citizen with effect from 18 April 1984; she thereby lost her Philippine citizenship. On 10 July 1984, Mr. Cabales applied for entry clearance for permanent settlement as the husband of a British citizen, under paragraph 54 of the 1983 Rules (see paragraphs 30-31 above). For the reasons and in the circumstances indicated in the following paragraph, this application was refused on 1 October 1984 but, on the following day, Mr. Cabales applied for and was granted a visa entitling him to enter the United Kingdom for three months for the purposes of marriage. He arrived in that country on 19 December 1984 and the parties were married there on 26 January 1985. On 4 February, he was granted leave to remain as a husband for the next twelve months; on the expiry of that period, he will be eligible to apply for indefinite leave.", "48. In a memorial filed with the Court on 27 July 1984, the Government questioned the validity of the 1980 marriage (see paragraph 45 above). Under Articles 53 and 80 of the Philippine Civil Code, a marriage solemnised without a licence was to be considered void, save in the case of a \"marriage of exceptional character\", that is one between persons who have lived together as husband and wife for at least five years (Article 76). The Cabales marriage contract recited that the ceremony the couple went through in 1980 had been performed, without a licence, under Article 76. The parties had stated in a contemporaneous affidavit that they had previously cohabited for at least five years, but according to Mrs. Cabales'version of the facts this could not be so since she had not met Mr. Cabales until 1977 (see paragraph 45 above). According to the Government, the requirements of Article 76 were therefore not satisfied and the marriage thus had to be considered void.", "At the hearings on 25 September 1984, the applicant's counsel expressed the view that, assuming a defect existed, it was purely formal and the status of Mr. and Mrs. Cabales could be regarded as akin to that of the parties to a common-law marriage. Her representative subsequently filed with the Court details of the advice he had received from Philippine lawyers, to the effect that under the law of that country the marriage was to be presumed valid unless and until it was declared void by a court. The Government replied that they had been advised that the marriage was void ab initio and that no judicial decree was necessary to establish its invalidity. This opinion was contradicted in further advice obtained on behalf of Mrs. Cabales.", "Mr. and Mrs. Cabales were interviewed by the United Kingdom authorities in August and September 1984. They adduced no evidence to alter the Government's conclusion that the marriage was void. However, Mrs. Cabales stated that if Mr. Cabales were admitted to the United Kingdom, the couple would go through a ceremony of marriage in that country. It was in these circumstances that in October 1984 Mr. Cabales was refused leave to settle as a husband but was regarded as eligible, under the 1983 Rules, for leave to enter the United Kingdom temporarily as the fiancé of a British citizen.", "49. Before the Commission and the Court, Mrs. Cabales submitted that there would have been real obstacles to her returning to live in the Philippines : she was too old, her qualifications were not recognised there and, by working in the United Kingdom, she was able to support financially her parents and other members of her family. These claims were contested by the Government, in particular on the ground that it was unrealistic to suppose that her nursing skills could not be put to good use in the Philippines.", "C. Mrs. Balkandali", "50. Mrs. Sohair Balkandali is permanently and lawfully resident in the United Kingdom with the right to remain indefinitely. She was born in Egypt in 1946 or 1948. Her parents were born and live in that country.", "This applicant first went to the United Kingdom in November 1973 and was given leave, as a \"non-patrial\" (see paragraphs 13-15 above), to enter as a visitor for one month. Subsequently, she obtained several further leaves to remain, as a visitor or a student, the last being until August 1976. She has a high level of university education. In 1978, she married a Mr. Corbett, a citizen of the United Kingdom and Colonies, and, five days later, was given indefinite leave to remain in the United Kingdom, by virtue of her marriage, under the provisions then in force. On 26 October 1979, again by virtue of her marriage, she obtained registration as a citizen of the United Kingdom and Colonies under the British Nationality Act 1948, as a result of which she became a \"patrial\" (see paragraphs 11 in fine and 14 (a) above). At that time, she was already separated from Mr. Corbett and the marriage was dissolved in October 1980.", "51. Mr. Bekir Balkandali is a Turkish national born in Turkey on 9 April 1946. In January 1979, he was granted leave, as a \"non-patrial\", to enter the United Kingdom, apparently as a visitor, for one month. Subsequently, he obtained leave to remain as a student until 31 March 1980. His application of 2 April for an extension of this leave was refused on 23 September 1980 because he had not attended his course of studies and the Home Secretary was not satisfied that he was a genuine student who intended to leave the country on their conclusion. Since his application for an extension had been made after his leave had expired, he had no right of appeal under the 1971 Act (see paragraph 35 above); he was advised to leave the United Kingdom and warned of the risk of criminal or deportation proceedings (see paragraph 33 above) if he did not.", "52. Since the autumn of 1979, the applicant had been living with Mr. Balkandali. In April 1980 they had a son, who has the right of abode in the United Kingdom. On 14 October 1980, an application was made by the Joint Council for the Welfare of Immigrants for leave for Mr. Balkandali to remain in the United Kingdom until he married his fiancée, the applicant. They were interviewed together by Home Office officials on 30 March 1981 and produced evidence of their marriage, which had been celebrated in January 1981. The application was therefore treated as one to remain as the husband of a woman settled in the United Kingdom.", "Leave was refused on 14 May 1981 on the ground that Mrs. Balkandali was not a citizen of the United Kingdom and Colonies who, or one of whose parents, had been born in the United Kingdom (paragraph 117 of the 1980 Rules; see paragraph 24 (a) (i) above). There was no right of appeal against this decision as Mr. Balkandali had no current leave to remain at the time when his application was made (see paragraph 35 above). Representations through a Member of Parliament to the Home Office were rejected, basically on the ground that the couple could live together in Turkey and that there were not sufficient compelling compassionate circumstances to warrant exceptional treatment outside the immigration rules. In a letter of 18 December 1981 to the Member, the Minister of State at the Home Office wrote that \"Mr. Balkandali should now make arrangements to leave the United Kingdom forthwith, otherwise arrangements will be made to enforce his departure\"; however, a letter of 3 December 1982 to the Member stated that \"[the Minister did] not propose for the time being to take any action against [Mr. Balkandali]\". In fact, the authorities did not at any time institute criminal or deportation proceedings (see paragraph 33 above) against him; their decision, according to the Government, was taken in the light of all the circumstances, including the Commission's decision on the admissibility of Mrs. Balkandali's application (see paragraph 55 below).", "53. On 20 January 1983, as the husband of a British citizen, Mr. Balkandali was given twelve months'leave to remain in the United Kingdom in accordance with paragraph 126 of the 1982 Rules (see paragraph 28 (a) above); this was possible because, on 1 January 1983, Mrs. Balkandali had automatically acquired British citizenship by virtue of the British Nationality Act 1981 (see paragraph 26 (b) above). Mr. Balkandali subsequently applied for indefinite leave to remain and this was granted on 18 January 1984 under paragraph 177 of the 1983 Rules (see paragraph 31 above). In September 1984, he was working in the catering business and planned shortly to open a restaurant; his wife was working two days a week in a creche.", "54. Before the Commission and the Court, Mrs. Balkandali submitted that there would have been real obstacles to her going with her husband to live in Turkey: she cited her strong ties to the United Kingdom and alleged that as an educated woman and the mother of an illegitimate child she would have been treated as a social outcast in Turkey. The Government maintain that there were no real obstacles." ]

[ "I. DOMESTIC LAW AND PRACTICE", "A. History and background", "11. The evolution of immigration controls in the United Kingdom has to be seen in the light of the history of the British Empire and the corresponding developments in nationality laws. Originally all persons born within or having a specified connection with the United Kingdom or the dominions owed allegiance to the Crown and were British subjects. A common British nationality was, however, difficult to reconcile with the independence of the self-governing countries of the Commonwealth into which the Empire was transformed. As the various territories concerned became independent, they introduced their own citizenship laws but, for the purposes of United Kingdom law, persons having the citizenship of an independent Commonwealth country retained a special status, known as \"British subject\" or \"Commonwealth citizen\" (these terms being synonymous). This status was also held by \"citizens of the United Kingdom and Colonies\". Prior to 1 January 1983, the latter citizenship was, briefly, acquired by birth within the United Kingdom or one of its remaining dependencies, by descent from a father having that citizenship, by naturalisation or by registration (British Nationality Act 1948).", "12. Whereas aliens have been subject to continuing strict immigration controls over a long period, the same is not true of Commonwealth citizens. Until 1962, the latter, irrespective of their local citizenship, all had freedom to enter the United Kingdom for work and permanent residence, without any restriction. A rapid rise in the influx of immigrants, especially in 1960 and 1961, and the consequent danger of the rate of immigration exceeding the country's capacity to absorb them led to a radical change in this situation. The Commonwealth Immigrants Act 1962, and then the Commonwealth Immigrants Act 1968, restricted the right of entry of, and imposed immigration controls on, certain classes of Commonwealth citizens, including citizens of the United Kingdom and Colonies, who did not have close links to Britain.", "B. The Immigration Act 1971", "13. The existing immigration laws were amended and replaced by the Immigration Act 1971 (\"the 1971 Act\"), which came into force on 1 January 1973. One of its main purposes was to assimilate immigration controls over incoming Commonwealth citizens having no close links to Britain to the corresponding rules for aliens. The Act created two new categories of persons for immigration purposes, namely those having the right of abode in the United Kingdom (\"patrials\") and those not having that right (\"non-patrials\").", "14. \"Patrials\" were to be free from immigration controls. The status of \"patrial\" was intended to designate Commonwealth citizens who \"belonged\" to the United Kingdom and, in summary, was conferred (by section 2 of the 1971 Act) on:", "(a) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth, adoption, naturalisation or registration in the British Islands (that is, the United Kingdom, the Channel Islands and the Isle of Man), or were the children or grandchildren of any such persons;", "(b) citizens of the United Kingdom and Colonies who had at any time been settled in the British Islands for at least five years;", "(c) other Commonwealth citizens who were the children of a person having citizenship of the United Kingdom and Colonies by virtue of birth in the British Islands;", "(d) women, being Commonwealth citizens, who were or had been married to a man falling within any of the preceding categories.", "15. Under section 1(2) of the 1971 Act, \"non-patrials\" (whether Commonwealth citizens or aliens) \"may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed\" by the Act.", "Subject to certain exceptions not relevant to the present case, a \"non-patrial\" shall not enter the United Kingdom unless given leave to do so (section 3(1)). He may be given such leave (or, if he is already in the country, leave to remain) either for a limited or for an indefinite period; in the former case, the leave may be subject to conditions restricting employment or requiring registration with the police or both (ibid.). Where limited leave to enter or remain is granted, it may subsequently be varied, either as regards its duration or the conditions attaching thereto but, if the limit on duration is removed, any conditions attached to the leave cease to apply (section 3(3)). The power to give or refuse leave to enter is exercised by immigration officers but the power to give or vary leave to remain can be exercised only by the Home Secretary (section 4(1)).", "C. The Immigration Rules", "16. Under section 3(2) of the 1971 Act, the Home Secretary is obliged from time to time to lay before Parliament statements of the rules, or of any changes therein, laid down by him as to the practice to be followed in the administration of the Act for regulating entry into and stay in the United Kingdom. These rules contain instructions to immigration officers as to how they shall exercise the statutory discretions given to them by the Act and statements of the manner in which the Home Secretary will exercise his own powers of control after entry. The rules are required to provide for the admission of persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom, but uniform provision does not have to be made for these categories and, in particular, account may be taken of citizenship or nationality (sections 1(4) and 3(2)). Thus, different rules can be and are made for nationals of the member States of the European Economic Community under Community law, and Irish citizens are in a special position.", "17. The rules are subject to a negative resolution procedure whereby, if a resolution disapproving the Home Secretary's statement is passed by either House of Parliament within forty days of its being laid, he is required as soon as may be to make such changes as appear to him to be required in the circumstances and to lay the rules as amended before Parliament within forty days of the passing of the resolution (section 3(2)). The statement of rules thus amended is subject to the same procedure as the original statement. Because of the continuous nature of decision-making by immigration officers, the statement originally laid is not abrogated by any negative resolution; it will come into operation when made or on the date therein provided and will remain in force until replaced.", "18. The exact legal status of the rules is of some complexity. This question was considered by the Court of Appeal in R. v. Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All England Law Reports 452, when Lord Denning MR said:", "\"[The Home Secretary's rules] are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the [1971 Act]. They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the courts must have regard to them because there are provisions in the Act itself, particularly in section 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition the courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law.\"", "Lord Justice Geoffrey Lane also doubted whether the rules constituted delegated legislation. He observed: \"These rules are very difficult to categorise or classify. They are in a class of their own. They are certainly a practical guide for ... immigration officers .... Indeed they are, as to large parts, ... little more than explanatory notes of the [1971 Act] itself.\" However, he noted that if Parliament disapproved of the rules, they were not thereby abrogated. Furthermore, at least as far as an adjudicator dealing with appeals was concerned, the rules had the force of law, although it seemed that they could be departed from with the consent of the applicant himself.", "Lord Justice Cumming-Bruce said:", "\"[The rules] are a totally different kind of publication from the rules that usually come into being under the authority delegated to Ministers under Acts of Parliament; ... they are not in my view in any sense of themselves of legislative force. It is true that ... the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal .... But the legal effect that the rules have in that limited field flows not from the fact that they have been published by the Minister and laid before Parliament, but because by section 19(2) of the [1971 Act] the rules are given an effect which is in a certain field clearly legally enforceable, and that is a quite different matter.\"", "19. Notwithstanding that an application for entry clearance (see paragraph 22 (b) below) or leave to enter or remain may fall to be refused under the relevant immigration rules, the Home Secretary has a discretion, deriving from historic prerogative powers, to authorise in exceptional circumstances the grant of entry clearance or of leave to enter, or to allow a person to remain in the United Kingdom. Where the applicant is a husband seeking to join or remain with his wife settled in the United Kingdom, factors which the Home Secretary will consider include the extent of her ties with that country and of the hardship she might suffer by going to live abroad, and any recommendations by the immigration appellate authorities (see paragraphs 34-37 below).", "D. Position at the time of the events giving rise to the present case", "1. Introduction", "20. The rules in force at the time of the events giving rise to the present case were contained in the \"Statement of Changes in Immigration Rules\" (HC 394), laid before Parliament on 20 February 1980 (\"the 1980 Rules\"); they applied to all decisions taken on or after 1 March 1980, except those relating to applications made on or before 14 November 1979. A draft of the rules had previously been included in a White Paper published in November 1979.", "The 1980 Rules, which in paragraph 2 instructed immigration officers to carry out their duties without regard to the race, colour or religion of the intending entrant, detailed firstly the controls to be exercised on the entry into the United Kingdom of \"non-patrials\" and then those to be exercised after entry. The former depended on whether the individual concerned was coming for temporary purposes (for example, visitors or students), for employment or business or as a person of independent means, or for settlement. As under the rules previously in force, visitors were normally to be prohibited from taking employment and persons wishing to come for employment were subject to strict regulations as to work permits. The work-permit requirements, however, did not apply to nationals of other member States of the European Economic Community nor to persons covered by the \"United Kingdom ancestry rule\"; under the latter rule, which had been in force since the 1971 Act came into operation, a Commonwealth citizen having a grandparent born in the British Islands and wishing to take or seek employment in the United Kingdom could obtain indefinite leave to enter even without a work permit. A further exception was to be found in the \"working holiday rule\", whereby young Commonwealth citizens could, without a permit, take employment incidental to an extended holiday being spent in the United Kingdom; however, the period of their stay could, under the 1980 Rules, not exceed two years. All these exceptions have been maintained in subsequent immigration rules.", "21. A particular feature of the changes introduced by the 1980 Rules was the inclusion of a number of provisions directed towards implementing a policy of protecting the domestic labour market at a time of high unemployment by curtailing \"primary immigration\", that is immigration by someone who could be expected to seek full-time work in order to support a family. In taking these measures, the Government were concerned also to advance public tranquillity and, by exercising firm and fair immigration control, to assist in securing good community relations.", "To these ends, among the changes effected was the introduction of stricter conditions for the grant of leave to a \"non-patrial\" husband or fiancé seeking to join or remain with his wife or fiancée settled in the United Kingdom. Previously, any such husband or fiancé would normally have been allowed to settle after a qualifying period, provided that the primary purpose of the marriage was not to obtain settlement in that country. These new measures were not extended to the wives and fiancées of settled men, a fact attributed by the Government to long-standing commitments (based allegedly on humanitarian, social and ethical reasons) to the reunification of the families of male immigrants. Nor did the new measures apply to nationals of other member States of the European Economic Community.", "22. The relevant provisions of the 1980 Rules - and of their successors - are summarised below in terms of the following expressions.", "(a) A person is \"settled in the United Kingdom\" when he or she is ordinarily resident there without having entered or remained in breach of the immigration laws, and is free from any restriction on the period for which he or she may remain (paragraph 1).", "(b) An \"entry clearance\" (paragraphs 10-14) is a document (either a visa, an entry certificate or a Home Office letter of consent, depending on the nationality of the person concerned) which is to be taken by an immigration officer as evidence that the holder, although a \"non-patrial\", is eligible under the immigration rules for entry to the United Kingdom. It is obtained at British missions abroad or from the Home Office prior to arrival in the United Kingdom.", "(c) A marriage or intended marriage is \"non-qualifying\" if there is reason to believe that:", "- its primary purpose is to obtain admission to or settlement in the United Kingdom; or", "- the parties do not intend to live together permanently as man and wife; or", "- the parties have not met (paragraphs 50, 52 and 117).", "(d) There is \"potential evasion of the rules\" if there is reason to believe that a husband has remained in the United Kingdom in breach of the immigration rules before the marriage, that the marriage has taken place after a decision or recommendation that he be deported or that the marriage has terminated (paragraph 117).", "(e) The \"financial requirement\" is a requirement that varies according to the circumstances of the particular case : basically it means that adequate maintenance and accommodation must be available to the person concerned without the need for recourse to public funds (paragraphs 42, 52 and 55).", "2. \"Non-patrials\" seeking to join a spouse or intended spouse settled in the United Kingdom", "23. Where a \"non-patrial\" whose spouse or intended spouse was \"settled in the United Kingdom\" came to that country for settlement, he or she would be admitted for that purpose provided that he or she held a current \"entry clearance\" and unless the circumstances specified in paragraph 13 of the 1980 Rules obtained (for example, false representations, medical grounds, criminal record, exclusion would be conducive to the public good).", "(a) Where the intending entrant was a husband or fiancé, he could, under paragraphs 50 and 52, obtain an \"entry clearance\":", "(i) unless the marriage or intended marriage was \"non-qualifying\";", "(ii) if his wife or fiancée was a citizen of the United Kingdom and Colonies who or one of whose parents had been born in the United Kingdom; and", "(iii) if, in the cases of fiancés only, the \"financial requirement\" was satisfied.", "(b) Where the intending entrant was a wife or fiancée, she could, under paragraphs 42, 43 and 55, obtain an \"entry clearance\" irrespective of the nationality of her husband or fiancé or of his own or his parents'place of birth. Here, there was no provision as to \"non-qualifying\" marriages, but the \"financial requirement\" had generally to be satisfied.", "(c) Wives admitted under these rules would be given indefinite leave to enter; husbands would be initially admitted for twelve months and fiancés or fiancées for three months, with the possibility, subject to certain safeguards, of applying subsequently to the Home Office for indefinite leave (paragraphs 44, 51, 53, 55, 114 and 116).", "3. \"Non-patrials\" seeking to remain in the United Kingdom with a spouse settled there", "24. \"Non-patrials\" already admitted to the United Kingdom in a temporary capacity who subsequently married a person \"settled in the United Kingdom\" could also obtain permission to stay.", "(a) Where the \"non-patrial\" seeking permission was a man, the basic conditions (paragraph 117) were that:", "(i) his wife was a citizen of the United Kingdom and Colonies who or one of whose parents had been born in the United Kingdom; and", "(ii) the marriage was not \"non-qualifying\" and there was not \"potential evasion of the rules\".", "(b) Where the \"non-patrial\" seeking permission was a woman, she would normally be granted leave to remain on application (paragraph 115).", "(c) Leave to remain granted under these rules would be, for wives, indefinite and, for husbands, for an initial period of twelve months with the possibility, subject again to the conditions referred to in sub-paragraph (a) (ii) above, of subsequent removal of the time-limit (paragraphs 115 and 117).", "4. General considerations regarding leave to remain", "25. Decisions on applications for leave to remain were taken in the light of all relevant facts; thus, even where the individual satisfied the formal requirements, permission would normally be refused if the circumstances specified in paragraph 88 of the 1980 Rules obtained (for example, false representations, non-compliance with the time-limit or conditions subject to which he or she had been admitted or given leave to remain, undesirable character, danger to national security).", "E. Subsequent developments", "1. Introduction", "26. One result of the 1971 Act was that the right of abode in the United Kingdom became divorced from nationality : thus, a number of citizens of the United Kingdom and Colonies did not have that right (for example, because they had not been born in the British Islands; see paragraph 14 (a) above), whereas it was enjoyed by a number of persons who were not such citizens (for example, Commonwealth citizens having an ancestral link with the United Kingdom; see paragraph 14 (c) above). With a view to bringing citizenship and immigration laws into line, the position was substantially amended by the British Nationality Act 1981, which came into force on 1 January 1983. So far as is relevant for the present purposes, that Act:", "(a) replaced citizenship of the United Kingdom and Colonies (see paragraph 11 in fine above) with three separate citizenships, \"British\",\" British Dependent Territories\" and \"British Overseas\";", "(b) provided, in section 11(1), that on 1 January 1983 \"British citizenship\" was to be acquired by persons who were then citizens of the United Kingdom and Colonies and had the right of abode in the United Kingdom under the 1971 Act; this category could include a person who was neither born nor had a parent born in the United Kingdom (see paragraph 14 (b) above);", "(c) laid down detailed provisions on the acquisition of British citizenship by persons born after 1 January 1983;", "(d) contained, in section 6 and Schedule 1, detailed provisions on naturalisation as a British citizen on the basis of residence in the United Kingdom, the grant of a certificate of naturalisation being at the discretion of the Home Secretary;", "(e) amended the 1971 Act by providing in section 39 that the right of abode in the United Kingdom - use of the expressions \"patrial\" and \"non-patrial\" was abandoned - and the consequential freedom from immigration controls were in future to be enjoyed only by British citizens and by such Commonwealth citizens as on 31 December 1982 had the right of abode under the 1971 Act.", "2. The 1982 immigration rules", "27. On 6 December 1982, after debates in the House of Commons and the House of Lords, the Home Secretary laid before Parliament a Statement of Changes in Immigration Rules (HC 66; \"the 1982 Rules\"), intended to harmonise the immigration rules with the British Nationality Act 1981 and expressed to come into force on 1 January 1983. However, on 15 December 1982 the House of Commons passed a resolution disapproving the Statement, some Members finding the changes too lax and others, insufficient. Since by 1 January 1983 no further changes had been laid before Parliament, the 1982 Rules came into force on that date, notwithstanding the negative resolution (see paragraph 17 above).", "28. The 1982 Rules made no changes to the regime governing wives and fiancées, described in paragraphs 23-25 above. The regime governing a husband or fiancé was modified in the following main respects.", "(a) The requirement that, for him to be eligible for leave to enter or remain, his wife or fiancée had to be a citizen of the United Kingdom and Colonies born or having a parent born in the United Kingdom was, under paragraphs 41, 54 and 126, replaced by a requirement that she be a British citizen. The place of her own or her parents'birth ceased to be material since British citizens could include persons without the territorial birth link (for example, a woman born in a former Colony but having the right of abode in the United Kingdom by virtue of long residence there; see paragraphs 14 (b) and 26 (b) above).", "(b) By virtue of paragraphs 41, 54 and 126, the onus of proof was reversed, so that it became for the man seeking leave to enter or remain to show that the marriage was not \"non-qualifying\" or, in cases to which paragraph 126 applied, that there was not \"potential evasion of the rules\".", "(c) Leave to remain for settlement following marriage, granted to a man admitted in a temporary capacity (cf. paragraph 24 (c) above), would be for an initial period of twelve months, followed by a further period of twelve months and then by the possibility, subject again to the conditions referred to in sub-paragraph (b) above, of subsequent removal of the time-limit (paragraph 126).", "29. No provision was made in the 1982 Rules for women settled in the United Kingdom who were not British citizens to be joined by their husbands, although leave could be granted by the Home Secretary in the exercise of his extra-statutory discretion (see paragraph 19 above). These women could also apply for naturalisation as British citizens on the basis of residence, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above).", "3. The 1983 immigration rules", "30. On 9 February 1983, a further Statement of Changes in Immigration Rules (HC 169; \"the 1983 Rules\") was laid before Parliament. A motion disapproving these rules was defeated in the House of Commons and they came into force on 16 February 1983.", "31. The 1983 Rules again did not modify the regime governing wives and fiancées. That governing husbands was amended, so far as is material to the present case, in that, under paragraph 126, the position concerning the length of leave to remain granted to a man already in the United Kingdom reverted to that obtaining under the 1980 Rules (that is, initial leave of twelve months, followed by the possibility of indefinite leave; see paragraph 24 (c) above). This change was coupled with a transitional provision (paragraph 177) concerning men who, whilst the 1982 Rules were in force (see paragraph 28 (c) above), had been granted thereunder an extension of stay for a second period of twelve months: they were entitled to apply immediately for indefinite leave without awaiting the expiry of that period.", "32. There was no change in the position concerning women settled in the United Kingdom who were not British citizens, described in paragraph 29 above.", "F. Sanctions", "33. Under sections 3(5)(a), 3(6), 5, 6, 7 and 24(1)(b) of the 1971 Act, a person not having the right of abode in the United Kingdom and having only limited leave to enter or remain in that country who overstays the period of leave or fails to observe a condition attached thereto:", "(a) commits a criminal offence punishable with a fine of not more than £200 or imprisonment of not more than six months or both, to which penalties the court may, with certain exceptions, add a recommendation for deportation; and", "(b) is, with certain exceptions, liable to deportation, although he cannot be compelled to leave unless the Home Secretary decides to make a deportation order against him.", "G. Appeals", "34. Appellate authorities in immigration matters were established by the Immigration Appeals Act 1969. They consist of:", "(a) adjudicators, who sit alone and are appointed by the Home Secretary;", "(b) the Immigration Appeal Tribunal which sits in divisions of at least three members; the members are appointed by the Lord Chancellor and a certain number must be lawyers.", "There is no further right of appeal as such to the ordinary courts, but decisions of the appellate authorities are susceptible to judicial review by the High Court on the ground of such matters as error of law or unreasonableness. Judicial review of immigration decisions may also cover questions of an abuse or excess of power by the Home Secretary or whether an immigration officer acted impartially and fairly.", "35. Under sections 13, 14 and 15 of the 1971 Act, an appeal may, subject to certain exceptions, be made to an adjudicator against, inter alia:", "(a) refusal of leave to enter the United Kingdom or of an entry clearance;", "(b) variation of, or refusal to vary, a limited leave to remain in the United Kingdom;", "(c) a decision to make a deportation order.", "An appellant shall not be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending against a refusal to enlarge or remove the limit on the duration of the leave. However, no appeal lies against refusal of an extension of leave to remain if application therefor was made after expiry of the existing leave.", "36. Except as otherwise provided by the 1971 Act, an adjudicator is, under section 19(1), to allow an appeal only if he considers:", "(a) that the decision or action in question was not in accordance with the law or any immigration rules applicable to the case; or", "(b) that, where the decision or action involved the exercise of a discretion by the Home Secretary or an officer, that discretion should have been exercised differently.", "If, however, the decision or action is in accordance with the rules, the adjudicator may not review a refusal by the Home Secretary of a request, by the person concerned, that he should depart from the rules (section 19(2)).", "Where an appeal is allowed, the adjudicator must give such directions for giving effect to his decision as he thinks requisite and may also make further recommendations; the directions are binding on the Home Secretary except so long as an appeal to the Immigration Appeal Tribunal can be brought or is pending (sections 19(3) and 20(2)).", "37. Any party to an appeal to an adjudicator may appeal against his decision to the Immigration Appeal Tribunal, which may affirm that decision or make any other decision which the adjudicator could have made; it also has similar duties and powers in the matter of directions and recommendations. As the law stood at the relevant time, leave to appeal had generally to be obtained; it had to be granted, inter alia, if determination of the appeal turned upon an arguable point of law (section 20(1) of the 1971 Act and Rule 14 of the Immigration Appeals (Procedure) Rules 1972).", "H. Statistics", "38. (a) The Government estimated total immigration into the United Kingdom from the New Commonwealth (that is, the Commonwealth except Australia, Canada and New Zealand ) at 500,000 in the period from 1955 to mid-1962. It was thought that by the latter date some 600 million people had the right of abode (see paragraphs 13-14 above) in the United Kingdom. Between mid-1962 and the end of 1981, a further 900,000 people were estimated to have settled in that country from the New Commonwealth and Pakistan, some 420,000 from non-Commonwealth countries other than Pakistan and some 94,000 from the Old Commonwealth (Australia, Canada and New Zealand); relatively few countries were said to have accounted for most of this immigration.", "The official estimates for 1981 show that the population of the United Kingdom (53.7 million) included 2.2 million persons of New Commonwealth and Pakistan origin (of whom about 1 million were in the Greater London area ) and 1.2 million other persons not born in the United Kingdom (including those born in the Old Commonwealth but not those born in the Republic of Ireland). It is estimated that the population of New Commonwealth and Pakistan origin could rise to 2.5 million by 1986 and 3 million (5 per cent of the projected total population) by 1991.", "(b) According to the Government, some 3,500 persons entered the United Kingdom annually under the\" United Kingdom ancestry rule\" (see paragraph 20 above), but many of them emigrated after a few years.", "(c) In 1980-1983, there was an average net annual emigration from the United Kingdom of about 44,000, but the population density in 1981 - 229 persons per square kilometer or 355 persons per square kilometer for England alone - was higher than that of any other member State of the European Communities.", "(d) Statistics supplied by the Government showed that in Great Britain in 1981 90 per cent of all men of working age and 63 per cent of all women of working age were \"economically active\" (that is, either in employment, or self-employed, or unemployed). The corresponding figures for persons coming from the Indian sub-continent were 86 per cent for men and 41 per cent for women and, for persons coming from the West Indies or Guyana, 90 per cent for men and 70 per cent for women. The statistics also disclosed that a considerably higher proportion of \"economically active\" women (particularly married women) than men were in part-time employment only - 47 per cent of married women, compared with 2.3 per cent of men.", "Recent years have seen a high level of unemployment in the United Kingdom. In 1983, 15.3 per cent of \"economically active\" men and 8.4 per cent of \"economically active\" women were unemployed, as measured by official figures based on persons claiming unemployment benefit. There was a marked increase between 1980 and 1981, when the figures rose from 7.9 to 12.5 per cent and from 4.3 to 6.4 per cent, respectively.", "(e) The Government also produced to the Court detailed statistics in support of their claim that the overall effect of the 1980 Rules had been to lead to an annual reduction of up to 5,700 (rather than 2,000, as they had estimated before the Commission) in the number of husbands either accepted for settlement or applying successfully to come for settlement from all parts of the world. They recognised, however, that part - though not a major part - of this figure might represent a decrease attributable to economic conditions. In their submission, this reduction was of a considerable scale when viewed in relation to the figures for the total number of persons accepted for settlement into the United Kingdom. The latter figures (about one-half of which were in each year accounted for by wives and children of men already settled in the country) were: over 80,000 in 1975 and in 1976; around 70,000 in each year from 1977 to 1980; 59,100 in 1981; 53,900 in 1982; and 53,500 in 1983. The number of men accepted for settlement by reason of marriage was 11,190 in 1975; 11,060 in 1976; 5,610 in 1977; 9,330 in 1978; 9,900 in 1979; 9,160 in 1980; 6,690 in 1981; 6,070 in 1982; and 5,210 in 1983. The number of women so accepted was 19,890 in 1977; 18,950 in 1978; 19,780 in 1979; 15,430 in 1980; 16,760 in 1981; 15,490 in 1982; and 16,800 in 1983.", "The claimed reduction of 5,700 per annum was questioned by the applicants on the following grounds: it was based on a comparison with the figures for 1979, a year in which the number of applications from the Indian sub-continent was artificially high; in order to take account of the delays in processing applications and the twelve-month waiting-period before indefinite leave to remain would be granted, a more meaningful comparison would be between the 1981 and the 1983 figures; no account was taken of the natural decline in applications; and no account was taken of persons properly excluded (for example, on the ground that the marriage was not genuine).", "PROCEEDINGS BEFORE THE COMMISSION", "55. The application of Mrs. Abdulaziz (no. 9214/80) was lodged with the Commission on 11 December 1980 and those of Mrs. Cabales (no. 9473/81) and Mrs. Balkandali (no. 9474/81) on 10 August 1981. Each applicant claimed to be the victim of a practice authorised by Parliament and contained in the 1980 Rules, which practice was incompatible with the Convention, and alleged violations of Article 3 (art. 3), Article 8 (art. 8) (taken alone and in conjunction with Article 14) (art. 14+8)) and Article 13 (art. 13).", "56. On 11 May 1982, the Commission declared the three applications admissible and ordered their joinder in pursuance of Rule 29 of its Rules of Procedure.", "In its report adopted on 12 May 1983 (Article 31) (art. 31), the Commission expressed the opinion:", "- that there had been a violation of Article 14, in conjunction with Article 8 (art. 14+8), on the ground of sexual discrimination (unanimously);", "- that there had been no violation of the same Articles (art. 14+8), on the ground of racial discrimination (nine votes to three);", "- that the original application of the 1980 Rules in the case of Mrs. Balkandali constituted discrimination on the ground of birth, contrary to Article 14 in conjunction with Article 8 (art. 14+8) (eleven votes with one abstention);", "- that the absence of effective domestic remedies for the applicants'claims under Articles 3, 8 and 14 (art. 3, art. 8, art. 14) constituted a violation of Article 13 (art. 13) (eleven votes to one);", "- that it was not necessary to pursue a further examination of the matter in the light of Articles 3 and 8 (art. 3, art. 8). The full text of the Commission's opinion and of the dissenting opinion contained in the report is reproduced as an annex to the present judgment.", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT AND BY THE APPLICANTS", "57. At the hearings on 25 September 1984, the Government submitted that Mrs. Cabales'application was inadmissible ratione materiae. In other respects, they maintained in substance the submissions set out in their memorial of 12 March 1984, whereby they had requested the Court:", "\"(1) With regard to Articles 8 and 14 (art. 8, art. 14)", "(a) to decide and declare that matters of immigration control lie outside the scope of Article 8 (art. 8), so that no complaints based on the application of immigration control can succeed under Article 8 (art. 8), or under Article 14 taken together with Article 8 (art. 14+8);", "(b) to decide and declare that upon an examination of the facts of these cases, the matters complained of lie outside the scope of Article 8 (art. 8), with the consequence mentioned above;", "(c) to decide and declare, if necessary, that any discrimination under Article 14 (art. 14) is objectively and reasonably justified and not disproportionate to the aims of the measures in question;", "(d) to decide and declare, if necessary, that if there has been any interference with the exercise of rights arising under Article 8 (art. 8) in these applications, it is in accordance with the law and necessary in a democratic society in the interests of the economic well-being of the country, the prevention of disorder, and the protection of the rights and freedoms of others;", "(2) With regard to Article 3 (art. 3), to decide and declare that the facts of these cases are not capable of amounting, alternatively do not amount, to inhuman or degrading treatment under that Article (art. 3);", "(3) To decide and declare that Article 13 (art. 13) has no application to these cases, since the complaints fall outside the scope of Articles 3, 8 and 14 (art. 3, art. 8, art. 14); in any event to hold that as regards the immigration rules there is no obligation to provide a domestic remedy under that Article (art. 13); alternatively to hold that insofar as Article 13 (art. 13) does impose, on the facts, any obligation to provide a domestic remedy in relation to any of the matters complained of, that obligation is fulfilled.\"", "The applicants, for their part, maintained in substance the submissions set out in their memorial of 30 March 1984, whereby they had requested the Court to decide and declare:", "\"1. that the applicants are victims of a practice in violation of their right to respect for family life, contrary to Article 8 (art. 8) of the Convention;", "2. that they are further victims of a practice of discrimination in the securement of their said right", "(a) in respect of all three applicants, on the grounds of sex and race; and", "(b) in respect of Mrs. Balkandali, on the ground of birth, contrary to Article 14 in conjunction with Article 8 (art. 14+8) of the Convention;", "3. that such discrimination constituted degrading treatment contrary to Article 3 (art. 3) of the Convention;", "4. that the absence of effective remedies for the applicants'claims under Articles 3, 8 and 14 (art. 3, art. 8, art. 14) constituted a violation of Article 13 (art. 13) of the Convention;", "5. that the United Kingdom Government should pay appropriate compensation, including costs, to the applicants by way of just satisfaction.\"", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)", "58. The applicants claimed to be victims of a practice in violation of their right to respect for family life, guaranteed by Article 8 (art. 8) of the Convention, which reads as follows:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "A. Applicability of Article 8 (art. 8)", "59. The Government's principal submission was that neither Article 8 (art. 8) nor any other Article of the Convention applied to immigration control, for which Protocol No. 4 (P4) was the only appropriate text. In their opinion, the fact that that Protocol (P4) was, as stated in its preamble, designed to afford rights additional to those protected by Section I of the Convention conclusively demonstrated that rights in the field of immigration were not already accorded by the Convention itself, and in particular by Article 8 (art. 8) thereof. Furthermore, the applicants were claiming a right which was not secured to aliens, even by the Protocol (P4), an instrument that in any event had not been ratified by the United Kingdom.", "The Commission rejected this argument at the admissibility stage. In doing so, it confirmed - and the applicants now relied on - its established case-law: the right of a foreigner to enter or remain in a country was not as such guaranteed by the Convention, but immigration controls had to be exercised consistently with Convention obligations, and the exclusion of a person from a State where members of his family were living might raise an issue under Article 8 (art. 8).", "60. The Court is unable to accept the Government's submission.", "The applicants are not the husbands but the wives, and they are complaining not of being refused leave to enter or remain in the United Kingdom but, as persons lawfully settled in that country, of being deprived (Mrs. Cabales), or threatened with deprivation (Mrs. Abdulaziz and Mrs. Balkandali), of the society of their spouses there.", "Above all, the Court recalls that the Convention and its Protocols must be read as a whole; consequently a matter dealt with mainly by one of their provisions may also, in some of its aspects, be subject to other provisions thereof (see the \"Belgian Linguistic\" judgment of 23 July 1968, Series A no. 6, p. 33, para. 7). Thus, although some aspects of the right to enter a country are governed by Protocol No. 4 as regards States bound by that instrument, it is not to be excluded that measures taken in the field of immigration may affect the right to respect for family life under Article 8 (art. 8). The Court accordingly agrees on this point with the Commission.", "61. In the alternative, the Government advanced two further arguments to support their contention that Article 8 (art. 8) was not applicable.", "Firstly, the Article (art. 8) was said to guarantee respect solely for existing family life, whereas here the couples concerned had not, at the time when the request was made for permission for the man to enter or remain in the United Kingdom, established any such life with the legitimate expectation of the enjoyment of it in that country.", "Secondly, since there was no obstacle to the couples'living together in, respectively, Portugal, the Philippines or Turkey, they were in reality claiming a right to choose their country of residence, something that was not guaranteed by Article 8 (art. 8).", "These arguments were contested by the applicants. Whilst the Commission did not examine the applications under Article 8 (art. 8) taken alone, it considered that they did not lie outside its scope.", "62. The Court recalls that, by guaranteeing the right to respect for family life, Article 8 (art. 8) \"presupposes the existence of a family\" (see the Marckx judgment of 13 June 1979, Series A no. 31, p. 14, para. 31). However, this does not mean that all intended family life falls entirely outside its ambit. Whatever else the word \"family\" may mean, it must at any rate include the relationship that arises from a lawful and genuine marriage, such as that contracted by Mr. and Mrs. Abdulaziz and Mr. and Mrs. Balkandali, even if a family life of the kind referred to by the Government has not yet been fully established. Those marriages must be considered sufficient to attract such respect as may be due under Article 8 (art. 8).", "Furthermore, the expression \"family life\", in the case of a married couple, normally comprises cohabitation. The latter proposition is reinforced by the existence of Article 12 (art. 12), for it is scarcely conceivable that the right to found a family should not encompass the right to live together. The Court further notes that Mr. and Mrs. Abdulaziz had not only contracted marriage but had also cohabited for a certain period before Mr. Abdulaziz was refused leave to remain in the United Kingdom (see paragraphs 40-41 above). Mr. and Mrs. Balkandali had also cohabited and had a son, although they were not married until after Mr. Balkandali's leave to remain as a student had expired and an extension been refused; their cohabitation was continuing when his application for leave to remain as a husband was rejected (see paragraphs 51-52 above).", "63. The case of Mrs. Cabales has to be considered separately, having regard to the question raised as to the validity of her marriage (see paragraph 48 above). The Government argued that, in the circumstances, her application was inadmissible ratione materiae and thus did not have to be examined by the Court.", "Although this plea was framed in terms of admissibility, the Court is of the opinion that it goes to the merits of the application and is therefore preferably dealt with on that basis (see, mutatis mutandis, the Airey judgment of 9 October 1979, Series A no. 32, p. 10, para. 18).", "The Court does not consider that it has to resolve the difference of opinion that has arisen concerning the effect of Philippine law. Mr. and Mrs. Cabales had gone through a ceremony of marriage (see paragraph 45 above) and the evidence before the Court confirms that they believed themselves to be married and that they genuinely wished to cohabit and lead a normal family life. And indeed they subsequently did so. In the circumstances, the committed relationship thus established was sufficient to attract the application of Article 8 (art. 8).", "64. There remains the Government's argument concerning choice of country of residence. The Court considers that this goes more to the degree of respect for family life which must be afforded and will therefore examine it in that context (see paragraph 68 below).", "65. To sum up, each of the applicants had to a sufficient degree entered upon \"family\" life for the purposes of Article 8 (art. 8); that provision is therefore applicable in the present case.", "In view of the importance of the issues involved, the Court, unlike the Commission, considers that it has to determine whether there has been a violation of Article 8 (art. 8) taken alone.", "B. Compliance with Article 8 (art. 8)", "66. The applicants contended that respect for family life - which in their cases the United Kingdom had to secure within its own jurisdiction - encompassed the right to establish one's home in the State of one's nationality or lawful residence; subject only to the provisions of paragraph 2 of Article 8 (art. 8-2), the dilemma either of moving abroad or of being separated from one's spouse was inconsistent with this principle. Furthermore, hindrance in fact was just as relevant as hindrance in law: for the couples to live in, respectively, Portugal, the Philippines or Turkey would involve or would have involved them in serious difficulties (see paragraphs 43, 49 and 54 above), although there was no legal impediment to their doing so.", "67. The Court recalls that, although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective \"respect\" for family life (see the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31). However, especially as far as those positive obligations are concerned, the notion of \"respect\" is not clear-cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see, amongst other authorities, mutatis mutandis, the above-mentioned \"Belgian Linguistic\" judgment, Series A no. 6, p. 32, para. 5; the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 18, para. 39; the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31; and the Rasmussen judgment of 28 November 1984, Series A no. 87, p. 15, para. 40). In particular, in the area now under consideration, the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.", "68. The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom, as single persons, that the applicants contracted marriage (see paragraphs 39-40, 44-45 and 50-52 above). The duty imposed by Article 8 (art. 8) cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.", "In the present case, the applicants have not shown that there were obstacles to establishing family life in their own or their husbands'home countries or that there were special reasons why that could not be expected of them.", "In addition, at the time of their marriage", "(i) Mrs. Abdulaziz knew that her husband had been admitted to the United Kingdom for a limited period as a visitor only and that it would be necessary for him to make an application to remain permanently, and she could have known, in the light of draft provisions already published (see paragraph 20 above), that this would probably be refused;", "(ii) Mrs. Balkandali must have been aware that her husband's leave to remain temporarily as a student had already expired, that his residence in the United Kingdom was therefore unlawful and that under the 1980 Rules, which were then in force, his acceptance for settlement could not be expected.", "In the case of Mrs. Cabales, who had never cohabited with Mr. Cabales in the United Kingdom, she should have known that he would require leave to enter and that under the rules then in force this would be refused.", "69. There was accordingly no \"lack of respect\" for family life and, hence, no breach of Article 8 (art. 8) taken alone.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8)", "A. Introduction", "70. The applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and also - in the case of Mrs. Balkandali - birth, they had been victims of a violation of Article 14 of the Convention, taken together with Article 8 (art. 14+8). The former Article (art. 14) reads as follows:", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "In the event that the Court should find Article 8 (art. 8) to be applicable in the present case, the Government denied that there was any difference of treatment on the ground of race and submitted that since the differences of treatment on the ground of sex and of birth had objective and reasonable justifications and were proportionate to the aims pursued, they were compatible with Article 14 (art. 14).", "71. According to the Court's established case-law, Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to \"the enjoyment of the rights and freedoms\" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, inter alia, the above-mentioned Rasmussen judgment, Series A no. 87, p. 12, para. 29).", "The Court has found Article 8 (art. 8) to be applicable (see paragraph 65 above). Although the United Kingdom was not obliged to accept Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali for settlement and the Court therefore did not find a violation of Article 8 (art. 8) taken alone (see paragraphs 68-69 above), the facts at issue nevertheless fall within the ambit of that Article (art. 8). In this respect, a parallel may be drawn, mutatis mutandis, with the National Union of Belgian Police case (see the judgment of 27 October 1975, Series A no. 19, p. 20, para. 45).", "Article 14 (art. 14) also is therefore applicable.", "72. For the purposes of Article 14 (art. 14), a difference of treatment is discriminatory if it \"has no objective and reasonable justification\", that is, if it does not pursue a \"legitimate aim\" or if there is not a \"reasonable relationship of proportionality between the means employed and the aim sought to be realised\" (see, inter alia, the above-mentioned \"Belgian Linguistic\" judgment, Series A no. 6, p. 34, para. 10, the above-mentioned Marckx judgment, Series A no. 31, p. 16, para. 33, and the above-mentioned Rasmussen judgment, Series A no. 87, p. 14, para. 38).", "The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the above-mentioned Rasmussen judgment, ibid., p. 15, para. 40), but it is for the Court to give the final ruling in this respect.", "73. In the particular circumstances of the case, the Court considers that it must examine in turn the three grounds on which it was alleged that a discriminatory difference of treatment was based.", "B. Alleged discrimination on the ground of sex", "74. As regards the alleged discrimination on the ground of sex, it was not disputed that under the 1980 Rules it was easier for a man settled in the United Kingdom than for a woman so settled to obtain permission for his or her non-national spouse to enter or remain in the country for settlement (see paragraphs 23-25 above). Argument centred on the question whether this difference had an objective and reasonable justification.", "75. According to the Government, the difference of treatment complained of had the aim of limiting \"primary immigration\" (see paragraph 21 above) and was justified by the need to protect the domestic labour market at a time of high unemployment. They placed strong reliance on the margin of appreciation enjoyed by the Contracting States in this area and laid particular stress on what they described as a statistical fact: men were more likely to seek work than women, with the result that male immigrants would have a greater impact than female immigrants on the said market. Furthermore, the reduction, attributed by the Government to the 1980 Rules, of approximately 5,700 per annum in the number of husbands accepted for settlement in the United Kingdom (see paragraph 38 (e) above) was claimed to be significant. This was said to be so especially when the reduction was viewed in relation to its cumulative effect over the years and to the total number of acceptances for settlement.", "This view was contested by the applicants. For them, the Government's plea ignored the modern role of women and the fact that men may be self-employed and also, as was exemplified by the case of Mr. Balkandali (see paragraph 53 above), create rather than seek jobs. Furthermore, the Government's figure of 5,700 was said to be insignificant and, for a number of reasons, in any event unreliable (see paragraph 38 (e) in fine above).", "76. The Government further contended that the measures in question were justified by the need to maintain effective immigration control, which benefited settled immigrants as well as the indigenous population. Immigration caused strains on society; the Government's aim was to advance public tranquillity, and a firm and fair control secured good relations between the different communities living in the United Kingdom.", "To this, the applicants replied that the racial prejudice of the United Kingdom population could not be advanced as a justification for the measures.", "77. In its report, the Commission considered that, when seen in the context of the immigration of other groups, annual emigration and unemployment and economic activity rates, the impact on the domestic labour market of an annual reduction of 2,000 (as then estimated by the Government) in the number of husbands accepted for settlement in the United Kingdom (see paragraph 38 (e) above) was not of a size or importance to justify a difference of treatment on the ground of sex and the detrimental consequences thereof on the family life of the women concerned. Furthermore, the long-standing commitment to the reunification of the families of male immigrants, to which the Government had referred as a reason for accepting wives whilst excluding husbands, no longer corresponded to modern requirements as to the equal treatment of the sexes. Neither was it established that race relations or immigration controls were enhanced by the rules: they might create resentment in part of the immigrant population and it had not been shown that it was more difficult to limit abuses by non-national husbands than by other immigrant groups. The Commission unanimously concluded that there had been discrimination on the ground of sex, contrary to Article 14 (art. 14), in securing the applicants'right to respect for family life, the application of the relevant rules being disproportionate to the purported aims.", "At the hearings before the Court, the Commission's Delegate stated that this conclusion was not affected by the Government's revised figure (about 5,700) for the annual reduction in the number of husbands accepted for settlement.", "78. The Court accepts that the 1980 Rules had the aim of protecting the domestic labour market. The fact that, as was suggested by the applicants, this aim might have been further advanced by the abolition of the \"United Kingdom ancestry\" and the \"working holiday\" rules (see paragraph 20 above) in no way alters this finding. Neither does the Court perceive any conclusive evidence to contradict it in the Parliamentary debates, on which the applicants also relied. It is true, as they pointed out, that unemployment in the United Kingdom in 1980 was lower than in subsequent years, but it had nevertheless already attained a significant level and there was a considerable increase as compared with previous years (see paragraph 38 (d) above).", "Whilst the aforesaid aim was without doubt legitimate, this does not in itself establish the legitimacy of the difference made in the 1980 Rules as to the possibility for male and female immigrants settled in the United Kingdom to obtain permission for, on the one hand, their non-national wives or fiancées and, on the other hand, their non-national husbands or fiancés to enter or remain in the country.", "Although the Contracting States enjoy a certain \"margin of appreciation\" in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, the scope of this margin will vary according to the circumstances, the subject-matter and its background (see the above-mentioned Rasmussen judgment, Series A no. 87, p. 15, para. 40).", "As to the present matter, it can be said that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention.", "79. In the Court's opinion, the Government's arguments summarised in paragraph 75 above are not convincing.", "It may be correct that on average there is a greater percentage of men of working age than of women of working age who are \"economically active\" (for Great Britain 90 per cent of the men and 63 per cent of the women) and that comparable figures hold good for immigrants (according to the statistics, 86 per cent for men and 41 per cent for women for immigrants from the Indian sub-continent and 90 per cent for men and 70 per cent for women for immigrants from the West Indies and Guyana) (see paragraph 38 (d) above).", "Nevertheless, this does not show that similar differences in fact exist - or would but for the effect of the 1980 Rules have existed - as regards the respective impact on the United Kingdom labour market of immigrant wives and of immigrant husbands. In this connection, other factors must also be taken into account. Being \"economically active\" does not always mean that one is seeking to be employed by someone else. Moreover, although a greater number of men than of women may be inclined to seek employment, immigrant husbands were already by far outnumbered, before the introduction of the 1980 Rules, by immigrant wives (see paragraph 38 (e) above), many of whom were also \"economically active\". Whilst a considerable proportion of those wives, in so far as they were \"economically active\", were engaged in part-time work, the impact on the domestic labour market of women immigrants as compared with men ought not to be underestimated.", "In any event, the Court is not convinced that the difference that may nevertheless exist between the respective impact of men and of women on the domestic labour market is sufficiently important to justify the difference of treatment, complained of by the applicants, as to the possibility for a person settled in the United Kingdom to be joined by, as the case may be, his wife or her husband.", "80. In this context the Government stressed the importance of the effect on the immigration of husbands of the restrictions contained in the 1980 Rules, which had led, according to their estimate, to an annual reduction of 5,700 (rather than 2,000, as mentioned in the Commission's report) in the number of husbands accepted for settlement.", "Without expressing a conclusion on the correctness of the figure of 5,700, the Court notes that in point of time the claimed reduction coincided with a significant increase in unemployment in the United Kingdom and that the Government accepted that some part of the reduction was due to economic conditions rather than to the 1980 Rules themselves (see paragraph 38 (d) and (e) above).", "In any event, for the reasons stated in paragraph 79 above, the reduction achieved does not justify the difference in treatment between men and women.", "81. The Court accepts that the 1980 Rules also had, as the Government stated, the aim of advancing public tranquillity. However, it is not persuaded that this aim was served by the distinction drawn in those rules between husbands and wives.", "82. There remains a more general argument advanced by the Government, namely that the United Kingdom was not in violation of Article 14 (art. 14) by reason of the fact that it acted more generously in some respects - that is, as regards the admission of non-national wives and fiancées of men settled in the country - than the Convention required.", "The Court cannot accept this argument. It would point out that Article 14 (art. 14) is concerned with the avoidance of discrimination in the enjoyment of the Convention rights in so far as the requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 (art. 14) includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention.", "83. The Court thus concludes that the applicants have been victims of discrimination on the ground of sex, in violation of Article 14 taken together with Article 8 (art. 14+8).", "C. Alleged discrimination on the ground of race", "84. As regards the alleged discrimination on the ground of race, the applicants relied on the opinion of a minority of the Commission. They referred, inter alia, to the whole history of and background to the United Kingdom immigration legislation (see paragraphs 11-15 above) and to the Parliamentary debates on the immigration rules.", "In contesting this claim, the Government submitted that the 1980 Rules were not racially motivated, their aim being to limit \"primary immigration\" (see paragraph 21 above).", "A majority of the Commission concluded that there had been no violation of Article 14 (art. 14) under this head. Most immigration policies - restricting, as they do, free entry - differentiated on the basis of people's nationality, and indirectly their race, ethnic origin and possibly their colour. Whilst a Contracting State could not implement \"policies of a purely racist nature\", to give preferential treatment to its nationals or to persons from countries with which it had the closest links did not constitute \"racial discrimination\". The effect in practice of the United Kingdom rules did not mean that they were abhorrent on the grounds of racial discrimination, there being no evidence of an actual difference of treatment on grounds of race.", "A minority of the Commission, on the other hand, noted that the main effect of the rules was to prevent immigration from the New Commonwealth and Pakistan. This was not coincidental: the legislative history showed that the intention was to \"lower the number of coloured immigrants\". By their effect and purpose, the rules were indirectly racist and there had thus been a violation of Article 14 (art. 14) under this head in the cases of Mrs. Abdulaziz and Mrs. Cabales.", "85. The Court agrees in this respect with the majority of the Commission.", "The 1980 Rules, which were applicable in general to all \"non-patrials\" wanting to enter and settle in the United Kingdom, did not contain regulations differentiating between persons or groups on the ground of their race or ethnic origin. The rules included in paragraph 2 a specific instruction to immigration officers to carry out their duties without regard to the race, colour or religion of the intending entrant (see paragraph 20 above), and they were applicable across the board to intending immigrants from all parts of the world, irrespective of their race or origin.", "As the Court has already accepted, the main and essential purpose of the 1980 Rules was to curtail \"primary immigration\" in order to protect the labour market at a time of high unemployment. This means that their reinforcement of the restrictions on immigration was grounded not on objections regarding the origin of the non-nationals wanting to enter the country but on the need to stem the flow of immigrants at the relevant time.", "That the mass immigration against which the rules were directed consisted mainly of would-be immigrants from the New Commonwealth and Pakistan, and that as a result they affected at the material time fewer white people than others, is not a sufficient reason to consider them as racist in character: it is an effect which derives not from the content of the 1980 Rules but from the fact that, among those wishing to immigrate, some ethnic groups outnumbered others.", "The Court concludes from the foregoing that the 1980 Rules made no distinction on the ground of race and were therefore not discriminatory on that account. This conclusion is not altered by the following two arguments on which the applicants relied.", "(a) The requirement that the wife or fiancée of the intending entrant be born or have a parent born in the United Kingdom and also the \"United Kingdom ancestry rule\" (see paragraphs 23, 24 and 20 above) were said to favour persons of a particular ethnic origin. However, the Court regards these provisions as being exceptions designed for the benefit of persons having close links with the United Kingdom, which do not affect the general tenor of the rules.", "(b) The requirement that the parties to the marriage or intended marriage must have met (see paragraphs 22-24 above) was said to operate to the disadvantage of individuals from the Indian sub-continent, where the practice of arranged marriages is customary. In the Court's view, however, such a requirement cannot be taken as an indication of racial discrimination: its main purpose was to prevent evasion of the rules by means of bogus marriages or engagements. It is, besides, a requirement that has nothing to do with the present cases.", "86. The Court accordingly holds that the applicants have not been victims of discrimination on the ground of race.", "D. Alleged discrimination on the ground of birth", "87. Mrs. Balkandali claimed that she had also been the victim of discrimination on the ground of birth, in that, as between women citizens of the United Kingdom and Colonies settled in the United Kingdom, only those born or having a parent born in that country could, under the 1980 Rules, have their non-national husband accepted for settlement there (see paragraphs 23-24 above).", "It was not disputed that the 1980 Rules established a difference of treatment on the ground of birth, argument being centred on the question whether it had an objective and reasonable justification.", "In addition to relying on the Commission's report, Mrs. Balkandali submitted that the elimination of this distinction from subsequent immigration rules (see paragraph 28 (a) above) demonstrated that it was not previously justified.", "The Government maintained that the difference in question was justified by the concern to avoid the hardship which women having close ties to the United Kingdom would encounter if, on marriage, they were obliged to move abroad in order to remain with their husbands.", "The Commission considered that, notwithstanding the subsequent elimination of this difference, the general interest and the possibly temporary nature of immigration rules required it to express an opinion. It took the view that a difference of treatment based on the mere accident of birth, without regard to the individual's personal circumstances or merits, constituted discrimination in violation of Article 14 (art. 14).", "88. The Court is unable to share the Commission's opinion. The aim cited by the Government is unquestionably legitimate, for the purposes of Article 14 (art. 14). It is true that a person who, like Mrs. Balkandali, has been settled in a country for several years may also have formed close ties with it, even if he or she was not born there. Nevertheless, there are in general persuasive social reasons for giving special treatment to those whose link with a country stems from birth within it. The difference of treatment must therefore be regarded as having had an objective and reasonable justification and, in particular, its results have not been shown to transgress the principle of proportionality. This conclusion is not altered by the fact that the immigration rules were subsequently amended on this point.", "89. The Court thus holds that Mrs. Balkandali was not the victim of discrimination on the ground of birth.", "III. ALLEGED VIOLATION OF ARTICLE 3 (art. 3)", "90. The applicants claimed to have been subjected to degrading treatment, in violation of Article 3 (art. 3), which reads:", "\"No one shall be subjected to torture or to inhuman or degrading treatment or punishment.\"", "In their view, the discrimination against them constituted an affront to human dignity. They also referred to Mr. and Mrs. Cabales'lengthy separation and to the anxiety and stress undergone by Mrs. Abdulaziz and Mrs. Balkandali.", "The Government contested this claim on various grounds. According to the Commission, Article 14 (art. 14) incorporated a condemnation of the degrading aspects of sexual and other forms of discrimination and no separate issues arose under Article 3 (art. 3).", "91. The Court observes that the difference of treatment complained of did not denote any contempt or lack of respect for the personality of the applicants and that it was not designed to, and did not, humiliate or debase but was intended solely to achieve the aims referred to in paragraphs 75, 76, 78 and 81 above (see the Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p. 13, para. 22). It cannot therefore be regarded as \"degrading\".", "There was accordingly no violation of Article 3 (art. 3).", "IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)", "92. The applicants alleged that they had had no effective remedy for their complaints under Articles 3, 8 and 14 (art. 3, art. 8, art. 14) and that there had accordingly been a breach of Article 13 (art. 13), which reads:", "\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "In the event that the Court should find Articles 3, 8 and 14 (art. 3, art. 8, art. 14) to be applicable, the Government contended that the immigration rules, though not constituting delegated legislation, fell within the principle enunciated by the Commission in its report in the case of Young, James and Webster (Series B no. 39, p. 49), namely that Article 13 (art. 13) does not require that a remedy be provided for controlling the conformity of a law with the Convention. In the alternative, they submitted that the remedies that were available to the applicants were \"effective\".", "The Commission considered that the immigration rules fell outside the aforementioned principle. Having reviewed the available channels of complaint, it concluded that there had been a violation of Article 13 (art. 13).", "93. The Court has found that the discrimination on the ground of sex of which Mrs. Abdulaziz, Mrs. Cabales and Mrs. Balkandali were victims was the result of norms that were in this respect incompatible with the Convention. In this regard, since the United Kingdom has not incorporated the Convention into its domestic law, there could be no \"effective remedy\" as required by Article 13 (art. 13) (see the Silver and Others judgment of 25 March 1983, Series A no. 61, pp. 42-44, paras. 111-119, and the Campbell and Fell judgment of 28 June 1984, Series A no. 80, p. 52, para. 127). Recourse to the available channels of complaint (the immigration appeals system, representations to the Home Secretary, application for judicial review; see paragraphs 19 and 34-37 above) could have been effective only if the complainant alleged that the discrimination resulted from a misapplication of the 1980 Rules. Yet here no such allegation was made nor was it suggested that that discrimination in any other way contravened domestic law.", "The Court accordingly concludes that there has been a violation of Article 13 (art. 13).", "V. APPLICATION OF ARTICLE 50 (art. 50)", "94. Mrs. Abdulaziz, Mrs. Cabales and Mrs. Balkandali claimed, for \"moral damage\" and costs and expenses, just satisfaction under Article 50 (art. 50), which reads:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "All the applicants, including Mrs. Cabales, have been victims of a breach of Article 14 taken in conjunction with Article 8 (art. 14+8) (see paragraphs 63 and 83 above), with the result that Article 50 (art. 50) is applicable as regards each of them.", "A. Damage", "95. The applicants sought \"substantial\", but unquantified, compensation for non-pecuniary damage in the form of distress, humiliation and anxiety. They stated that the interference complained of concerned a vital element in society, namely family life; that sexual discrimination was universally condemned; and that the existence of a practice in breach of the Convention was an aggravating factor. They also cited, inter alia, the adverse effects on the development of family ties and on the making of long-term plans; the threat of criminal or deportation proceedings against Mr. Abdulaziz and Mr. Balkandali (see paragraph 33 above); the lengthy separation of Mr. and Mrs. Cabales; and the fact that Mr. Abdulaziz would have been accepted for settlement in the United Kingdom under the rules in force at the dates of his marriage and of his application for leave to remain (see paragraph 41 above). Mrs. Balkandali added that the subsequent grant to her husband of leave to remain (see paragraph 53 above) had afforded no reparation for her previous distress.", "The Government contended firstly that an award of just satisfaction to Mrs. Abdulaziz and Mrs. Balkandali was not \"necessary\": there was no evidence of the alleged damage nor had it been proved that any damage was the result of the violations that might be found by the Court. In the alternative, they submitted that a finding of violation would of itself constitute sufficient just satisfaction: at the time of their marriage, the couples concerned knew that they were not entitled to live together in the United Kingdom; in fact, they had not been prevented from doing so; and since they could have lived in Portugal or Turkey, family ties and long-term plans had not been adversely affected. Similar pleas were advanced concerning Mrs. Cabales.", "96. By reason of its very nature, non-pecuniary damage of the kind alleged cannot always be the object of concrete proof. However, it is reasonable to assume that persons who, like the applicants, find themselves faced with problems relating to the continuation or inception of their married life may suffer distress and anxiety. Nevertheless, having regard in particular to the factors relied on by the Government in their alternative submission, the Court considers that in the circumstances of these cases its findings of violation of themselves constitute sufficient just satisfaction. The applicants'claim for monetary compensation cannot therefore be accepted.", "B. Costs and expenses", "97. The applicants claimed in respect of their costs and expenses referable to the proceedings before the Convention institutions - subject to deduction of the amounts they had received by way of legal aid and of a donation of £342.83 - the following sums (exclusive of any value added tax):", "(a) £14,955.61 for the fees and disbursements of Messrs. Bindman & Partners, solicitors;", "(b) £8,745 for the fees of Mr. Michael Beloff, Q.C.;", "(c) £5,411 for the fees of junior counsel (Mrs. Dangor up to March 1984 and Prof. Higgins thereafter);", "(d) U.S.$ 120.75, being the one-half not reimbursed out of the Court's legal aid fund of fees paid to Messrs. Sycip, Salazar, Feliciano & Hernandez for advice on Philippine law relative to Mrs. Cabales'marriage.", "98. The Government indicated that they were prepared to pay such amounts as were in accordance with the Court's practice in the matter and were not covered by the applicants'legal aid. With the exception of the points mentioned in the following paragraph, the Government did not assert that the claim failed to satisfy the Court's criteria in the matter (see, amongst many other authorities, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 14, para. 36); in particular, they did not contest that the applicants had incurred liability for costs additional to those covered by their legal aid (cf., inter alia, the Airey judgment of 6 February 1981, Series A no. 41, p. 9, para. 13). Subject to an examination of those points, the Court therefore retains the whole of the claim.", "99. (a) The Government observed that the fees claimed in respect of junior counsel were, as compared with those claimed for leading counsel, higher than would, by convention, be paid in domestic litigation. The applicants disputed the existence of an inflexible rule in this respect.", "The Court recalls that, in any event, it is not bound by the rules of domestic practice in this area (see the Silver and Others judgment of 24 October 1983, Series A no. 67, p. 10, para. 20). It finds, having regard to the circumstances and complexity of the case, that the fees in question are reasonable as to quantum.", "(b) The Government contended that, unless the person who consulted Messrs. Sycip, Salazar, Feliciano & Hernandez had been acting as agent for Messrs. Bindman & Partners, there should be an appropriate deduction as regards the former firm's fees. Mrs. Cabales replied that that person had been so acting and that the latter firm had paid the fees. The Court notes that the account in question was, in fact, addressed to Messrs. Bindman & Partners.", "100. The costs and expenses accepted by the Court total U.S.$ 120.75 and, after subtracting the donation of £342.83, £28,768.78. From the latter amount has to be deducted the sum of 9,650 FF received by the applicants from the Commission and the Court by way of legal aid; the resulting figure is to be increased by any value added tax that may be due." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1973 and lives in Bucharest. He is a lawyer.", "7. In a judgment of 25 May 2011, the Bucharest Court of First Instance sentenced him to seven years ’ imprisonment for embezzlement and forgery. On 1 December 2011 he was imprisoned in the police station ’ s detention facility in Bucharest ( Centrul de reţinere şi arestare preventivă nr. 2 – secţia 4 Poliţie ), where he started serving his sentence. The judgment of the Court of First Instance was upheld by a final judgment of the Bucharest Court of Appeal of 25 November 2011, which was finalised on 25 May 2012.", "A. Requests for a stay of execution of sentence", "8. The applicant lodged two applications for a stay of execution of sentence under Article 453 § 1 b) and c) of the former Code of Criminal Procedure (“the CCP” ) ( see paragraph 22 below ). He submitted that he was married and had a child who was only a few months old, born on 19 May 2011, whom he wanted to look after, and that his family were experiencing financial and social difficulties on account of his detention.", "9. In a judgment of 27 March 2012, the Bucharest Court of First Instance dismissed his first application on the grounds that a stay of execution of sentence provided for by Article 453 § 1 b) of the CCP for convicted mothers up to their child ’ s first birthday had to be interpreted strictly and that the applicant could not seek application of that provision by analogy. It also found that the financial and family difficulties referred to by the applicant did not fall within the category of special circumstances required by Article 453 § 1 c) of the CCP to allow a deferral of sentence, especially as they had existed prior to his placement in detention.", "10. On appeal by the applicant, the Bucharest County Court upheld the judgment of the Court of First Instance in a judgment of 7 May 2012.", "11. In a judgment of 13 June 2012, the Bucharest Court of First Instance dismissed the second application lodged by the applicant under Article 453 § 1 c) of the CCP on the grounds that the statutory conditions were not satisfied. In particular, the court found that enforcement of the sentence did not endanger the applicant ’ s personal or family situation. In a judgment of 17 July 2012, the Bucharest County Court dismissed an appeal by the applicant against that judgment.", "B. Conditions of detention", "12. The applicant was detained in a number of different prisons, including the Bucharest police detention facility ( from 1 to 13 December 2011), Bucharest ‑ Rahova Prison ( from 13 to 19 December 2011, 21 December 2011 to 9 January 2012 and 17 January 2012 to 30 January 2013), Mărgineni Prison ( from 9 to 17 January 2012) and Giurgiu Prison ( from 30 January to 25 February 2013 and from 11 March to 26 September 2013).", "1. The applicant ’ s version", "13. With regard to the Bucharest police detention facility, the applicant stated that he had been detained there with three other detainees, in cell no. 1, which he said measured 1. 80 x 2 sq. m. He said that the cell had only one window, measuring 30 x 40 sq. cm, which had two rows of bars across it and therefore did not let natural light in. He added that the toilets were dirty and separated from the rest of the cell only by a curtain. Lastly, he stated that running water was available only two hours per day.", "14. With regard to Bucharest ‑ Rahova Prison, the applicant said that he had been detained in cell no. 209 with eight other detainees. He said that the cell measured 3. 20 x 5. 80 sq. m and had only one window, measuring 1 x 1. 20 sq. m, with bars and a grille and thus no natural light. He added that the cell had been damp and had an unpleasant smell.", "15. With regard to Mărgineni Prison, he stated that he had been detained there with twenty-four other detainees in a 2 x 6. sq. m. cell and that there had been no running water.", "16. Regarding Giurgiu Prison, he said that he had been detained in an overcrowded cell. He alleged, among other things, that hot water had only rarely been available and that the mattress and bed linen had been dirty. He also complained of the presence of cockroaches, rats and bed bugs.", "2. The Government ’ s version", "17. The Government stated that in the Bucharest police detention facility the applicant had been held in a 10. 68 sq. m cell containing four bunk beds, a television, natural light and toilets measuring 2. 5 sq. m.", "18. At Bucharest- Rahova Prison the applicant had been successively detained in seven cells, varying from 19. 30 sq. m to 19. 58 sq. m in size and containing ten bunk beds. They added that the cells were equipped with toilets, a kitchenette and ventilation and had natural light.", "19. At Mărgineni Prison the applicant ’ s cell had measured 28. 35 sq. m and contained twenty-one beds. They specified that it was equipped with toilets, a kitchenette, ventilation and natural light.", "20. At Giurgiu Prison the applicant had been detained successively in four cells, varying from 20. 35 sq. m to 20. 96 sq. m in size and containing space for six detainees. They contained individual beds, a table allowing the inmates to eat their meals together, three bedside tables, a small bench, a television socket and a shoe cupboard. They added that the cells all had toilets measuring 4. 03 sq. m, but did not specify whether these were included in the cell area. They stated, lastly, that the cells and the laundry provided to inmates were in good condition.", "..." ]

[ "THE LAW", "1. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "30. The applicant complained about his conditions of detention in the prisons where he had been detained. He relied on Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. Subject of the complaint", "31. In their supplementary observations on the complaint based on the conditions of detention in Giurgiu Prison the Government expressed doubts as to the reality of the complaint, submitting that the applicant had not substantiated it.", "32. The applicant repeated his complaint in that regard.", "33. The Court notes that the applicant was transferred to Giurgiu Prison on 30 January 2013 (see paragraph 12 above ) and that his application to the Court was communicated to the respondent Government six days later, namely on 5 February 2013 (see paragraph 4 above ). In his reply of 7 January 2014 to the Government ’ s observations the applicant, who was still in prison, said that “all the prisons” where he had been detained were overcrowded and emphasised the continuing nature of the situation.", "34. The Court therefore considers that the applicant did intend to complain about his conditions of detention in Giurgiu Prison, to which he was transferred shortly before his application was communicated.", "35. It also notes that, in his reply to the Government ’ s observations, the applicant raised new complaints based on certain particular aspects of his conditions of detention, relating, inter alia, to inappropriate conditions of transport and to frequent body searches. It observes that these complaints were raised after the case was communicated to the respondent Government. The Court has previously held that it is not required to rule on new complaints raised after communication and regarding which the Court has not considered it necessary to put additional questions to the Government ( see, in this regard, Enășoaie v. Romania, no. 36513/12, § 60, 4 November 201 4). Accordingly, the Court will confine its examination to the aspects of the conditions of detention described by the applicant in his application form, namely prison overcrowding and poor sanitary conditions.", "...", "C. Merits", "39. The applicant complained of prison overcrowding in the Bucharest police detention facility and in Bucharest ‑ Rahova, Mărgineni and Giurgiu Prisons. Referring to CPT reports and to reports by a Romanian non-governmental organisation, he alleged that the living space that had been available to him in those prisons had been far less than the standard recommended by the CPT. He added that there had been no hot water or heating, that the mattresses and bed linen had been dirty and the cells infested with rats, cockroaches and parasites.", "40. The Government submitted that the conditions of detention in question had not exceeded the threshold of severity required for Article 3 of the Convention to apply. With regard to Giurgiu Prison in particular, they stated that the living space available to the applicant had been between 3. 39 sq. m and 3. 49 sq. m.", "41. The Court reiterates that Article 3 of the Convention imposes a positive obligation on the authorities to ensure that a person is detained in conditions which are compatible with respect for their human dignity and that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention ( see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 141, 10 January 2012; and Enășoaie, cited above, § 46).", "42. The Court has recently reiterated the relevant principles, particularly those relating to prison overcrowding and to factors capable of offsetting the lack of personal space, in Muršić v. Croatia ([GC], no. 7334/13, §§ 96-141, 20 October 2016). It has held, inter alia, that when the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government, which can, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space ( ibid ., § 137). However, where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court ’ s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements ( ibid ., § 139).", "43. Applying those principles to the instant case, the Court notes that the applicant complained of overcrowding in the Bucharest police detention facility and in Bucharest- Rahova, Mărgineni and Giurgiu Prisons. It notes that, with regard to the first three prisons, the parties differ in their account both of the surface area of the cells in which the applicant was detained and the number of inmates (see paragraphs 13, 14 and 15 for the applicant ’ s version and paragraphs 17, 18 and 19 for the Government ’ s version). Be that as it may, the Court notes that, even according to the Government ’ s version, it can conclude that in all three prisons the living space available to the applicant was less than 3 sq. m.", "44. Apart from the problem of prison overcrowding, the applicant ’ s allegations of poor sanitary conditions tally with the Court ’ s conclusions in similar cases concerning Bucharest- Rahova Prison ( see Geanopol v. Romania, no. 1777/06, § 62, 5 March 2013, and Constantin Aurelian Burlacu v. Romania, no. 51318/12, § 27, 10 June 2014) and Mărgineni Prison ( see Iacov Stanciu v. Romania, no. 35972/05, 24 July 2012, § 175, and Necula v. Romania, no. 33003/11, § 57, 18 February 2014). With regard to the sanitary conditions in the Bucharest police detention facility, the applicant ’ s allegations are more than plausible and reflect the realities described by the CPT in its report following visits carried out in 2010 in the Bucharest police detention facility ....", "45. In these circumstances the Court cannot consider that, in respect of these three prisons, the Government have provided evidence capable of refuting the strong presumption of a violation of Article 3 as a result of affording personal space of less than 3 sq. m.", "46. The Court notes that the parties disagree with regard to Giurgiu Prison. The applicant stated that he had been detained in overcrowded cells, without, however, giving details about their dimensions, whereas the Government submitted that throughout his seven months ’ detention in that prison living space of between 3.39 sq. m and 3.49 sq. m had been available to the applicant (see paragraph 20 above). However, the Court observes that it has found a violation of Article 3 of the Convention in previous cases mainly on account of lack of individual space and poor sanitary conditions in Giurgiu Prison, during a period corresponding to when the applicant was imprisoned there ( see Marian Toma v. Romania, no. 48372/09, § 33, 17 June 2014, and Adrian Radu v. Romania, no. 26089/13, § 29, 7 April 2015). It concludes from this that, apart from prison overcrowding, the applicant also had to contend with other inappropriate physical conditions of detention in that prison, particularly regarding sanitary and hygienic requirements ( see Muršić, cited above, § 139).", "47. Accordingly, it considers that the conditions of detention in the prisons in question subjected the applicant to an ordeal of an intensity exceeding the unavoidable level of suffering inherent in detention.", "48. Having regard to the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION", "49. The applicant alleged that he had been discriminated against on grounds of sex because he had been refused the possibility of obtaining a stay of execution of his prison sentence, as under Article 453 § 1 b) of the CCP only convicted mothers of children under the age of one could seek a stay of execution. He relied on Article 14 of the Convention taken in conjunction with Article 8 and on Article 1 of Protocol No. 12 to the Convention.", "50. Since the Court is master of the characterisation to be given in law to the facts of the case (see, among other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I), it considers that this complaint must be examined only under Article 14 taken in conjunction with Article 8 of the Convention (see, mutatis mutandis and with regard to conjugal visits in prison, Laduna v. Slovakia, no. 31827/02, § 54, ECHR 2011, and Varnas v. Lithuania, no. 42615/06, § 110, 9 July 2013 ). Those provisions provide:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "...", "B. Merits", "1. Submissions of the parties", "60. The Government explained that at the material time the CCP provided for a stay of execution of sentence only in special circumstances personal to the person detained. They observed that the purpose of the statutory provisions in question was not to discriminate, but to take into consideration specific personal situations, including pregnancy of convicted female prisoners and the period preceding the child ’ s first birthday, which was a logical and coherent sequel to pregnancy. They based their submission on the special bonds that existed between the mother and child during the first months following birth. Referring to the Bangkok Rules adopted by the United Nations ..., they submitted that Article 453 of the CCP was in the same vein as international legal provisions designed to protect women and children. Accordingly, the situation of a woman with a child aged under one and that of a man with a child of the same age were not comparable.", "61. They also stated that the principles applicable under labour law, particularly those relating to parental leave, could not apply in the present case owing to the criminal nature of the legal provisions in question. They indicated that the right to parental leave was available to persons who had worked and contributed to the social-security system. In their submission, the possibility of obtaining a stay of execution of sentence was not comparable as it amounted to a measure designed to protect the newborn child ’ s best interests and, in that area, the State enjoyed a wide margin of appreciation. The aim of a criminal provision such as Article 453 of the CCP was neither to benefit convicted prisoners nor to reduce the unpleasantness inherent in a prison sentence.", "62. The Government indicated, lastly, that the domestic courts had examined the applicant ’ s requests and the supporting evidence submitted by him, given decisions that were not arbitrary and were duly reasoned and had found that the applicant ’ s family situation did not justify a stay of execution of sentence.", "63. Referring to the provisions of Article 453 § 1 b) of the CCP, the applicant submitted, for his part, that he had suffered unjustified discrimination. Basing his submission on the principle of equality between parents, he argued that the presence of the father in a newborn ’ s life was just as important as that of the mother, even where the mother breastfed her child. In his submission, the father could and should contribute to the daily care of the child and thus support the mother.", "2. The Court ’ s assessment", "a) Whether the applicant ’ s situation was comparable to that of a female prisoner with a child under the age of one", "64. The Court reiterates that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or comparable situations ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV). The requirement to demonstrate an analogous position does not require that the comparator groups be identical. It has to be established that the applicant, having regard to the particular nature of his complaint, was in a comparable situation to others treated differently ( see Clift v. the United Kingdom, no. 7205/07, § 66, 13 July 2010).", "65. In the instant case it is not disputed between the parties that Romanian law provided for a difference in treatment between two categories of prisoners with children under the age of one : women, who could apply for a stay of execution of sentence, and men, who were not eligible for such a measure. It remains to be determined whether, with regard to an application for a stay of execution of sentence under Article 453 § 1 b) of the CCP, the applicant was in a comparable situation to that of a female prisoner with a child aged under one.", "66. The Court has previously held, in an employment context, that men are in a comparable situation to women as regards parental leave and parental leave allowance ( see Petrovic, cited above, § 36, and Konstantin Markin v. Russia [GC], no. 30078/06, § 132, ECHR 2012 (extracts)). In those two cases the Court held, whilst being aware of the differences which might exist between mother and father in their relationship with the child, that as far as the role of taking care of the child during the period corresponding to parental leave was concerned ( which could extend to the child ’ s third birthday in the case of Konstantin Markin, cited above ), men and women were similarly placed.", "67. The Court cannot ignore the Government ’ s submission that a difference has to be drawn between the present case and cases concerning parental leave owing to the criminal nature of the measure in issue here and the margin of appreciation enjoyed by the State in implementing its criminal-law policies ( see paragraph 61 above ). It agrees with the Government that, as a stay of execution of a custodial sentence is a criminal-law measure, it is fundamentally different from parental leave, which comes under labour law.", "68. However, with regard to the question whether during the first year of the child ’ s life an imprisoned father is in a comparable situation to that of an imprisoned mother, the Court considers that the criteria which it set out in the cases of Petrovic and Konstantin Markin ( cited above ) are applicable to the instant case. As the Government themselves have conceded ( see paragraph 61 above ), the measure allowing a stay of execution of a custodial sentence has the primary aim of safeguarding the best interests of the child in order to ensure that it receives the appropriate attention and care during the first year of its life. Whilst there may be differences in their relationship with their child, both the mother and the father can provide this attention and care ( see, mutatis mutandis, Konstantin Markin, cited above, § 132). Furthermore, the Court observes that entitlement to a stay of execution of sentence continues up to the child ’ s first birthday and therefore extends beyond the period following the mother ’ s pregnancy and the birth.", "69. The Court therefore considers that, with regard to the facts of the case, the applicant can claim to be in a situation comparable to that of a female prisoner. The Government ’ s arguments based on the State ’ s margin of appreciation in implementing its criminal-law policies must rather be examined from the point of view of justification for the difference in treatment ( see paragraph 78 below ).", "b) Whether the difference in treatment was objectively justified", "70. The Court reiterates that a difference of treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, ECHR 2017, and the cases cited therein ).", "71. According to the Government, the legitimate aim pursued by the Romanian legislation in reserving exclusively to female prisoners the right to apply for a stay of execution of sentence until their child ’ s first birthday was to protect the best interests of the newborn child (see paragraph 61 above). The Government also referred to the special bonds between mother and child during the first months after the birth (see paragraph 60 above). In that connection the Court refers to its previous rulings, in cases concerning the right to respect for private and/or family life, that the child ’ s best interests must be paramount and that there is a broad consensus surrounding the idea that in all decisions concerning children their best interests must be a primary consideration ( see, mutatis mutandis, X v. Latvia [GC], no. 27853/09, §§ 95 ‑ 96, ECHR 2013, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 208, 24 January 2017). It also takes note of the various European and international instruments addressing the needs of women for protection against gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood ....", "72. The Court next reiterates having stated on many occasions that very weighty reasons have to be put forward to justify a difference of treatment on grounds of sex, and that references to traditions, general assumptions or prevailing social attitudes in a particular country cannot in themselves constitute justification for a difference in treatment on grounds of sex, any more than similar stereotypes based on race, origin, colour or sexual orientation (see, mutatis mutandis, Konstantin Markin, cited above, § 127; X and Others v. Austria [GC], no. 19010/07, § 99, ECHR 2013; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 77, ECHR 2013 (extracts); and Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014 ). It has also stated that the national authorities, whose duty it is also to consider, within the limits of their jurisdiction, the interests of society as a whole, enjoy broad discretion when they are asked to make rulings on sensitive matters such as penal policy ( see Khamtokhu and Aksenchik, cited above, § 85; see also Clift, cited above, § 73, and the cases referred to therein, and Costel Gaciu v. Romania, no. 39633/10, § 56, 23 June 201 5).", "73. In the present case the Court observes that the applicant sought a stay of execution of his sentence, arguing that he had a child aged under one, and that his application was dismissed by the domestic courts on the grounds that the statutory provision he relied on had to be interpreted strictly and he could not seek application of that provision by analogy (see paragraph 9 above). The Court considers that in the present case a number of factors have to be taken into consideration. Thus, as pointed out by the Government, it notes that female prisoners are not automatically granted a stay of execution of their sentence. It can be seen from the evidence produced by the parties that, when dealing with similar requests made by female prisoners, the domestic courts carried out a detailed assessment of the requests and dismissed them where the applicant ’ s personal situation did not justify a stay of execution of sentence ....", "74. The Court observes next that the Romanian criminal law in force at the material time provided all prisoners, regardless of sex, with alternative means of requesting a stay of execution of sentence. The courts could, in particular, consider whether any special circumstances of execution of the sentence were liable to have serious consequences for the prisoner and also for his family or employer .... The applicant availed himself of that legal possibility, moreover, but the domestic courts ruled that the difficulties referred to by him did not fall into the category of special circumstances provided for in Article 453 § 1 c) of the CCP ( see paragraphs 9 and 11 above ).", "75. It is true that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention ( see, mutatis mutandis, Petrovic, cited above, § 37).", "76. The Court also takes into consideration the Government ’ s submission that the aim of the statutory provisions in question was to take account of specific personal situations, including pregnancy of female prisoners and the period preceding the baby ’ s first birthday, having regard in particular to the special ties which exist between the mother and child during that period ( see paragraphs 60 and 71 above ). The Court considers that this aim can be regarded as legitimate for the purpose of Article 14 of the Convention and that the arguments advanced by the Government cannot be considered manifestly ill-founded or unreasonable. It is willing to consider that, in the specific area concerned by the present case, these considerations can constitute a sufficient basis for justifying the difference in treatment of the applicant.", "77. The Court accepts that motherhood has specific features which need to be taken into consideration, sometimes by means of protective measures. It notes for example that Article 4 § 2 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women expressly provides that adoption by States Parties of special measures aimed at protecting maternity shall not be considered discriminatory ... and that similar provision is made in norms of international law .... It considers that these findings are also valid where a woman is deprived of her liberty.", "78. In the light of the foregoing, the Court considers that, having regard to the broad margin of appreciation afforded to the respondent State in this area, there is a reasonable relationship of proportionality between the means employed and the legitimate aim pursued. The impugned exemption does not therefore constitute a prohibited difference in treatment for the purposes of Article 14 taken in conjunction with Article 8 ( see, mutatis mutandis, Khamtokhu and Aksenchik, cited above, § 87).", "79. Accordingly, the Court concludes that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8.", "..." ]

[ "the circumstances of the case", "6. Mr Antun Petrovic, an Austrian national, was born in 1950 and lives in Vienna.", "7. At the material time, he was a student and worked part time. His wife, who had already finished her university studies and was a civil servant in a federal ministry, gave birth on 27 February 1989. She carried on working while the applicant took parental leave to look after the child.", "8. On 25 April 1989 Mr Petrovic claimed a parental leave allowance ( Karenzurlaubsgeld ).", "9. On 26 May 1989 his claim was turned down by the local employment office ( Arbeitsamt ) on the ground that section 26(1) of the Unemployment Benefit Act 1977 (see paragraph 14 below) provided that only mothers could claim such an allowance when a child was born.", "10. On 14 June 1989 the applicant appealed against that decision to the Vienna Regional Employment Office ( Landesarbeitsamt ). He contended that that provision of the Unemployment Benefit Act, under which men were not entitled to a parental leave allowance, was discriminatory and, therefore, unconstitutional.", "11. On 4 July 1989 the Regional Employment Office dismissed the applicant’s appeal for the same reasons as the local employment office (see paragraph 9 above).", "12. On 18 August 1989 Mr Petrovic lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He again argued that section 26(1) of the Unemployment Benefit Act was unconstitutional, as it was inconsistent with the principle of equality and Article 8 of the Convention.", "13. On 12 December 1991, after considering the complaint in private, the Constitutional Court declined to accept it for adjudication on the ground that it did not have sufficient prospects of success.", "Referring to its case-law, the Constitutional Court held that section 26(1) did not infringe the applicant’s constitutional rights and was not contrary to Article 8 or Article 12 of the Convention. It added that even if regard was had to recent statutory amendments (section 26 of the Unemployment Benefit Act had been amended by a federal law of 12 December 1989 – see paragraph 15 below), the applicant’s complaint was unfounded, seeing that the legislature had a certain amount of time in which to adapt new rules to changes in society ( Anpassung gesetzlicher Vorschriften an geänderte Verhältnisse )." ]

[ "II. Relevant domestic law", "Legislation in force at the material time", "14. Under section 26(1) of the Unemployment Benefit Act 1977, mothers were entitled to a parental leave allowance provided that, following the birth of their child, they took up to one year’s parental leave and were eligible for maternity benefit ( Wochengeld – a welfare allowance payable to working mothers for a period of eight weeks after the birth).", "B. Subsequent legislation", "15. That section was amended by a federal law of 12 December 1989 (Official Gazette no. 651/1989), which came into force on 1 January 1990. It is now provided that a father may claim a parental leave allowance if he is in employment, has primary responsibility for looking after the child and the child lives under the same roof. In addition, the mother must either be entitled to parental leave as a result of the birth and have waived that right in whole or in part or, if not entitled to parental leave, be prevented by her work from looking after the child.", "However, the new rules apply only in respect of children born after 31 December 1989 and therefore do not cover the applicant, whose child was born on 27 February 1989.", "PROCEEDINGS BEFORE THE COMMISSION", "16. Mr Petrovic applied to the Commission on 3 August 1992. Relying on Article 8 of the Convention and on Article 14 taken together with Article 8, he complained of the refusal to grant him a parental leave allowance and of the discriminatory nature of that decision. He also alleged a breach of Article 13 of the Convention in that the Constitutional Court had refused to consider his appeal.", "17. On 5 July 1995 the Commission declared the application (no. 20458/92) admissible as to the complaint concerning the allegedly discriminatory refusal to grant him a parental leave allowance, and inadmissible as to the remainder.", "In its report of 15 October 1996 (Article 31), it expressed the opinion that there had been a violation of Article 14 taken together with Article 8 of the Convention (by twenty-five votes to five). The full text of the Commission’s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment. [4]", "FINAL SUBMISSIONS TO THE COURT", "18. In their memorial the Government asked the Court to", "“declare that Article 8 of the Convention is not applicable to the present case or, alternatively, to declare that Article 8 read in conjunction with Article 14 of the Convention was not violated”.", "19. The applicant requested the Court to", "“declare his application admissible, as the Commission has done, and to hold that in the instant case there has been a breach of Article 14 taken together with Article 8 [and] to award him just satisfaction in accordance with Article 50...”", "As to the Law", "Alleged violation of Article 14 of the Convention taken together with Article 8", "20. Mr Petrovic complained of the Austrian authorities’ refusal to award him a parental leave allowance under section 26(1) of the Unemployment Benefit Act 1977 (see paragraph 14 above), which provided that only mothers were entitled to receive such payments. He alleged that he was the victim of discrimination on grounds of sex in breach of Article 14 of the Convention taken together with Article 8, which provide:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex…”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "21. The Commission accepted the applicant’s submission but the Government contested it.", "A. Applicability of Article 14 taken together with Article 8", "22. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous –, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22, and the Van Raalte v. the Netherlands judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, p. 184, § 33).", "23. The applicant submitted that any financial assistance enabling parents to stop working in order to look after their children affected family life and therefore came within the scope of Article 8 of the Convention.", "24. The Government argued that, on the contrary, the parental leave allowance did not come within the scope of Article 8 since, firstly, that provision did not contain any general obligation to provide financial assistance to parents so that one of them could stay at home to look after their children and, secondly, the parental leave allowance was a matter of welfare policy which was not to be included within the concept of family life.", "25. The Court therefore has to determine whether the facts of the present case come within the scope of Article 8 and, consequently, of Article 14 of the Convention.", "26. In this connection the Court, like the Commission, considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.", "27. Nonetheless, this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.", "28. The Court has said on many occasions that Article 14 comes into play whenever “the subject-matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed” (see the National Union of Belgian Police v. Belgium judgment of 27 October 1975, Series A no. 19, p. 20, § 45), or the measures complained of are “linked to the exercise of a right guaranteed” (see the Schmidt and Dahlström v. Sweden judgment of 6 February 1976, Series A no. 21, p. 17, § 39).", "29. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14 – taken together with Article 8 – is applicable.", "B. Compliance with Article 14 taken together with Article 8", "30. Under the Court’s case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, the Karlheinz Schmidt judgment cited above, pp. 32–33, § 24, and the Van Raalte judgment cited above, p. 186, § 39).", "31. In the applicant’s submission, the different treatment of mothers and fathers with respect to granting a parental leave allowance was not justified at all. The allowance was not intended to protect mothers as it was not paid until eight weeks after the birth and until the right to receive maternity benefit had been exhausted, but to assist parents – whether mothers or fathers – who wished to take leave to look after their very young children.", "32. The Government, on the other hand, submitted that the fact that there was no common European standard in the matter meant that the Austrian legislature’s decision to pay a parental leave allowance only to mothers fell within the margin of appreciation left to the Contracting States in respect of welfare policy. Furthermore, the provisions in question reflected the outlook of society at the time, according to which the mothers had the primary role in looking after young children.", "33. The Commission considered that the lack of a common standard with regard to particular welfare benefits reflected the substantial diversity of social-security schemes in the member States, but could not absolve those States which had adopted a special scheme of parental leave allowances from granting those benefits without discrimination. No objective and reasonable grounds such as to justify the difference in treatment had been made out. The applicant had accordingly been discriminated against in the exercise of his right to respect for his family life as guaranteed by Article 8 of the Convention.", "34. The Court notes that at the material time parental leave allowances were paid only to mothers, not fathers, once a period of eight weeks had elapsed after the birth and the right to a maternity allowance had been exhausted (section 26(1) of the Unemployment Benefit Act 1977 – see paragraph 14 above).", "35. It was not disputed that that amounted to a difference in treatment on grounds of sex.", "36. Maternity leave and the associated allowances are primarily intended to enable the mother to recover from the fatigue of childbirth and to breastfeed her baby if she so wishes. Parental leave and the parental leave allowance, on the other hand, relate to the period thereafter and are intended to enable the beneficiary to stay at home to look after the infant personally. While aware of the differences which may exist between mother and father in their relationship with the child, the Court starts from the premise that so far as taking care of the child during this period is concerned, both parents are “similarly placed”.", "37. It is true that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe and very weighty reasons would be needed for such a difference in treatment to be regarded as compatible with the Convention (see, for example, the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 21–22, § 67, and the Van Raalte judgment cited above, p. 186, § 39 in fine ).", "38. However, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, among other authorities, the Rasmussen v. Denmark judgment of 28 November 1984, Series A no. 87, p. 15, § 40).", "39. It is clear that at the material time, that is at the end of the 1980s, there was no common standard in this field, as the majority of the Contracting States did not provide for parental leave allowances to be paid to fathers.", "40. The idea of the State giving financial assistance to the mother or the father, at the couple’s option, so that the parent concerned can stay at home to look after the children is relatively recent. Originally, welfare measures of this sort – such as parental leave – were primarily intended to protect mothers and to enable them to look after very young children. Only gradually, as society has moved towards a more equal sharing between men and women of responsibilities for the bringing up of their children, have the Contracting States introduced measures extending to fathers, like entitlement to parental leave.", "41. In this respect Austrian law has evolved in the same way, the Austrian legislature enacting legislation in 1989 to provide for parental leave for fathers. In parallel, eligibility for the parental leave allowance was extended to fathers in 1990 (see paragraph 15 above).", "It therefore appears difficult to criticise the Austrian legislature for having introduced in a gradual manner, reflecting the evolution of society in that sphere, legislation which is, all things considered, very progressive in Europe.", "42. There still remains a very great disparity between the legal systems of the Contracting States in this field. While measures to give fathers an entitlement to parental leave have now been taken by a large number of States, the same is not true of the parental leave allowance, which only a very few States grant to fathers.", "43. The Austrian authorities’ refusal to grant the applicant a parental leave allowance has not, therefore, exceeded the margin of appreciation allowed to them. Consequently, the difference in treatment complained of was not discriminatory within the meaning of Article 14." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1981 and lives in the Ventspils district.", "A. The applicant ’ s imprisonment and the applicable prison regime", "6. On 6 December 2001 the applicant was convicted of kidnapping, aggravated murder and aggravated extortion and sentenced to twenty years ’ imprisonment. This judgment was upheld at two levels of appeal and took effect in 2002.", "7. In accordance with section 50 4 (1) of the Sentence Enforcement Code ( Latvijas Sodu izpildes kodekss ), the applicant was placed at the maximum ‑ security level in a closed prison.", "8. On an unspecified date the applicant was transferred to the medium ‑ security level of that closed prison.", "9. According to the applicant, in 2008 he realised that there was a difference in the respective treatment of male and female inmates with regard to the execution of custodial sentences. Male inmates who had been convicted of serious crimes started serving their sentences in closed prisons, while female inmates who had been convicted of the same crimes started serving their sentence in partly-closed prisons. As the applicant considered that this had a notable impact on restrictions of various prisoners ’ rights, he lodged complaints about this issue with several State institutions.", "10. On 30 September 2008 the applicant was informed that his father had died. On 2 October 2008 he requested permission to leave prison in order to attend his father ’ s funeral. On the same day the prison director replied that he had no authority to allow the request, as the applicant was serving his sentence at the medium- security level of a closed prison. Under the Sentence Enforcement Code only prisoners serving their sentence at the medium - or minimum - security level in partly-closed prisons were eligible for such leave.", "11. In the years 2012 - 2015 the applicant was granted one prison ‑ leave day per year. The case file contains no information as to the type of prison and security level in which the applicant served his sentence during this time.", "12. On 11 September 2015 the applicant was conditionally released.", "B. Review of the applicant ’ s complaints", "1. Ministry of Justice", "13. On 1 July 2008 the Ministry of Justice examined the applicant ’ s complaint about the difference in treatment between convicted men and women. It referred to sections 50 4 (1) and 50 5 ( 1 ) of the Sentence Enforcement Code and observed that the legislature had chosen to create different legal frameworks in respect of sentence execution for men and women. The Ministry of Justice concluded that there was no discrimination on the grounds of sex because the rights of both male and female inmates were restricted, and both sexes were deprived of their liberty.", "2. The Ombudsperson", "14. On 25 October 2010 the Ombudsperson concluded the examination of the applicant ’ s complaint about the refusal to allow him to attend his father ’ s funeral. He observed that closed prisons hosted male convicts who had been sentenced to deprivation of liberty for having committed serious or especially serious crimes, as well as convicts who had been moved from partly-closed prisons for grave or systematic breaches of the regime under which they had been held. In closed prisons convicts were subjected to tightened security and maximum surveillance. It followed that the persons placed in those prisons were particularly dangerous to the society. Hence, the restriction imposed on the applicant was proportionate and necessary in a democratic society.", "3. The Constitutional Court", "15. On 9 July 2008 the applicant lodged a constitutional complaint, arguing that section 50 4 (1) of the Sentence Enforcement Code was discriminatory on the grounds of sex, in breach of Article 91 of the Constitution. As women convicted of the same crimes started serving their sentence in partly-closed prisons, they were entitled to more and longer visits, more phone calls and could progress to more lenient security levels more rapidly. In addition, women could be granted leave from prison for up to seven days per year, whereas no such right was provided for men.", "16. On 29 July 2008 the Constitutional Court, relying on section 20(6) of the Law on the Constitutional Court, declined to institute proceedings. It stated that the legal reasoning included in the complaint was evidently insufficient for the claim to be allowed ( acīmredzami nepietiekams prasījuma apmierināšanai ). In particular, the applicant had failed to specify why the difference in treatment between men and women should not be acceptable.", "17. On 7 August 2008 the applicant lodged a second constitutional complaint, adding that men and women who were convicted of serious and especially serious crimes were in the same circumstances in that they were both imprisoned. Yet, despite the prohibition of discrimination requiring men and women to be treated equally, their rights were restricted to a different extent. The applicant also pointed out that within the context of discrimination the burden of proof was shifted – namely, after a person had demonstrated a difference in treatment, it fell for the respondent to show that this difference had not amounted to discrimination.", "18. On 5 September 2008 the Constitutional Court again declined to institute proceedings. With respect to the first sentence of Article 91 of the Constitution, which addressed the principle of equality, the Constitutional Court pointed out that the following criteria had to be examined – the existence of comparable groups, a difference in treatment between those groups, and a lack of objective and reasonable justification for that difference in treatment. As the legal reasoning advanced by the applicant was based on the assumption that men and women who had committed similarly grave crimes were in comparable situations, the Constitutional Court considered this reasoning evidently insufficient for the claim to be allowed. With respect to the prohibition of discrimination enshrined in the second sentence of Article 91 of the Constitution, the Constitutional Court pointed out that the applicant had failed to specify the human right in conjunction with which the discrimination complaint had been made. Thus, in relation to this part of the application, legal reasoning had not been provided ( nav sniegts juridiskais pamatojums ) and the formal requirements of a constitutional complaint had not been met. In so far as relevant, the Constitutional Court relied on sections 20(5)(3) and 20(6) of the Law on the Constitutional Court.", "19. In a third constitutional complaint of 20 October 2008, the applicant added that on 2 October 2008 he had been refused permission to leave prison to attend his father ’ s funeral. He had thereby been discriminated against on the basis of sex, as women in his situation would have been able to attend the funeral. In support of his discrimination-related complaint the applicant referred to the right to private life, right to family life, and freedom of expression.", "20. On 21 November 2008 the Constitutional Court declined to institute proceedings, invoking section 20(6) of the Law on the Constitutional Court. It noted that the application contained no reasoning as to why men and women who had been convicted of serious and especially serious crimes and given prison sentences would need to be subjected to the same rules of sentence enforcement – namely, how men and women were in comparable situations. On those grounds, the legal reasoning included in the constitutional complaint was held to be evidently insufficient for the claim to be allowed.", "II. Rules applicable to special categories", "A. Prisoners under sentence", "Guiding principles", "...", "Rule 89", "1. The fulfilment of these [guiding] principles requires individualization of treatment and for this purpose a flexible system of classifying prisoners in groups. It is therefore desirable that such groups should be distributed in separate prisons suitable for the treatment of each group.", "2. These prisons do not need to provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. ... ”", "35. The UN Rules for the Treatment of Women Prisoners and Non ‑ custodial Measures for Women Offenders, adopted by the General Assembly on 21 December 2010 ( “ the Bangkok Rules ” ), supplement the Standard Minimum Rules for the Treatment of Prisoners by addressing the distinctive needs of women prisoners. The relevant parts of the Bangkok Rules provide:", "“ I. Rules of general application", "1. Basic principle", "[ Supplements rule 2 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) ]", "Rule 1", "In order for the principle of non-discrimination, embodied in rule 6 of the Standard Minimum Rules for the Treatment of Prisoners to be put into practice, account shall be taken of the distinctive needs of women prisoners in the application of the Rules. Providing for such needs in order to accomplish substantial gender equality shall not be regarded as discriminatory.", "...", "II. Rules applicable to special categories", "A. Prisoners under sentence", "1. Classification and individualization", "[Supplements rules 93 and 94 of the Nelson Mandela Rules]", "...", "Rule 41", "The gender-sensitive risk assessment and classification of prisoners shall:", "(a) Take into account the generally lower risk posed by women prisoners to others, as well as the particularly harmful effects that high security measures and increased levels of isolation can have on women prisoners;", "...", "Social relations and aftercare", "[Supplements rules 106 to 108 of the Nelson Mandela Rules]", "...", "Rule 45", "Prison authorities shall utilize options such as home leave, open prisons, halfway houses and community-based programmes and services to the maximum possible extent for women prisoners, to ease their transition from prison to liberty, to reduce stigma and to re-establish their contact with their families at the earliest possible stage. ”", "B. Council of Europe", "36. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules ( which replaced Recommendation No. R (87) 3 on the European Prison Rules ), which took into account the developments in penal policy, sentencing practice and the overall management of prisons in Europe. The relevant parts of the amended European Prison Rules read as follows:", "“ Part I", "Basic principles", "1. All persons deprived of their liberty shall be treated with respect for their human rights.", "2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.", "3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.", "...", "Scope and application", "...", "13. These rules shall be applied impartially, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "...", "Part II", "Conditions of imprisonment", "Allocation and accommodation", "...", "18.10 Accommodation of all prisoners shall be in conditions with the least restrictive security arrangements compatible with the risk of their escaping or harming themselves or others.", "...", "Contact with the outside world", "...", "24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.", "24.6 Any information received of the death or serious illness of any near relative shall be promptly communicated to the prisoner.", "24.7 Whenever circumstances allow, the prisoner should be authorised to leave prison either under escort or alone in order to visit a sick relative, attend a funeral or for other humanitarian reasons.", "...", "Women", "34.1 In addition to the specific provisions in these rules dealing with women prisoners, the authorities shall pay particular attention to the requirements of women such as their physical, vocational, social and psychological needs when making decisions that affect any aspect of their detention.", "...", "Part IV", "Good order", "...", "Security", "51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.", "...", "51.3 As soon as possible after admission, prisoners shall be assessed to determine:", "a. the risk that they would present to the community if they were to escape;", "b. the risk that they will try to escape either on their own or with external assistance.", "51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.", "51.5 The level of security necessary shall be reviewed at regular intervals throughout a person ’ s imprisonment.", "...", "Part VIII", "Objective of the regime for sentenced prisoners", "102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.", "Implementation of the regime for sentenced prisoners", "...", "103.6 There shall be a system of prison leave as an integral part of the overall regime for sentenced prisoners. ”", "37. The relevant parts of the Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules read :", "“ Rule 24.5 places a positive duty on the prison authorities to facilitate links with the outside world. One way in which this can be done is to consider allowing all prisoners leave from prison in terms of Rule 24.7 for humanitarian purposes. The ECtHR has held that this must be done for the funeral of a close relative, where there is no risk of the prisoner absconding ( Ploski v. Poland, No. 26761/95, judgment of 12/11/2002). Humanitarian reasons for leave may include family matters such as the birth of a child. ”", "38. The relevant parts of Recommendation No. R (82) 16 of the Committee of Ministers to member States on prison leave, adopted on 24 September 1982, read :", "“The Committee of Ministers ...", "Considering that prison leave contributes towards making prisons more humane and improving the conditions of detention;", "Considering that prison leave is one of the means of facilitating the social reintegration of the prisoner;", "...", "Recommends the governments of member states:", "1. to grant prison leave to the greatest extent possible on medical, educational, occupational, family and other social grounds;", "2. to take into consideration for the granting of leave:", "- the nature and seriousness of the offence, the length of the sentence passed and the period of detention already completed,", "- the personality and behaviour of the prisoner and the risk, if any, he may present to society,", "- the prisoner ’ s family and social situation, which may have changed during his detention,", "- the purpose of leave, its duration and its terms and conditions;", "3. to grant prison leave as soon and as frequently as possible having regard to the aforementioned factors;", "4. to grant prison leave not only to prisoners in open prisons but also to prisoners in closed prisons, provided that it is not incompatible with public safety;", "...", "9. to inform the prisoner, to the greatest extent possible, of the reasons for a refusal of prison leave; ... ”", "39. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( hereinafter “the CPT ” ) following a visit to Latvia that took place from 5 to 15 September 2011 published a report to the Latvian Government, dated 27 August 2013. The relevant parts of that report read :", "“47. Before setting out the delegation ’ s findings regarding the establishments visited, the CPT would like to raise one issue of a more general nature concerning the regime applied to prisoners.", "The Latvian Code of Execution of Sentences provides that all prisoners in closed and semi-closed prisons shall be subject to the progressive sentence execution regime, irrespective of the duration of the sentence imposed. Prisoners held in closed prisons serve their sentences in three consecutive regime levels: low, medium and high. The law requires that such prisoners serve at least a quarter of their sentence on the low regime level and demonstrate good behaviour in order to qualify for the medium level. After having served at least a quarter of their sentence on the medium regime level, they may be further transferred to the high regime level ... It is noteworthy that prisoners on the low regime level inter alia have generally limited work opportunities and fewer possibilities for maintaining contact with the outside world ...", "The CPT recalls that “imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” Moreover, although it is for the judicial authority to determine the appropriate length of sentence for a given offence, prison authorities should be responsible for determining security and regime requirements, on the basis of professionally agreed criteria and individual assessments of prisoners. In this context, it is difficult to justify a prisoner being required to serve a minimum part of the prison sentence in a specific regime level (low or medium). In the CPT ’ s view, progression from one regime level to another should be based on the prisoner ’ s attitude, behaviour, participation in activities (educational, vocational, or work ‑ related), and in general adherence to reasonable pre-established targets set out in a sentence plan. For this purpose, regular individual reviews should be carried out.", "The CPT invites the Latvian authorities to review the relevant legislation and practice in the light of the above remarks. ” [ emphasis and footnotes omitted ]", "40. Following the next visit to Latvia that took place from 12 to 22 April 2016 the CPT in its report to the Latvian Government, dated 29 June 2017, referred back to the findings it had made during the visit of 2011. It reiterated its reservations about the “progressive sentence execution” system and emphasised that the progression from one regime level to another should be determined by prison authorities, based on professionally agreed criteria and individual assessments." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitution", "21. The relevant provision of the Constitution of the Republic of Latvia ( Satversme ), reads :", "Article 91", "“All persons in Latvia shall be equal before the law and the courts. Human rights shall be exercised without discrimination of any kind.”", "B. The Sentence Enforcement Code", "22. Section 50 3 at the material time provided that both closed and partly ‑ closed prisons had three security levels (regimes under which sentences were to be served ) – maximum, medium and minimum. Under section 50 1, both at the material time and at the time of adoption of this judgment, all prisoners who are to serve their sentence in closed or partly-closed prisons start serving their sentence at the maximum- security level of the respective prison. They are all subjected to the “progressive sentence execution” system, under which prisoners can be transferred to more lenient prison regimes following an individual assessment, but only after having served a certain pre - set proportion of their sentence under the stricter regimes.", "23. Section 50 4 (1) sets out two groups of convicts who serve their sentence in closed prisons: men sentenced to deprivation of liberty for the commission of serious or especially serious crimes and convicts who have been transferred from partly-closed prisons owing to gross or systematic regime violations. Prisoners placed in closed prisons have to serve no less than one fourth of the adjudged sentence at the maximum- security level. Following this time they may be transferred to the medium- security level, where they have to serve no less than another fourth of the adjudged sentence before becoming eligible for a transfer to the minimum security level. From the minimum security level prisoners may be transferred to a partly-closed prison or conditionally released before the completion of the sentence.", "24. Section 50 5 (1) lists ten different groups of convicts who serve their sentence in partly-closed prisons, including women serving sentences for intentionally committed crimes. At the relevant time this provision provided that when beginning a sentence a convicted person had to serve no less than one fifth of the adjudged sentence at the maximum- security level. Subsequently, he or she had to serve no less than a further fifth at the medium - security level but the remaining part could be served at the minimum security level. From the minimum security level a convicted person could be transferred to an open prison or conditionally released before the completion of the sentence.", "25. Prisoners serving their sentence in closed prisons, regardless of the applicable prison regime, as well as prisoners serving their sentence in partly-closed prisons at the maximum- security level, were not eligible for prison leave. With respect to prisoners held at the medium - and minimum ‑ security level in partly-closed prisons, section 50 5 stated that they had the right, with the permission of their prison governor, to temporarily leave the prison for up to seven days a year, or up to five days on account of the death or life-threatening illness of a close relative.", "C. The Criminal Law", "26. Section 7(1) of the Criminal Law ( Krimināllikums ) provides that on the basis of their degree of severity criminal offences are divided into misdemeanours, less serious crimes, serious crimes and especially serious crimes.", "27. At the relevant time section 7(4) provided that serious crimes were intentional offences for which the punishment provided in the Criminal Law was deprivation of liberty for a period of between five and ten years. Section 7(5) stated that especially serious crimes were intentional offences for which the punishment was deprivation of liberty for more than ten years, life imprisonment or the death penalty.", "D. Law on the Constitutional Court", "28. Section 17(1)(11) of the Law on the Constitutional Court provides that any person who considers that his or her fundamental rights have been breached has the right to submit an application to the Constitutional Court.", "29. Section 18 (1) lists the elements that have to be included in an application to the Constitutional Court. “ Legal reasoning ” is listed as one of such elements.", "30. Section 19 2 of the Law on the Constitutional Court provides:", "“(1) Any person who considers that a legal provision that is not in compliance with a provision of a superior legal force has infringed his or her fundamental rights under the Constitution may lodge a constitutional complaint (an application) with the Constitutional Court.", "...", "(6) In addition to the elements required under section 18(1) of the present Law, a constitutional complaint (an application) must contain reasoning concerning:", "(i) the violation of the applicant ’ s fundamental rights, [as] provided in the Constitution, and;", "(ii) the exhaustion of all ordinary remedies or the fact that no such remedies exist. ... ”", "31. Section 20 at the relevant time provided:", "“(1) An application shall be examined and the decision to institute proceedings or to decline to institute proceedings shall be taken by a panel comprising three judges.", "...", "(5) In examining applications, the panel shall have the right to decline to institute proceedings if: ...", "3) the application does not comply with the requirements specified in section 18 or sections 19-19 2 of this Law;", "...", "(6) When examining a constitutional complaint (an application) the panel may also decline to institute proceedings when the legal reasoning included in the complaint is evidently insufficient [to justify] allowing the claim.”", "E. Practice of the Constitutional Court concerning institution of constitutional proceedings", "32. In the judgment of 22 February 2002 (case no. 2001-06-03) the Constitutional Court held :", "“2.2. In accordance with section 19 2 (1) of the Law on the Constitutional Court a constitutional complaint may be lodged by a person who “considers” [that a legal provision has infringed his or her fundamental rights]. The law gives prominence to the view of the person, and not that of the court, about the violation of the fundamental rights. The law requires the person to be of the view that the fundamental rights granted to him or her under the Constitution have been breached. However, this requirement has to be seen together with section 19 2 (6) of the Law on the Constitutional Court, which requires this view to be substantiated. Hence, in order to institute proceedings on the basis of the constitutional complaint it has to be established that the application contains sufficient legal reasoning substantiating this “view ”; nonetheless, the Panel of the Constitutional Court is not required to carry out a full assessment of this “view ”. The Panel of the Constitutional Court has a right to decline to institute proceedings only if the “legal reasoning substantiating the view” is evidently insufficient for the claim to be allowed; however, it has the obligation to do so only when the legal reasoning has not been provided at all.", "...", "The purpose of section 20(6) of the Law on the Constitutional Court is to save the Constitutional Court the “idle work” of dealing with manifestly unsubstantiated complaints. In situations when some legal reasoning is included but there are doubts as to whether it is not evidently insufficient for allowing the claim, the said provision has to be interpreted in accordance with its purpose.”", "III. RELEVANT INTERNATIONAL LAW AND PRACTICE", "A. United Nations", "33. The set of norms and principles established within the United Nations concerning the treatment and protection of detainees is summarised in Khoroshenko v. Russia ([GC], no. 41418/04, §§ 69-75, ECHR 2015). International standards on the protection of women prisoners are described in Khamtokhu and Aksenchik v. Russia ([GC], nos. 60367/08 and 961/11, §§ 27-31, 24 January, 2017).", "34. In addition, the relevant parts of the UN Standard Minimum Rules for the Treatment of Prisoners, as revised by the General Assembly on 17 December 2015 ( “ the Nelson Mandela Rules ” ), provide :", "“ I. Rules of general application", "Basic principles", "...", "Rule 2", "1. The present rules shall be applied impartially. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status. The religious beliefs and moral precepts of prisoners shall be respected.", "2. In order for the principle of non-discrimination to be put into practice, prison administrations shall take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings. Measures to protect and promote the rights of prisoners with special needs are required and shall not be regarded as discriminatory.", "...", "Separation of categories", "Rule 11", "The different categories of prisoners shall be kept in separate institutions or parts of institutions, taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment; thus:", "(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate;", "...", "Notifications", "...", "Rule 70", "The prison administration shall inform a prisoner at once of the serious illness or death of a near relative or any significant other. Whenever circumstances allow, the prisoner should be authorized to go, either under escort or alone, to the bedside of a near relative or significant other who is critically ill, or to attend the funeral of a near relative or significant other.", "...", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, READ IN CONJUNCTION WITH ARTICLE 8", "41. The applicant complained about difference in treatment between men and women convicted of the same crimes in relation to the respective applicable prison regimes, in particular, with regard to the right to prison leave, which had led to a refusal to attend his father ’ s funeral. He argued that this was contrary to Article 14 of the Convention, read in conjunction with Articles 5, 8 and 10 of the Convention.", "42. Having regard to the circumstances of the case and bearing in mind that it has the power to decide on the characterisation to be given in law to the facts of a complaint (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), the Court considers it appropriate to examine the applicant ’ s grievances from the standpoint of Article 14 of the Convention, taken in conjunction with Article 8. Those provisions read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "43. In addition, the Court notes that in cases arising from individual applications it is not the Court ’ s task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances (see, for example, Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003-VIII, compare also Van der Ven v. the Netherlands, no. 50901/99, § 53, ECHR 2003 ‑ II). Accordingly, in the present case the Court is not called upon to compare the entirety of the prison regime under which the applicant was serving his sentence with the prison regime that was applicable to women convicted of the same crimes. Instead, it has to address the issue that has affected the applicant directly and personally and has to determine whether the refusal to entertain his request to attend his father ’ s funeral constituted discrimination on the basis of sex prohibited under Article 14 of the Convention, read in conjunction with Article 8 of the Convention.", "A. The Government ’ s preliminary objection", "1. Arguments of the parties", "44. The Government submitted that the Court could not examine the case before the Constitutional Court had made an assessment as to whether section 50 4 of the Sentence Enforcement Code complied with the Convention. The Constitutional Court was the effective domestic remedy created for this particular purpose, was capable of providing redress and was available to the applicant both in law and in practice. Even so, the applicant ’ s constitutional complaints had been rejected for lack of sufficient legal reasoning. The applicant had been aware of the mandatory requirements of a constitutional complaint and could not bypass the obligation to exhaust the available domestic remedies by deliberately and consistently submitting incomplete and insufficiently reasoned constitutional complaints. Moreover, the applicant had not been precluded from remedying the deficiencies identified by the Constitutional Court and lodging another constitutional complaint.", "45. Furthermore, the applicant had not challenged before the Constitutional Court the fact that the Sentence Enforcement Code did not allow compassionate leave for inmates serving their sentence in closed prisons. In particular, the applicant had failed to challenge the provision specifying the differences in rights and obligations between convicts serving their sentences in different regimes.", "46. The applicant submitted that he had tried, within the limits of his resources and abilities, to defend his rights before the Constitutional Court. He asserted that an ordinary citizen could not enjoy the protection of the Constitutional Court, its standards being enormously high for a person without a legal education. Drafting a constitutional complaint was a difficult task even for legal professionals; thus, it was not fair to blame the applicant for his inability to properly perform in this sophisticated legal field.", "2. The Court", "47. The Court reiterates that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The rule of exhaustion of domestic remedies is therefore a fundamental part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Chiragov and Others v. Armenia [GC], no. 13216/05, § 115, ECHR 2015).", "48. While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that complaints intended to be subsequently brought before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see Akdivar and Others v. Turkey, 16 September 1996, §§ 66 and 69, Reports of Judgments and Decisions 1996 ‑ IV). Non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of his or her failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the appeal (see Gäfgen v. Germany [GC], no. 22978/05, § 143, ECHR 2010).", "49. In the present case the parties agree that the alleged interference with the applicant ’ s rights emanated from a domestic legal provision. As the Court has consistently held, where the source of the alleged breach of a Convention right is a provision of Latvian legislation, proceedings should, in principle, be brought before the Constitutional Court prior to being brought before the Court (see, for example, Grišankova and Grišankovs v. Latvia (dec.), no. 36 117/02, ECHR 2003 ‑ II (extracts), and Larionovs and Tess v. Latvia (dec.), no. 4 5520/04, §§ 142-143 and 167, 25 November 2014).", "50. The Court observes that the applicant lodged three constitutional complaints challenging section 50 4 (1) of the Sentence Enforcement Code. In his third constitutional complaint the applicant emphasised that this provision had resulted in his inability to attend his father ’ s funeral. Hence, in relation to the complaint under the Court ’ s review (see paragraph 43 above) it is the applicant ’ s third constitutional complaint that is relevant for the purposes of exhaustion of domestic remedies. The Constitutional Court declined to institute proceedings, stating that his complaint lacked legal reasoning. Accordingly, it falls to be determined whether the applicant discharged the obligation to exhaust the pertinent domestic remedy.", "51. Firstly, the Court observes that under the Law on the Constitutional Court there are two possible grounds for declining to institute proceedings when the required legal reasoning is considered to be lacking. The Constitutional Court may conclude that an applicant has not complied with the formal requirements for submitting a constitutional complaint (including the obligation to provide legal reasoning) and invoke section 20(5)(3) of that Law. Alternatively, it may find that the legal reasoning submitted is evidently insufficient for the claim in question to be allowed and rely on section 20(6) ( see paragraph 31 above) – a rejection ground that appears to have a discretionary element (see paragraph 32 above). In light of the above, the Court attaches importance to the fact that the third constitutional complaint, just like the previous two, was rejected on the second ground (see paragraphs 16, 18 and 20 above ). By contrast, in those cases where the Court has accepted a Government ’ s non ‑ exhaustion plea owing to insufficiently reasoned constitutional complaints, the Constitutional Court had concluded that the relevant complaint had been incompatible with section 19² of the Law on the Constitutional Court ( see Gubenko v. Latvia (dec.), no. 6674/06, §§ 9 and 2 5, 3 November 2015, and Svārpstons and Others v. Latvia (dec.), no. 14976/05, §§ 26 and 51, 6 December 2016 ).", "52. Secondly, in his third constitutional complaint the applicant expressly complained of discrimination on the grounds of sex in that men were subjected to a stricter prison regime and greater limitation of their rights than women. He emphasised that this distinction applied to men and women who had been convicted of the same crimes and given the same punishment and therefore concerned groups of people who were in “comparable situations”. He argued that this resulted in unjustified difference with respect to men and women ’ s respective right to prison leave on compassionate grounds, as owing to the prison regime they were subjected to male prisoners were not even eligible for such leave (see paragraphs 15, 17 and 19 above). Thus, the Court considers that in his third constitutional complaint the applicant expressly and in substance raised the discrimination complaint that he has now brought before the Court ( compare Schwarzenberger v. Germany, no. 75737/01, § 31, 10 August 2006, and Luig v. Germany (dec.), no. 28782/04, 25 September 2007).", "53. Thirdly, with regard to the Government ’ s argument that the applicant could have lodged another complaint after remedying the deficiencies, the Court notes that in relation to all three complaints the Constitutional Court considered that the applicant had failed to sufficiently substantiate his claim that men and women prisoners were in comparable situations, also after he emphasised that the difference in treatment concerned men and women who had been convicted of the same crimes and had been given the same sentences. Thus, the Court considers that through the reasons given in its decisions, notably, when rejecting the third constitutional complaint, the Constitutional Court, at least partly, expressed its position on the substance of the applicant ’ s discrimination complaint (compare Gäfgen, cited above, § 145, and Jalloh v. Germany (dec.), no. 54810 /0 0, 2 6 October 2004).", "54. Lastly, in relation to the Government ’ s argument that the applicant had failed to challenge before the Constitutional Court the provision specifying the differences in rights and obligations between convicts serving their sentences in different regimes, the Court observes that the applicant does not complain about the fact that under different prison regimes prisoners ’ rights are restricted to a varied extent. Likewise, he does not complain that prisoners serving their sentence under a specific prison regime do not have a right to prison leave. Instead, his complaint concerns the fact that men and women who are convicted of the same crimes start serving their sentences under different prison regimes, leading to differences in the restrictions placed on their rights, particularly, a blanket ban on the male prisoner ’ s right to request prison leave. Hence, the Court is not convinced that challenging before the Constitutional Court the provision setting out the rights and obligations applicable to certain prison regimes would have been an effective remedy for the specific complaint that the applicant has brought before the Court.", "55. In the light of the above, the Court concludes that the applicant provided the national authorities with the opportunity, which is in principle intended to be afforded to Contracting States under Article 35 § 1 of the Convention, to put right the violations alleged against them ( compare Muršić v. Croatia [GC], no. 7334/13, § 72, 20 October 2016 ). Hence, the Government ’ s objection of non-exhaustion of domestic remedies must be dismissed.", "B. Admissibility and merits of the complaint", "1. Arguments of the parties", "(a) The applicant", "56. The applicant argued that he had been discriminated against on the grounds of his sex because he, as a man convicted of serious and particularly serious crimes, started serving his sentence in a closed prison. Women convicted of the same crimes started serving their sentence in partly-closed prisons. Accordingly, male and female prisoners who had been convicted of the same crimes and given the same sentences were subjected to different prison regimes, and the rights of these two groups of prisoners were restricted to a different extent. Most notably, prisoners serving their sentence in closed prisons were not eligible for prison leave, while prisoners in partly-closed prisons, like female prisoners in a situation similar to the applicant ’ s, did have such a right.", "57. Further to the Government ’ s observations, the applicant argued that the fact women generally committed fewer crimes could not justify stricter prison conditions for men. Likewise, there was no justification for concluding that he, as a man, would be less willing or should be less entitled to meet his family members and other relatives. Every person ’ s attitude to family values was individual and by no means dependent upon their sex. Besides, more opportunities of meeting family members and other relatives were conducive to prisoners ’ social reintegration.", "58. The applicant emphasised that his sex had been the only reason for his not being allowed to attend his father ’ s funeral, as the refusal had been based solely on the prison regime under which he had been serving his sentence. No other ground had played any role whatsoever, since he had committed no breaches of that regime that could have affected this decision. This was demonstrated by the fact that later, when he had been subjected to a different prison regime, he had been granted short - term prison leave four times. On those occasions he had returned to the prison in due time and had caused no harm to society or any of its members.", "59. The applicant submitted that no restitution was possible for the fact he had been unable to attend his father ’ s funeral and comfort his relatives. Women prisoners, by contrast, were allowed short-term prison leave not only to attend relatives ’ funerals but also to visit family members in the event of a terminal illness. The applicant submitted that, had he been a woman, he would have been able to visit his father while he had still been in hospital.", "60. Lastly, the applicant argued that Latvia had taken no steps to implement Committee of Ministers Recommendation No. R ( 82) 16 on prison leave (see paragraph 38 above).", "(b) The Government", "61. The Government agreed that the refusal to grant the applicant prison leave in order for him to attend his father ’ s funeral had interfered with his right to family life, as guaranteed under Article 8 of the Convention. This interference had, nonetheless, been based on law and had pursued the aim of furthering the interests of public safety, preventing crime and protecting the rights or freedoms of others. According to the Government, this restriction had been based on an individual assessment, as after an inmate had served a certain proportion of the sentence, a special body could decide to transfer him to a lower- security prison. It also drew the Court ’ s attention to the opinion of the Ombudsperson emphasising the dangerous nature of the inmates to whom this restriction applied (see paragraph 14 above). Furthermore, in the light of the cases of Laduna v. Slovakia ( no. 31827/02, ECHR 2011 ) and Dickson v. the United Kingdom ( [GC], no. 44362/04, ECHR 2007 ‑ V ) a wide margin of appreciation applied in questions of prisoners, penal policy and social strategy and, according to Khoroshenko v. Russia ( [GC], no. 41418/04, ECHR 2015 ), the gravity of a sentence could be tied, a least to some extent, to a type of a prison regime. Hence, the Government considered that this interference had corresponded to a pressing social need and had been proportionate to the legitimate aim, thereby being justified under Article 8 § 2 of the Convention.", "62. With respect to Article 14 of the Convention the Government submitted that the situation of male and female convicts serving a sentence for having committed serious or especially serious crimes was not sufficiently similar for them to be compared with each other. Moreover, the Bangkok Rules recognised women prisoners as one of the vulnerable groups that had specific needs and requirements. The principle of equality did not negate the possibility or the necessity to organise different regimes in respect of the execution of criminal sentences which would fully take into account the differences among various groups of convicts.", "63. The Government argued that there was unanimity between penal researchers, scientists and national policy makers that male and female convicts were different in most aspects and that identically tailored approaches did not facilitate the resocialisation of female convicts. Prison regimes which were designed to accommodate a male prison population were, in general, much stricter owing to potential risks and threats to prison security and staff, as well as the risk of inter-prisoner violence and escape attempts. All those risks were sufficiently lower or absent in the case of the female inmate population. Female convicts, in general, were less violent and less prone to aggression towards other inmates or prison staff. Hence, there was no objective need to subject female inmates to conditions which were inherently stricter, yet completely unnecessary.", "64. In Latvia this issue historically had been addressed by creating three different and distinct prison regimes, as well as a separate prison facility ‑ a partly- closed prison, accommodating only female convicts. A mixed approach whereby male and female convicts were held separately within the same facility had been proved to be harmful towards female convicts because, as a result, they served their sentences under a stricter regime than it would be objectively necessary.", "65. The Government argued that differences in prison regimes allowed gender distinctions in the statistical structure of crimes to be taken into account. In Latvia, female convicts made up 6. 2% of the total number of convicts. Approximately 70% of the crimes committed by females were non-violent, and only approximately 10% of violent crimes were committed by women. As in Europe in general, in Latvia the majority of women sent to prison were convicted of relatively minor offences and did not represent a danger to the community.", "66. The Government also contended that the Latvian penal system treated in a similar fashion male and female inmates that fell within comparable groups. In particular, male and female inmates serving their sentences at the medium- security level were both granted the same privileges. This was confirmed by the fact that following the applicant ’ s transfer to a medium prison level he had been granted prison leave four times.", "67. Lastly, the Government submitted that the key issue in the present case was not the alleged discrimination on the grounds of sex but rather the fact that the Sentence Enforcement Code did not envisage a possibility of granting compassionate prison leaves for inmates serving their sentence in closed prisons at the maximum- security level. Even so, such a complaint had not been communicated to the Government. Simultaneously, the Government argued that in his reply to the Government ’ s observations the applicant had tried to present his complaint from the perspective of Article 8 of the Convention. In the Government ’ s view, that constituted an attempt to arbitrarily expand the scope of the applicant ’ s complaint, as communicated to the Government.", "2. The Court", "(a) The scope of the case", "68. The Court has held that the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant ’ s complaint or “claim” (see Radomilja and Others, cited above, §§ 108-09 and 120- 22). Allegations made after the communication of the case to the respondent Government can only be examined by the Court if they constitute an elaboration of the applicant ’ s original complaint to the Court (see Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).", "69. The Court observes that in his application form the applicant complained of discrimination on the grounds of sex with regard to the applicable prison regime, as a consequence of which he was not allowed to attend his father ’ s funeral. In his reply to the Government ’ s observations the applicant submitted further considerations concerning the allegedly discriminatory nature of the lack of the right to prison leave and the resulting refusal to attend his father ’ s funeral. The Court considers that the applicant ’ s submissions further elaborate his complaint raised under Article 14 of the Convention, read in conjunction with Article 8, as it was communicated to the Government, and do not constitute an attempt to raise a new complaint.", "(b) Admissibility", "( i ) Whether the facts of the case fall “within the ambit” of Article 8", "70. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. For Article 14 to become applicable, it suffices that the facts of the case fall “within the ambit” of another substantive provision of the Convention or its Protocols. Hence, the Court must determine at the outset whether the facts of the case fall within the general scope of Article 8 (see Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts) ).", "71. The Court has already considered complaints about refusals to allow a detainee ’ s request to visit an ailing relative or attend a relatives ’ funeral in a number of cases and has invariably found such refusals to constitute an interference in the right to family life guaranteed under Article 8 of the Convention (see Lind v. Russia, no. 25664/05, § 92, 6 December 2007; Schemkamper v. France, no. 75833/01, § 31, 18 October 2005; Płoski v. Poland, no. 26761/95, § 32, 12 November 2002; and Giszczak v. Poland, no. 40195/08, §§ 36-37, 29 November 2011).", "72. Accordingly, the Court finds that the applicant ’ s complaint about the alleged discrimination in the applicable prison regime resulting in a refusal to attend his father ’ s funeral falls within the ambit of Article 8 of the Convention.", "( ii ) Whether the alleged difference in treatment related to any of the grounds in Article 14", "73. Article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or personal characteristic, or “status”, by which individuals or groups are distinguishable from one another. It lists specific grounds which constitute “status; ” however, the list is illustrative and not exhaustive (see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 61, 24 January 2017 ).", "74. The applicant contends that he has been discriminated against on the grounds of sex, as male and female inmates are subjected to different prison regimes resulting in a differentiation on the basis of sex with regard to the right to prison leave. The Court notes that “sex” is explicitly mentioned in Article 14 as a prohibited ground of discrimination.", "( iii ) Conclusion", "75. Hence, Article 14 of the Convention taken in conjunction with Article 8 is applicable in the present case.", "76. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "(c) Merits", "( i ) Whether the applicant was in an analogous or relevantly similar position to female convicts", "77. The Government ’ s position before the Court was based on an assertion that men and women prisoners were not sufficiently similar to be compared with each other.", "78. The Court has consistently held that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. The requirement to demonstrate an analogous position does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see, for example, Fábián v. Hungary [GC], no. 78117/13, § 113, ECHR 2017 (extracts) ).", "79. In the case of Khamtokhu and Aksenchik (cited above) the male applicants, inter alia, complained about discrimination on the grounds of sex, as life imprisonment could not be imposed on women. The Court found that the applicants were in an analogous situation to that of all other offenders, including female offenders, who had been convicted of the same or comparable offences ( see Khamtokhu and Aksenchik, cited above, § 68; compare also Laduna, cited above, §§ 56-58 and Clift v. the United Kingdom, no. 7205/07, §§ 67-68, 13 July 2010 ).", "80. In the present case the difference in treatment concerns men and women who were convicted of serious or especially serious crimes. Thus, as in Khamtokhu and Aksenchik, it relates to persons who committed the same or comparable offences and were all sentenced to deprivation of liberty (contrast Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999, where the Court found that unfavourable treatment of persons convicted of terrorist offences was a distinction made not between different groups of people, but between different types of offence). As to the nature of the complaint the Court observes that it relates to the manner in which the applicable prison regime affects the restrictions on prisoners ’ family life, in particular, with regard to their right to prison leave on compassionate grounds. Accordingly, the complaint concerns an issue that is of equal relevance to all prisoners (compare Varnas v. Lithuania, no. 42615/06, § 113, 9 July 2013 ).", "81. Thus, the Court finds that in the light of the nature of the particular complaint the applicant can claim to be in an analogous position to that of women prisoners convicted of the same or comparable offences.", "( ii ) Whether the difference in treatment was objectively justified", "82. Not every difference in treatment will amount to a violation of Article 14. The Court has consistently held that a difference in treatment is discriminatory if it has no objective and reasonable justification – in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, for example, Konstantin Markin, cited above, § 125 ).", "83. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of that margin of appreciation will vary according to the circumstances, the subject matter and the background of the case (see Khamtokhu and Aksenchik, cited above, § 77). The national authorities, whose duty it is also to consider the interests of society as a whole, should enjoy broad discretion when they are asked to make rulings on sensitive matters such as penal policy ( ibid., § 85). As pointed out by the Government, the Court has indeed accepted that, in principle, a wide margin of appreciation applies in questions of prisoners and penal policy (see Alexandru Enache v. Romania, no. 16986/12, § 78, 3 October 2017, and Varnas, cited above, § 115 ).", "84. On the other hand, the Court has repeatedly held that the advancement of gender equality is today a major goal in the member States of the Council of Europe, and very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, origin, colour or sexual orientation (see Konstantin Markin, cited above, § 127; Khamtokhu and Aksenchik, cited above; § 78, and Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, § 46, ECHR 2017 ).", "85. From the arguments they put forward it can be seen that, according to the Government, the difference in treatment pursued the aim of protecting women prisoners from being adversely affected by identically tailored approaches that would not sufficiently take the specific needs of women prisoners into account.", "86. The Court agrees that a difference in treatment that is aimed at ensuring substantive equality may be justified under Article 14 of the Convention. The Court is mindful of the various European and international instruments drafted to ensure that the distinctive needs of women prisoners are adequately taken into account (see paragraphs 33 - 37 above). Also the Court has acknowledged that providing for the distinctive needs of women prisoners, particularly in relation to maternity, in order to accomplish substantial gender equality should not be regarded as discriminatory (see Alexandru Enache, cited above, § 77 ). Accordingly, certain differences in the prison regimes that are applicable to men and women are acceptable and may even be necessary in order for substantive gender equality to be ensured. Nonetheless, also within the context of the penitentiary system and prison regimes a difference in treatment that is based on sex has to have a reasonable relationship of proportionality between the means employed and the aim sought to be realised ( ibid., § 70 ).", "87. The Court turns to the Government ’ s claim that the Latvian penitentiary system treats comparable groups similarly, as male and female prisoners who serve their sentences at the medium- security level are granted the same privileges (see paragraph 66 above). The Court notes that this claim disregards the fact that the gravity of the regime is determined not only by the security level but also by the type of the prison. Male and female prisoners start serving their sentences in different types of prison, resulting in varied degrees of restrictions of their rights at the medium-security level. In particular, the Sentence Enforcement Code provides that all male prisoners convicted of serious and particularly serious crimes must be placed in closed prisons at the maximum - security level (see paragraphs 22 - 23 above). Furthermore, no prisoner serving his sentence in a closed prison is entitled to prison leave (see paragraph 25 above). They would acquire such a right only after being moved to a partly-closed prison ‑ a transfer they may become eligible for only after serving one half of the imposed sentence (see paragraph 23 above). In contrast, women prisoners who have been convicted of the same crimes are placed in this type of prison from the very beginning of their sentence (see paragraph 24 above).", "88. The aforementioned is confirmed by the applicant ’ s experience, as at the time that he submitted his request for prison leave to attend his father ’ s funeral he had already been moved to the medium - security level of the closed prison (see paragraphs 8 and 10 above). His request was not entertained exactly on the grounds of being placed at the medium- security level of the closed prison. Neither the domestic authorities, nor the Government have suggested that there was any other consideration that had informed this decision. Meanwhile, women prisoners in analogous circumstances, that is to say, convicted of the same crimes, given the same sentence, having served the same proportion of the sentence, and having progressed to the medium- security level, would have been eligible for such prison leave.", "89. In justifying this distinction the Government argued that women prisoners, in general, were less violent and less prone to aggression towards other inmates or prison staff, whereas men prisoners were more predisposed to inter-prisoner violence and attempted prison-breaks and they posed higher threats to prison security and staff. The Government have not, however, submitted any data supporting this claim. In particular, the Court lacks information concerning the conduct of the relevant groups of prisoners, namely, men and women convicted of serious or especially serious crimes, with regard to the compliance with prison regime and, even more importantly, their conduct when released on prison leave.", "90. Be it as it may, the Court is not persuaded that even if this claim had been supported by data, it would be sufficient to justify this distinction. Finding otherwise would be tantamount to concluding that all male prisoners, when compared to women who have committed exactly the same offences, are so much more dangerous that no individualised assessment is even purposeful. Such an approach would be incompatible with the case-law of the Court emphasising the need for an individualised risk assessment of all detainees with regard to prison leave (see paragraph 91 below ). The Court also refers here to CPT ’ s repeated criticism of the Latvian “progressive sentence execution” system under which all prisoners are required to spend a predetermined minimum amount of time at both the maximum- and the medium-security level since it is the prison authorities who should be responsible for determining security and regime requirements, on the basis of professionally agreed criteria and individual assessments of prisoners (see paragraphs 39 and 40 above).", "91. The Court fully shares the Government ’ s proposition that there is no objective need to subject women prisoners to conditions that are stricter than necessary. It emphasises, however, that this principle is equally applicable to male prisoners. The Court notes that while Article 8 of the Convention does not guarantee a detained person an unconditional right to leave prison in order to attend the funeral of a relative, the domestic authorities are called upon to assess each such request on its merits (see Giszczak, cited above, § 36, and Płoski, cited above, § 38). The Court has found a violation of that Article where the domestic authorities had failed to carry out a balancing exercise between the competing interests or had based their refusal solely on the grounds that the domestic law did not provide for such a right (see Császy v. Hungary, no. 14447/11, § 20, 21 October 2014, and Feldman v. Ukraine (no. 2), no. 42921/09, § 35, 12 January 2012).", "92. Finally, the Court emphasises that, although there may be several legitimate penological grounds for a person ’ s detention, the emphasis in European penal policy is now on the rehabilitative aim of imprisonment (see Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, §§ 111 and 115, ECHR 2013 (extracts)). While this principle applies regardless of the crime committed or the duration of the sentence imposed (ibid ., §§ 111- 18 ), it also applies irrespective of the prisoner ’ s sex. The Court underlines that maintenance of family ties is an essential means of aiding social reintegration and rehabilitation of all prisoners, regardless of their sex (compare Khoroshenko, cited above, § 144). Furthermore, also prison leave is one of the means of facilitating social reintegration of all prisoners (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 ‑ VIII, and Schemkamper, cited above, § 31).", "93. In the light of that, and not discounting a possibility that certain divergences in the approaches towards male and female prisoners may be justified, the Court does not consider that a blanket ban for men to leave the prison, even for attending a funeral of a family member, was conducive to the goal of ensuring that the distinctive needs of women prisoners are taken into account.", "( iii ) Conclusion", "94. Having found that the refusal to entertain the applicant ’ s request to attend his father ’ s funeral on the basis of the prison regime to which he was subjected owing to his sex had no objective and reasonable justification, the Court concludes that this treatment was discriminatory.", "95. There has accordingly been a violation of Article 14 of the Convention, read in conjunction with Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "96. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "97. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. He submitted no claim with respect to pecuniary damage.", "98. The Government argued that the applicant had failed to prove existence of a non-pecuniary damage and a causal link between the damage claimed and the violation of the Convention alleged. They also considered that a finding of a violation would constitute a sufficient compensation. In any event, the Government considered that the cases of Płoski (cited above), Watros v. Poland ((dec.), no. 13384/10, 31 January 2012) and Pielak v. Poland ((dec.) [Committee], no. 9409/09, 25 September 2012) could serve a reference to determine the right amount of the compensation.", "99. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 3 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "100. The applicant claimed no costs or expenses.", "101. Hence, the Court makes no award under this head.", "C. Default interest", "102. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Introduction", "5. On 19 September 1974 the Council of Ministers of the Republic of Cyprus approved the introduction of a scheme of aid for displaced persons and war victims. Under the scheme, displaced persons were entitled to refugee cards. The holders of such cards were (and still are) eligible for a range of benefits including housing assistance. For the purposes of the scheme the term “displaced” was determined as being any person whose permanent home was in the areas occupied by the Turkish armed forces, in an inaccessible area, or in an area which had been evacuated to meet the needs of the National Guard.", "6. To implement the scheme, the Director of the Care and Rehabilitation of Displaced Persons Service (“SCRDP”) issued a circular on 10 September 1975. The circular provided that non-displaced women whose husbands were displaced could be registered on the refugee card of their husbands. It also provided that children whose fathers were displaced could be registered on the refugee card of their fathers (see paragraph 20 below). No provision was made for the children of displaced women to be registered on the refugee cards of their mothers.", "7. Although the term “displaced” was extended by the Council of Ministers on 19 April 1995 (see paragraphs 23 and 24 below), at the time of the facts giving rise to the present application it had not been extended to allow children whose mothers were displaced but whose fathers were not, to qualify for refugee cards.", "B. The applicant ’ s application for a refugee card", "8. The applicant ’ s mother has been a refugee since 1974. Her mother is the holder of a refugee card.", "9. In September 2002, the applicant married and began looking for a house for her family in Kokkynotrimithia. She wished to obtain housing assistance and so, on 27 February 2003, applied to the Civil Registry and Migration Department of the Ministry of the Interior for a refugee card with occupied Skylloura, the place from which her mother was displaced, as her place of displacement.", "10. By letter dated 6 March 2003 the request was rejected on the basis that the applicant was not a displaced person because, while her mother was a displaced person, her father was not.", "C. First instance proceedings before the Supreme Court ( revisional jurisdiction) : recourse no. 436/03", "11. The applicant filed a recourse before the Supreme Court challenging the above decision. She claimed, inter alia, that the decision was in violation of the principle of equality safeguarded by Article 28 of the Constitution and in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. She claimed that it also breached Article 13 of the Convention.", "12. A single judge of the Supreme Court dismissed the recourse on 12 May 2004, finding that, on the basis of the relevant case-law, the extension of the applicable criteria so as to cover the children of displaced women was not possible. The question of extending the term “displaced” to cover the children whose mothers were displaced but whose fathers were not had been repeatedly discussed before the House of Representatives ’ Committee for Refugees. A proposal to change the law to that effect had been placed before the Committee but was never approved. Furthermore, because of the consequences which would ensue from such an extension of the term “displaced”, the Minister of the Interior had referred the question to the Council of Ministers for its consideration and, on 19 April 1995, the Council of Ministers had decided not to extend the term in this manner (see the relevant domestic law and practice set out at paragraphs 23 and 24 below).", "D. Appeal proceedings before the Supreme Court: appeal no. 3830", "13. On 23 June 2004 the applicant filed an appeal before the Supreme Court.", "14. By judgment of 3 March 2006 a five-judge panel of the Supreme Court dismissed the appeal and upheld the findings of the first instance court.", "15. The Supreme Court held as follows:", "“ [In the present appeal] an attempt was made to demonstrate that we must depart from the above [first instance] decision, since the Supreme Court can, in the present case, proceed to the so-called “ extended interpretation ” and, by invoking the principle of equality, widen the application of the criterion to the children of displaced mothers as well.", "...", "The proposed extension of the plan was placed before the Council of Ministers in Proposal no. 1852/92, which was submitted by the Ministry of the Interior to amend the criteria for providing assistance to displaced persons. However the decision taken refers only to amendments which do not concern the present case. Despite the fact that, on 19 April 1995, by decision no. 42.465 of the Council of Ministers, further amendments were made by which the term ‘ displaced ’ was extended and now includes other categories of those entitled, the point which concerns us in this case remains unchanged.", "...", "In accordance with the case-law ( Dias United Publishing Co Ltd v. The Republic, [ 1996 ] 3 A.A.D. 550), the non-existence of a legislative provision cannot be remedied by judicial decision because, in such a case, the constitutional control which the Supreme Court exercises would be turned into a means of reshaping or supplementing the legislation.", "...", "We have given this matter very serious consideration in view also of the position that, in the case of an arrangement favouring one sex only, the extended application of the provision also finds support in European Community Law ...", "However this may be, we cannot depart from the prevailing case-law. Dias United Publishing Co Ltd v. The Republic, cited above, fixed the framework of the jurisdiction of the Supreme Court. The Supreme Court has, in accordance with Article 146 (4) of the Constitution, the power to uphold in full or in part the decision appealed against or to declare the act or omission invalid. It does not have jurisdiction to legislate by extending legislative arrangements which did not meet with the approval of parliament. This would conflict with the principle of the separation of powers. We note that the House of Representatives cannot of its own accord enact legislation which would incur expenditure. If the House of Representatives, the constitutionally appointed legislative organ, does not have such a right, the Supreme Court has even less of a right.", "In agreement with the principles set out above, we conclude that the Supreme Court does not have the competence to proceed to an extended application of a legislative arrangement.”", "16. The same issue of the non-extension of refugee cards to the children of displaced women was also considered by the Supreme Court in Anna Giagkozi v. the Republic (case no. 291/2001). That challenge was rejected at first instance on 30 April 200 2 ((2002) 4 A.A.D. 405), the court finding that, while it was difficult to understand why there should not be uniform treatment between the children of displaced men and displaced women, on the basis of Dias United, cited above, it was unable to grant the relief sought. This was because Ms Giagkozi was, in effect, asking the court to extend the relevant legal framework so that the benefits provided to children of displaced fathers would be provided to children of displaced mothers. An appeal against that judgment was dismissed on 3 March 2006 by the same bench which dismissed the present applicant ’ s appeal (the appeal judgment in Giagkozi is reported at ( 2006) 3 Α.Α.D. 85)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution of Cyprus", "17. The right to equality before the law, administration and justice is set out in Article 28 of the Constitution which provides as follows, in so far as relevant:", "“1. All persons are equal before the law, the administration and justice, and are entitled to equal protection thereof and treatment thereby.", "2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution.", "... ”", "18. This provision has independent existence and therefore can be raised alone or in conjunction with another right protected by the Constitution.", "B. Relevant decisions, circulars and provisions concerning “displaced” persons and refugee cards", "19. The scheme of aid for displaced and other affected persons referred to in paragraph 5 above was introduced by the Council of Ministers on 19 September 1974 by decision no. 13.503. For the purposes of the scheme the term “displaced person ” was defined by the Council of Ministers as meaning any person whose permanent residence was in the occupied areas, or in an inaccessible area or in an area which had been evacuated to meet the needs of the National Guard.", "20. The circular which was issued by the Director of Care and Rehabilitation of Displaced Persons Service (“SCRDP”) on 10 September 1975 reads in relevant part :", "“(a) When a displaced woman marries a non-displaced man, the husband and children cannot be registered or considered as displaced persons;", "(b) When a displaced man marries a non-displaced woman, the non-displaced wife will be registered on the refugee card of the husband. The children will be considered as refugees and will be registered on the refugee card of their father.”", "21. On 3 May 1979, by decision no. 17.918, the Council of Ministers decided that families who had lost privately - owned residences in the occupied areas and did not own any other property in the free areas until the 16 August 1974, would be provided with a “special certification”. Based on that special certification the family would be allowed a one-off payment of housing assistance (i.e. the payment would be made to the family but the children of such families would not be entitled themselves to apply for such housing assistance).", "22. On 3 May 1994, the Council of Ministers decided that families whose home or property was in the occupied areas but who, at the time of the invasion, were resident in the free areas for professional reasons would have the same treatment as persons with refugee cards. The same year, the Council of Ministers also decided that assistance for this category of families would be limited to original displaced persons and not their children. On the other hand, those who had only been given “special confirmation” that they owned a house in the occupied areas but had no other links with the area would continue to be treated in accordance with the Council of Minister ’ s decision of 3 May 1979 (see paragraph 21 above). By contrast, those given such special confirmation who : (i) owned a house in the occupied areas and (ii) did in fact have other links with those areas would be given the same treatment as the holders of refugee cards, meaning the extension of refugee rights to their children.", "23. On 19 April 1995, the Council of Ministers decided to extend the term “displaced” to those persons who, before the Turkish invasion, had their ordinary residence in the free areas and/or had been resident abroad because of their work or other obligations but whose principal residence and property were in the occupied areas (decision of the Council of Ministers, no. 42.465).", "24. However, on the same date the Council of Ministers, decided that the term “displaced” should not be extended to children whose mother was displaced but whose father was not. The reasons given by the Council of Ministers were :", "“(a) The actual percentages of displaced persons will be altered.", "(b) According to a relevant estimate by the Statistical and Research Department, the percentage of displaced persons, in such a case, would gradually rise to 80% of the total population of Cyprus.", "(c) The number of electors in the occupied Electoral Districts would increase disproportionately, with a corresponding increase-decrease in parliamentary seats by Electoral District.”", "25. At the time of the applicant ’ s request for a refugee card, section 119 of the Census Bureau Law ( Ο περί Αρχείου Πληθυσμού Νόμος του 2002 N. 141(I )/2002 ) provided that children whose father was displaced were considered to have their permanent residence in the occupied areas and thus, for the purposes of the law, were considered displaced from the same place as their father.", "C. The criteria for housing assistance for the holders of refugee cards at the time of the applicant ’ s request for a refugee card", "26. At the time of the present applicant ’ s request for a refugee card (February 2003), there were four categories of housing assistance available to the holders of refugee cards : (i) being allocated housing in one of the settlements built by the State for refugees; (ii) a grant towards the cost of building a residence on State- owned land; (iii) a similar grant for building a residence on privately- owned land; and (iv) a grant for buying a flat or residence.", "27. In 2003, persons seeking assistance under (iii) or (iv) were not subject to a means test based on their income (Council of Minister ’ s decision 50.669 of 24 November 1999). They were, however, required not to have previously obtained a loan with subsidised interest by the State on the basis of other housing schemes (decision 16.296 of 27 October 1977).", "28. According to information provided by the Government, in 2003 the basic amount of housing assistance that could be granted under (iii) or (iv) ranged from CYP 8,520 (EUR 14,557) to CYP 11,540 (EUR 19,717), with appropriate uplifts when larger accommodation was necessary for larger families. It is to be noted that, at the time of her application for a refugee card, the applicant had recently married and did not appear to have any children.", "D. Relevant changes to the law after the lodging of the present application", "29. The Census Bureau ( Amendment ) (No. 2) Law of 2013 (N. 174(I)/2013) amended section 11 9 of the Census Bureau Law to include children whose mother was displaced within the definition of displaced persons. The relevant part of section 119 now reads :", "“ Children whose father is a displaced person are considered to have their permanent residence in the occupied areas and consequently, for the purposes of the present Law, they are considered to be displaced persons from the same place from which their father comes.", "Children of only a displaced mother are considered to have their permanent residence in the occupied areas and are displaced persons from the same place from which their mother comes, exclusively for the purposes of any state aid or other benefit which is provided for displaced persons, without their place of origin being connected with any voting rights or electoral process. ”", "30. Changes have also been made to eligibility criteria for housing assistance. Those criteria, which had previously been contained in decisions of the Council of Ministers (see for instance paragraph 27 above), were placed on a statutory footing by the Granting of Housing Assistance to Displaced Persons, Affected and Other Persons Law 2005 (“the 2005 Law”). Section 2 of the Law defined “displaced person” as the holder of a refugee card issued by the Civil Registry and Migration Department of the Ministry of Interior. Under section 7 displaced persons were eligible for housing assistance.", "31. In 20 11, the Granting of Housing Assistance to Displaced Persons, Affected and Other Persons (Amendment ) Law 2011 amended sections 2 and 7 of the 2005 Law to allow the granting of housing assistance to persons whose mother was displaced. However, this was limited to the first two categories of housing assistance set out at paragraph 26 above ( being allocated housing in one of the settlements built by the State for refugees or being given a grant towards the cost of building a residence on State-owned land).", "32. The children of displaced women became eligible for the remaining two categories of housing assistance in 2013 when further amendments to the 2005 Law were made by the Granting of Housing Aid to Displaced Persons, Affected and Other Persons (Amendment ) Law of 2013.", "33. Since 2013, applicants wishing either to buy a flat or residence or to build a residence on privately-owned land have been subject to a means test based on their family ’ s annual income. After allowing for deductions of EUR 1,500 for each dependent child, this should not exceed EUR 45,000 (EUR 20,000 for single persons). An applicant whose income falls above these thresholds is not entitled to housing assistance. If the applicant ’ s income falls below these thresholds, the precise amount of housing assistance he or she is entitled to receive is calculated with reference to both the size of the person ’ s family and the family ’ s annual income.", "E. Relevant commentary on the refugee assistance scheme", "34. On 18 May 2006, further to a series of complaints, the Commissioner for Administration (hereinafter “the Ombudsman”) published a report on the inability of the children of displaced women to obtain refugee cards and thus access to the refugee assistance scheme. The Ombudsman considered that allowing children of male displaced persons to acquire the status of displaced persons, while excluding children of female displaced persons merely on grounds of gender, was both contrary to the principle of equality and discriminatory. The Ombudsman recommended that the relevant authorities should consider applying the same rules to both sexes.", "35. The pre-2013 scheme also attracted critical comment from the Committee on the Elimination of Discrimination against Women (CEDAW: Concluding Comments on Cyprus, 30 May 2006, at paragraph 32); the Committee on Migration, Refugees and Population of the Parliamentary Assembly of the Council of Europe ( “ Europe ’ s forgotten people: protecting the human rights of long-term displaced persons ”, report of 8 June 2009, at paragraph 70); and the United Nations High Commissioner for Human Rights (report to the United Nations Human Rights Council on the question of human rights in Cyprus, 2 March 2010, at paragraphs 19 and 20).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION WHEN TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1", "36. The applicant complained first that the refusal of the authorities to grant her a refugee card breached her property rights under Article 1 of Protocol No. 1. She maintained that having a refugee card provided the holder with a number of benefits such as financial aid, scholarships, free education, medical treatment, housing assistance, and help in the form of clothing and footwear. She had applied for a refugee card with a view to seeking housing assistance.", "37. Second, she complained that denying her a refugee card on the basis that she was the child of a displaced woman rather than a displaced man was discriminatory on the grounds of sex and thus in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.1.", "38. These Articles provide :", "Article 14 (prohibition of discrimination)", "“ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ”", "Article 1 of Protocol No. 1 (protection of property)", "“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "39. The Government contested those arguments.", "40. Since the alleged discriminatory treatment of the applicant lies at the heart of her application, the Court considers it appropriate to examine first the complaint made under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 ( see, mutatis mutandis, Ponomaryovi v. Bulgaria, no. 5335/05, § 45, ECHR 2011 with further references therein).", "B. Admissibility", "41. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "C. Merits", "1. The parties ’ observations", "(a) The Government", "(i) The background to, and extension of, the scheme", "42. The Government submitted that the reasons for restricting the refugee assistance scheme to children whose fathers were displaced, were to be found in the socio - economic situation and social concepts of 1975 when the male was the family breadwinner. The economic effects of displacement were far more acute for the children of male displaced persons who would bear the responsibility for their children ’ s upbringing and education, and for providing them with financial assistance in their adult lives. On the other hand, the children of female displaced persons would not be financially dependent on their mothers : when those women married, their children would be provided for by their non-displaced father who had not suffered the financial effects of displacement. Moreover, it had been necessary for the State to give priority to persons most in need, taking into account the availability of funds for catering for the variety of needs of those affected by the Turkish invasion.", "43. The refugee assistance scheme had been reviewed and extended since its introduction. This had always been done subject to the availability of funds. In 1979, the Council of Ministers decided that refugee families would be eligible for housing aid (see paragraph 21 above). In 1994 it decided that families whose home or property was in the occupied areas but who, at the time of the invasion, were resident in the free areas for professional reasons would have the same treatment as persons with refugee cards (see paragraph 22 above). The same year, the Council of Ministers also decided that state assistance for this category of families would be limited to original displaced persons and not their children (ibid.). Those decisions had been the result of prior consultation with the relevant Ministry, the Pancyprian Committee of Refugees (Παγκύπρια Επιτροπή Προσφύγων) and members of the House of Representatives representing all political parties.", "44. There had been further, extensive debate on the issue in the House of Representatives, which culminated in two legislative proposals for amending the scheme. The first of the two proposals had two limbs: (i) extending the scheme to include those who, while living in the free areas, had the greater part of their immovable property in the occupied area; and (ii) extending it to children whose mother was displaced. The second of the two proposals was to extend the scheme to cover all persons from the occupied areas who had their permanent home in the free areas for professional reasons. At the time the Government considered that both of these proposals would have had considerable financial consequences. On a basis of estimates prepared in 1994, extending eligibility for refugee cards to children whose displaced parent was the mother would mean that the percentage of the population eligible would rise to 40.7% of the total population by the end of 1992, 51. 2% by 2007 and 80 % by 2047.", "45. In light of the above, an agreement was reached between the Government and the relevant Committee of the House of Representatives to extend eligibility for refugee cards to those who had only been given “special confirmations” and not refugee cards in 1994 (see paragraph 22 above). This was enacted via the Council of Minister ’ s decision of 19 April 1995 (see paragraph 23 above).", "46. The scheme was again reviewed in 2007 in light of further proposals in the House of Representatives: one to extend eligibility for a refugee card to children whose mother was displaced, until such children reached eighteen years of age; another to extend the right to apply for housing assistance to children whose only displaced parent was their mother. On this occasion, the Government brought forward legislation which amended the Census Bureau Law of 2002 to allow children whose father or mother was a displaced person the right to apply and obtain a certificate recognising them as “displaced persons by descent”. The holder of such certificate was not rendered eligible for any grant or other benefit.", "47. At the time of the submission of the Government ’ s initial observations (June 2008), the scheme was under further review, involving various ministries and also consultations with members of the House of Representatives and civil society. According to Government estimates prepared in 2008 in course of that review, there were approximately 5 1, 000 people in the same category as the applicant: affording them the same housing assistance as persons whose father was displaced, would cost an extra EUR 30,0 00, 000 a year.", "(ii) Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.1", "48. The Government submitted that the applicant did not have an interest falling in the ambit of Article 1 of Protocol No. 1 because holders of refugee cards were not provided with housing assistance as of right. The granting of such assistance was subject to various criteria, for instance a requirement not to have property of a considerable value already and a means test based on the total gross income of the person ’ s family. Consequently, the applicant could not assert a right to state assistance under domestic law. As such, there was no pecuniary interest, nor legitimate expectation of such an interest, for the purposes of Article 1 of Protocol No. 1.", "49. When the Republic decided to provide assistance to those adversely affected by the invasion, it created a scheme which assisted those most in need of help. The scheme did not include people in the applicant ’ s situation: her case was therefore distinguishable from those cases decided by the Court where the applicant belonged to a class of individuals who were covered by a social benefits scheme and complained that the scheme was applied in a discriminatory manner ( Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2005 ‑ X; Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). To hold that the applicant in the present case had a pecuniary interest falling within the scope of Article 1 of Protocol No. 1 would be tantamount to holding that, when a State made a decision to assist disadvantaged sections of the population, it was not free to prioritise needs or choose the class of persons eligible for assistance.", "50. There was, moreover, no difference in treatment: in 1975, owing to the socio-economic differences at the time, the children of displaced women were not in an analogous position to the children of displaced men. According to Ministry of Interior statistics, in 1973, 25% of women were in employment as against 75% of men; the equivalent percentages for 2001 were 42% of women and 58% of men.", "51. Finally, even if there had been a difference in treatment, it had an objective and reasonable justification. It served the legitimate aim of affording state assistance to those most in need, taking into account social conditions, budgetary considerations and financial resources. As stated above (paragraphs 43 et seq. above), it had been progressively extended, subject to availability of financial resources. It was not the Government ’ s contention that the socio-economic differences of 1975 had not gradually changed as more women entered the labour market, but rather that the difference in treatment remained objectively and reasonably justified until such a time as those changes removed the need for the difference in treatment entirely. Having regard to the fact that measures of economic and social strategy fell within the State ’ s margin of appreciation, the State ’ s decisions as to the precise timing and means for bringing to an end the difference in treatment were not “ manifestly without reasonable foundation ” : Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § § 52 and 64, ECHR 2006 ‑ VI.", "(iii) Further submissions on the amendments to the scheme enacted after the lodging of the present application", "52. The Government reiterated their initial submission that measures of economic and social strategy fell within the state ’ s margin of appreciation, as did the precise timing and means of phasing out the distinction between the children of displaced men and displaced women introduced in 1975. As with the amendments made between 1975 and 1995, the timing and means of the subsequent amendments made between 2007 and 2013 were not so manifestly unreasonable as to exceed the state ’ s wide margin of appreciation.", "(b) The applicant", "(i) Initial submissions", "53. The applicant submitted that, notwithstanding the difficulties the Government faced in 1974 in providing assistance to displaced persons from the northern part of the Republic of Cyprus, the decisions taken had to be rational and lawful. They had not been: the decision to exclude the children of displaced women from receiving refugee cards had been arbitrary and unjustified.", "54. Article 1 of Protocol No. 1 applied to the benefits to which holders of refugee cards were entitled. In particular, had the applicant possessed such a card she would have applied for, and had a legitimate expectation of being granted, housing assistance to the value of CYP 11,540 (EUR 19,717 ). She satisfied all of the other criteria for that assistance (see, mutatis mutandis, Kopecký v. Slovakia [GC], no. 449 12/98, § 35, ECHR 2004 ‑ IX).", "55. There was a clear difference in treatment, a point which appeared to be accepted by the domestic authorities (see for instance the report of the Ombudsman at paragraph 34 above ) and implicitly by the Government in their submissions.", "56. There was no objective and reasonable justification for that difference in treatment. She relied on the Court ’ s finding in Wessels ‑ Bergervoet v. the Netherlands, no. 34462/97, § 51, ECHR 2002 ‑ IV, that the traditional role of men as breadwinners did not provide objective and reasonable justification for differences in treatment based on gender. In any case, women had played just as important a role in the rural economic life of the island before the invasion as men had. Nor was it correct to suggest, as the Government had done, that the economic effects of displacement would be more acute and longer -lasting for the children of displaced men. On the contrary, the children of displaced women were in a much worse position given the historic absence of equal pay for men and women and the more limited opportunities for women to balance work and family commitments.", "57. With reference to the Government ’ s submission as to the economic consequences of broadening the class of refugees eligible for assistance, the applicant responded that there had been no such budgetary concerns in 1975. Therefore, these concerns could not be relied on as justification more than twenty years later.", "58. Finally, the legislative changes introduced in 2007, whereby children of all refugees were granted a certificate of “displaced person by descent”, changed nothing: the certificate did not confer any housing or other benefits on the holder.", "(ii) Further submissions on the amendments to the scheme enacted after the lodging of the present application", "59. The applicant submitted that the amendments were introduced after she had been refused a refugee card and after she had lodged the present application. As such, they did nothing to negate the sex discrimination she had suffered; if anything those amendments showed that the previous system was discriminatory. Whatever those changes, the original difference in treatment remained without reasonable and objective justification.", "2. The Court ’ s assessment", "60. Before examining the merits of this complaint, the Court notes that the scheme under which the applicant was denied a refugee card was amended after she lodged her application such that, as of 2013, children of displaced women are now eligible for housing assistance on the same terms as the children of displaced men (see the summary of those changes set out at paragraphs 29 – 33 above). It was for this reason that the parties were asked to submit further observations on the admissibility and merits of the case in 2013 (see the summaries of those observations set out at paragraphs 52 and 59 above). However, in those observations neither party has sought to argue that the 2013 changes made any material difference to the applicant ’ s case, or the decision to refuse her a refugee card in 2003. In particular, the Government have not argued that this in any way affected the applicant ’ s victim status: their submission is instead that the changes were demonstrative of their earlier submission that Cyprus had not exceeded the margin of appreciation it enjoyed under the Convention. This is a submission on the merits of the case which the Court will consider in due course.", "61. Turning therefore to the merits of this complaint, the Court begins by noting that, as in any case concerning a complaint based on Article 14 taken in conjunction with a substantive article of the Convention or its Protocols, the four questions the Court must consider are:", "(1 ) whether the facts of the case fall within the ambit of the substantive article (here, Article 1 of Protocol No. 1);", "(2 ) whether there has been a difference in treatment between the applicant and others;", "(3 ) whether that difference in treatment has been on the basis of one of the protected grounds set out in Article 14 of the Convention; and", "(4) whether there was a reasonable and objective justification for that difference in treatment; if there was not, the difference in treatment will be discriminatory and in violation of Article 14.", "(a) Whether the facts of the case fall within the ambit Article 1 of Protocol No. 1", "62. The prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide ( Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts) and E.B. v. France [GC], no. 43546/02, § 48, 22 January 2008).", "63. These principles apply generally in cases under Article 1 of Protocol No. 1 and are equally relevant when it comes to welfare benefits. In particular, this Article does not create a right to acquire property. It places no restriction on the Contracting State ’ s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ( Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011).", "64. The relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ( Stummer at § 83 and Fabris v. France [GC], no. 16574/08, § 52, ECHR 2013 (extracts) ).", "65. In applying that test to the present case, the Court considers that, while a range of benefits appear to have been available to the holders of refugee cards, it is only necessary to consider the particular benefit of housing assistance: this, rather than the other benefits apparently available, was the reason the applicant applied for a refugee card in the first place.", "66. That housing assistance was clearly a “benefit” for the purposes of Article 1 of Protocol No. 1. In 2003, the material date for the purposes of the present case, the primary condition of entitlement to housing assistance was that the person applying for it had to be the holder of a refugee card. At that time, there was no means test (see paragraph 27 above). Finally, the only other relevant condition for obtaining this assistance in 2003 was that the person applying for the assistance had not previously obtained a loan from the State : it has not been suggested that the present applicant did not meet that condition. Therefore, but for the need to have a refugee card, the applicant would have had a right, enforceable under Cypriot law, to receive housing assistance.", "67. In seeking to persuade the Court that the facts of this case do not fall within the ambit of Article 1 of Protocol No. 1, the Government have sought, on the basis of three submissions, to distinguish the refugee assistance scheme from other similar benefit schemes which have been considered by the Court to fall within the ambit of Article 1 of Protocol No. 1. First, it is said that the scheme was designed to help those most in need. Second, they submit that this case is different from those cases where an applicant belongs to a class of individuals covered by a social benefits scheme but the scheme is applied in a discriminatory manner. This is because, in the present case, the refugee assistance scheme simply did not include people in the applicant ’ s situation. Third, in the Government ’ s submission, any contrary conclusion would be tantamount to holding that a State is not free to prioritise needs or choose the class of persons eligible for assistance.", "68. These submissions are unpersuasive. The first and third submissions are, in essence, submissions as to whether difference in treatment in entitlement to a refugee card (and thus to the benefits which refugees are entitled) had an objective and reasonable justification rather than whether the benefits to which refugees are entitled fall within the ambit of Article 1 of Protocol No 1. As to the Government ’ s second submission, there is no support in the Court ’ s case-law for distinguishing between a scheme which applied in a discriminatory manner and a scheme from which a person has been excluded in a discriminatory manner: in both cases, the person has not received a benefit to which members of the scheme are entitled. In short, there is nothing in the Government ’ s three submissions which could cast doubt on the correctness of the conclusion that the Court has reached in paragraph 66 above.", "69. For these reasons, the Court finds that the facts of this case fall within the ambit of Article 1 of Protocol No. 1.", "(b) Whether there has been a difference in treatment", "70. There will be a difference in treatment if it can be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment (see Konstantin Markin, cited above, § 125).", "71. Relying on the different proportions of women and men in the workplace when the scheme was first enacted, the Government have submitted that the applicant, as the daughter of a displaced woman, is not in an analogous position to the child of a displaced man. However, it is not clear to the Court why these proportions should have any bearing on whether the children of displaced women and the children of displaced men were in an analogous situation, either in 1975 when the scheme was enacted or in 2003 when the applicant applied for a refugee card. The fact that more men happened to be in the workplace (and by implication that more displaced men worked than displaced women) does not mean that the children of displaced men are in any different situation from the children of displaced women. The only difference between them is the sex of their displaced parent. The children of displaced men and the children of displaced women have similar needs and are therefore in an entirely analogous situation.", "72. In being entitled to a refugee card (and thus housing assistance) the children of displaced men clearly enjoy preferential treatment over the children of displaced women. A difference in treatment has thus been established in this case.", "(c) Whether this difference in treatment has been on the basis of one of the protected grounds set out in Article 14 of the Convention", "73. It does not appear to be in dispute that this difference in treatment was on the basis of sex, one of the protected grounds set out in Article 14.", "(d) Whether there was a reasonable and objective justification for this difference in treatment", "74. A difference of treatment is discriminatory and thus in violation of Article 14, if it has no objective and reasonable justification; that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris, cited above, § 56; and Konstantin Markin at §125 ).", "75. In cases where the difference in treatment is on grounds of sex, the general principles which apply in determining this question of justification, were restated by the Grand Chamber in Konstantin Markin at §§ 126 and 127. Where relevant to the present case, these provide as follows (internal references omitted):", "- The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention ’ s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved.", "- The advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States are prevented from imposing traditions that derive from the man ’ s primordial role and the woman ’ s secondary role in the family.", "76. Applying these principles to the present case, the Court begins by observing that the principal justification the Government have advanced for the difference in treatment is the socio-economic differences which were said to exist in Cyprus in 1974, notably that men were the traditional breadwinners at that time (see their observations summarised at paragraph 42 above). However, this is precisely the kind of reference to “traditions, general assumptions or prevailing social attitudes” which provides insufficient justification for a difference in treatment on grounds of sex because it derives entirely from the man ’ s primordial role and woman ’ s secondary role in the family (see Konstantin Markin at paragraph 127, quoted at paragraph 74 above).", "77. Moreover, even if that reflected the general nature of economic life in rural Cyprus in 1974 (a matter disputed by the parties : compare the Government ’ s submissions at paragraph 42 above with those of the applicant at paragraph 56 above ), it did not justify regarding all displaced men as breadwinners and all displaced women as incapable of fulfilling that role once displaced from the northern to the southern part of the Republic. Nor could it justify subsequently depriving the children of displaced women of the benefits to which the children of displaced men were entitled. This is particularly so when many of the benefits that the children of displaced men were entitled, including housing assistance, were without any reference to a means test. This would have meant, for instance, that the child of a displaced woman earning a lower income would not have been entitled to that assistance whereas the child of a displaced man earning a higher income would have been entitled to it. This difference in treatment towards the children of displaced persons cannot be justified simply by reference to the need to prioritise resources in the immediate aftermath of the 1974 invasion.", "78. The Government, drawing firstly on the progressive expansion of the scheme since 1974 and secondly on the budgetary implications that ending the difference in treatment would have had, have submitted that, even if the difference in treatment could no longer be justified, the State should nonetheless enjoy a margin of appreciation in choosing the timing and means for extending the refugee assistance scheme to the children of displaced women.", "79. Neither of these considerations suffices to remedy the otherwise discriminatory nature of the scheme. First, whatever the attempts to expand the scheme from 1974 to 2003, none of the changes introduced during that period cured the clear difference in treatment between the children of displaced men and the children of displaced women. Nor can it be said that these changes were introduced to reflect the gradual entry of women into the labour market (see the Government ’ s submissions at paragraph 51 above). From 1974-2013 the scheme at all times excluded the children of displaced women. Budgetary considerations alone cannot serve to justify a clear difference in treatment based exclusively on gender, particularly when the successive expansions of the scheme between 1974 and 2013 would themselves have had financial consequences.", "80. Finally, it is particularly striking that the scheme continued on the basis of this difference in treatment until 2013, nearly forty years after it was first introduced. The fact the scheme persisted for so long, and yet continued to be based solely on traditional family roles as understood in 1974, means that the State must be taken to have exceeded any margin of appreciation it enjoyed in this field. Very weighty reasons would have been required to justify such a long-lasting difference in treatment. None have been shown to exist. There is accordingly no objective and reasonable justification for this difference in treatment.", "81. For these reasons, the Court concludes that the difference in treatment between the children of displaced women and the children of displaced men was discriminatory and thus finds a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.", "82. In view of that conclusion, the Court considers it unnecessary to examine separately the complaint under Article 1 of Protocol No. 1 taken alone (see Ponomaryovi, cited above, § 64).", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 12", "83. In the alternative, the applicant complained that the refusal to grant her an identity card was in violation of Article 1 of Protocol No. 12, which provides:", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "84. The Government contested that argument.", "85. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. However, having regard to the finding relating to Article 14 taken in conjunction with Article 1 of Protocol No. 1 (see paragraph 81 above), the Court considers that it is not necessary to examine this complaint.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "86. The applicant further complained that there had been a violation of Article 13 as no authority in Cyprus, including the courts, had examined her complaint and, as a result, given her relief. Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "87. The Government submitted that Article 13 does not guarantee a remedy allowing a Contracting State ’ s primary legislation to be challenged on grounds that it is contrary to the Convention ( P.M. v. the United Kingdom, no. 6638/03, § 34, 19 July 2005 and further references therein).", "A. Admissibility", "88. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "89. The Court considers that the domestic proceedings which the applicant brought did not attempt to challenge primary legislation : at the time she was refused a refugee card all of the relevant provisions were contained in decisions of the Council of Ministers (see paragraphs 19 – 24 above). They were thus administrative- executive decisions, and the Government have not relied on any legislative act relevant to the scheme and in force at the time in question. Thus, contrary to the Government ’ s submission, this is not a case where the impugned measure was contained in primary legislation and where, therefore, there was no need to have an effective remedy in place. Accordingly, the ordinary rule on the need to provide an effective remedy applies.", "90. In applying that rule, the Court recalls that the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see, as a recent authority, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 131, ECHR 2014). Nonetheless, there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Nada v. Switzerland [GC], no. 10593/08, § 207, ECHR 2012; see also Ališić and Others, ibid. ).", "91. In the present case, the reason the Supreme Court was unable to consider whether the applicant was entitled to the remedy she sought ( the quashing of the decision to refuse her a refugee card) was that it considered that it did not have jurisdiction to extend the refugee card scheme without infringing the constitutional principle of the separation of powers (see the final two paragraphs of the Supreme Court ’ s judgment, quoted at paragraph 15 above). In other words, the Supreme Court, applying that principle, found itself unable to consider the merits of the applicant ’ s discrimination claim and thus unable to grant her appropriate relief. The Court readily understands the Supreme Court ’ s concern to ensure proper respect for the separation of powers under the Constitution of Cyprus and it is not the Court ’ s place to question the Supreme Court ’ s interpretation and application of that principle. However, the consequence of the Supreme Court ’ s approach was that, in so far as the applicant ’ s Convention complaints were concerned, recourse to the Supreme Court was not an effective remedy for her. Since the Government have not submitted that any other effective remedy existed in Cyprus at the material time to allow the applicant to challenge the discriminatory nature of the refugee card scheme, it follows that there has been a violation of Article 13 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "92. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "93. The applicant submitted that she is entitled to an amount of EUR 112,225 reflecting the loss in the value of the property she could have acquired had she been granted a refugee card in 2003. In support of her claim, the applicant submitted a valuation report conducted on the basis of randomly selected properties in Kokkynotrimithia where she lived. The report compared the prices between properties there for the years 2003, when the applicant applied for a refugee card, and 2008, the date the applicant submitted her just satisfaction claims. According to the report, the average price of a building plot in 2003 was CYP 15,700 (approximately EUR 26,825) in contrast to EUR 153,774 in 2008. The applicant submitted that the housing assistance of CYP 11,540 which she could have received in 2003 amounted to 73% of the purchase price of a building plot in 2003. With this in mind the applicant submitted that, taking into account 2008 prices, she had suffered a loss of EUR 112,225 (EUR 153,774 x 73%). Alternatively, the applicant submitted that she was entitled to a sum equal to the housing assistance granted to displaced persons wishing to construct a three-bedroom residence in 2008 meaning EUR 68,350.", "94. The Government contested both of the applicant ’ s claims submitting that the sums claimed were speculative and not causally linked to the alleged violation of the Convention.", "95. The Court reiterates that the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link between the damage alleged and the violation found (see, for instance, Nikolova v. Bulgaria [GC], no. 31195/96, § 73, ECHR 1999 ‑ III). The Court cannot therefore accept the applicant ’ s claim based on the 2008 value of property she could have bought in 2003, nor her claim for CYP 68,350 (the value of housing assistance in 2008): neither of these claims are causally linked to the violation found.", "96. Nonetheless, the Court reiterates that on the basis of Article 41 the applicant should so far as possible be put in the position she would have enjoyed had the violation found by the Court not occurred : see Wessels ‑ Bergervoet, cited above, § 60. It is therefore appropriate to award the applicant the grant of housing assistance she would have received but for the difference in treatment she suffered. However, since the applicant has not provided sufficient details as to why she claimed she would have been entitled to receive CYP 11,540, the Court considers it appropriate to basis its award on the minimum amount available in 2003, CYP 8,520 (see paragraph 28 above). Adjusting that sum to reflect interest and inflation since 2003, and ruling on an equitable basis, the Court awards the applicant EUR 2 1, 5 00.", "B. Non-pecuniary damage", "97. The applicant submitted that she is also entitled to non-pecuniary damages on the grounds that the discrimination was solely on the basis of gender and that the Government continuously failed to take any corrective measures to alleviate the discriminatory treatment.", "98. The Government submitted that, in the event the Court found a violation of the Convention, such finding should constitute sufficient just satisfaction.", "99. The Court accepts that the applicant has suffered non-pecuniary damage resulting from the nature of the discrimination. Ruling on an equitable basis, the Court awards the applicant EUR 4,000 under this head.", "C. Costs and expenses", "100. The applicant claimed CYP 4,086 (EUR 6,981) for the costs and expenses she had incurred before the Supreme Court, plus interest. She further claimed EUR 10,000 for the costs and expenses she had incurred in proceedings before the Court. Finally, the applicant claimed EUR 575 for the preparation of the valuation report on property prices in Kokkynotrimithia (see paragraph 93 above).", "101. The Government accepted that the costs and expenses suffered by the applicant in the domestic proceedings and in proceedings before the Court were recoverable by way of just satisfaction provided that they had been actually and necessarily incurred.", "102. For costs and expenses incurred by the applicant before the Supreme Court, the Court considers that these were necessarily and reasonably incurred in the applicant ’ s attempt to seek redress for the violation of the Convention it has found. Thus, they are in principle recoverable (see, for instance, Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 58, 27 February 2007 ). The sums claimed are also reasonable as to quantum. The Court considers, therefore, that these claims should be met in full and accordingly awards the applicant EUR 6,981 under this head.", "103. As regards the costs incurred in the proceedings before it, the Court notes that the applicant has not provided an itemised bill of costs sufficiently substantiating her claims ( Efstathiou and Michailidis & Co. Motel Amerika v. Greece, no. 55794/00, § 40, ECHR 2003 ‑ IX ). For this reason, the Court finds that this part of the applicant ’ s claim must be dismissed.", "104. Finally, as regards the EUR 575 incurred for valuation report, given that pecuniary damage has been calculated on the basis of the amount of housing assistance available to the applicant in 2003 and not property prices in 2008, the Court finds that this expense was not necessarily incurred ( Michael Theodossiou Ltd. v. Cyprus (just satisfaction), no. 31811/04, § 30, 14 April 2015). This part of the applicant ’ s claim must also be dismissed.", "D. Default interest", "105. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "14. The facts of the case, as submitted by the parties, may be summarised as follows.", "A. Mrs Stec", "15. On 18 January 1989 Mrs Stec injured her back at work and was unable to continue working. She was awarded Reduced Earnings Allowance ( REA – see paragraph 2 6 below) from 24 January 1990. On 13 March 1993 she reached the age of 60 and as from 31 March 1996 her award of REA was replaced by an award of Retirement Allowance ( RA – see paragraph 30 below).", "16. The applicant appealed against this decision on the ground of sex discrimination to the Trent Social Security Appeals Tribunal ( SSAT ), which allowed her appeal on 4 October 1996, and the adjudication officer subsequently appealed to the Social Security Commissioner (“the Commissioner”).", "17. The Commissioner joined Mrs Stec ’ s case to those of the other three present applicants, and also to that of Mrs Hepple. Having heard arguments on 11 and 12 December 19 9 7, the Commissioner decided on 8 May 1998 to refer the following questions to the European Court of Justice (ECJ ):", "“1. Does Article 7 of Council Directive 79/7/EEC permit a member State to impose unequal age conditions linked to the different pension ages for men and women under its statutory old-age pension scheme, on entitlement to a benefit having the characteristics of Reduced Earnings Allowance under a statutory occupational accident and disease scheme, so as to produce different weekly cash payments under that scheme for men and women in otherwise similar circumstances, in particular where the inequality:", "(a) is not necessary for any financial reason connected with either scheme; and", "(b) never having been imposed before, is imposed for the first time many years after the inception of the two schemes and also after 23 December 1984, the latest date for the Directive to be given full effect under Article 8?", "2. If the answer to Question 1 is Yes, what are the considerations that determine whether unequal age conditions such as those imposed in Great Britain for Reduced Earnings Allowance from 1988 to 1989 onwards are necessary to ensure coherence between schemes or otherwise fall within the permitted exclusion in Article 7?", "3. ... ”", "18. In his order of reference the Commissioner observed:", "“On the main issue, it is apparent from the information before me (and the adjudication officers so concede) that the imposition after 1986 of unequal age conditions on REA for the first time was not necessary to maintain the financial equilibrium or coherence (in so far as that word is understood in a financial sense) of the UK social security schemes.", "It is also apparent (and on the information before me I so decide as a fact) that such imposition was not necessary to enable the United Kingdom to retain the different pension ages under its old-age scheme. That difference had coexisted with the Industrial Injuries Scheme ... for nearly 40 years from 1948 without it, and REA could simply have been left as it was, or a non-discriminatory cut-off age adopted, without upsetting the pension system as it had always operated.", "The real question therefore is the more difficult one of whether a government which considers it a costly anomaly to go on paying a benefit such as REA to people too old to work is permitted to impose a new cut-off at unequal ages, claiming the benefit of the exclusion in Article 7 for the ‘ possible consequences for other benefits ’ having regard to what was said in the [ECJ ’ s] judgment in Graham, on the ground that the ages selected are the same as those for the pension, and ... the government take the view as a matter of policy that the income-replacement functions of REA should be performed after pension age by the pension, plus the very much smaller ‘ Retirement Allowance ’ instead.”", "19. The ECJ gave judgment on 23 May 2000 (see paragraph 4 1 below). On 31 July 2000 the Commissioner, following the ECJ ’ s ruling, struck out the applicants ’ cases where they were the appellants before him and allowed the appeals where the adjudication officers had been the appellants.", "B. Mr Lunn", "20. On 11 November 1973 Mr Lunn suffered a work-related injury to his right hand, as a result of which he had to stop working. From 12 May 1974 he received Special Hardship Allowance, which was converted to REA from 1 October 1986. On 19 May 1988 he reached the age of 65 and from May 1993, when he turned 70, he received a statutory retirement pension. On 26 March 1996 an adjudication officer reviewed the award of REA and decided that, with effect from 31 March 1996, it should be replaced by an award of RA, paid at approximately 25% of the REA rate.", "21. The applicant appealed on the ground that a woman in the same circumstances would have been treated as having retired on or before 19 May 1988 and would have been entitled to a frozen rate of REA for life, a more valuable benefit. On 24 September 1996 the Stockport SSAT dismissed his appeal, and Mr Lunn appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-1 9 above).", "C. Mrs Spencer", "22. Mrs Spencer suffered a work-related injury to her neck on 17 July 1966. She was awarded Special Hardship Allowance from 15 January 1967 and from 1 October 1986 this was converted to an award of REA. Her sixtieth birthday was on 11 December 1986 and she received a retirement pension from 23 December 1986. It was decided on 10 May 1993, with effect from 11 April 1988, to freeze for life her award of REA at 25.28 pounds sterling (GBP) per week.", "23. The applicant appealed to the Bolton SSAT on the ground that, had she been a man, she would have continued to receive unfrozen REA. The SSAT allowed her appeal on 30 November 1994, and the adjudication officer appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-1 9 above).", "D. Mr Kimber", "24. On 12 March 1982 Mr Kimber injured his back at work and was unable to continue working. He was awarded Special Hardship Allowance from 15 September 1982, converted to REA from 1 October 1986. He reached the age of 65 on 30 September 1989 and received a retirement pension from 29 September 1994. On 29 April 1996 an adjudication officer reviewed his award of REA and decided that with effect from 31 March 1996 it should be replaced by an award of RA.", "25. The applicant appealed to the Eastbourne SSAT, on the ground that a woman in his circumstances could have chosen to have been treated as retired from 10 April 1989, and so would have been entitled to frozen REA for life, a more valuable benefit than RA. The SSAT allowed his appeal on 2 October 1996 and the adjudication officer appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-1 9 above)." ]

[ "II. RELEVANT LAW", "A. Benefits for industrial injury and disease in the United Kingdom", "26. Reduced Earnings Allowance (REA) is an earnings-related additional benefit under the statutory occupational accident and disease scheme which was put in place in 1948. Originally the benefit was known as Special Hardship Allowance, but it was recast and renamed by the Social Security Act 1986. At the time of the introduction of these applications, the relevant legislation was Part V of the Social Security Contributions and Benefits Act 1992.", "27. REA has, since 1990, been funded by general taxation rather than the National Insurance scheme. It is payable to employees or former employees who have suffered an accident at work or an occupational disease, with the purpose of compensating for an impairment in earning capacity. The weekly amount is based on a comparison between the claimant ’ s earnings prior to the accident or disease and those in any actual or notional alternative employment still considered suitable despite the disability, subject to a maximum weekly award of GBP 40. It is a non-contributory benefit, in that eligibility is not conditional on any or a certain number of contributions having been made to the National Insurance Fund.", "28. Under more recent legislation the benefit is being phased out altogether and no fresh right to REA can arise from an accident incurred or a disease contracted on or after 1 October 1990. In addition, a succession of legislative measures after 1986 attempted to remove or reduce it for claimants no longer of working age, in respect of whom the government considered any comparison of “earnings” to be artificial. Before these changes, there had been a continued right to REA notwithstanding the attainment of retirement age and REA had been payable concurrently with the State pension.", "29. The method chosen to reduce eligibility was to impose cut-off or limiting conditions by reference to the ages used by the statutory old-age pension scheme, namely 65 for men and 60 for women until 1996, then tapering up to eventual equality at 65 in 2020 (Part II of the Social Security Contributions and Benefits Act 1992, as amended by the Pensions Act 1995 – see paragraphs 3 1 -3 5 below ).", "30. Under the new provisions (Social Security Contributions and Benefits Act 1992), all REA recipients who, before 10 April 1989, had reached either ( a ) 70, if a man, or 65, if a woman, or ( b ) the date of retirement fixed by a notice, at age 65+ for a man or 60+ for a woman, would receive a frozen rate of REA for life. All other REA recipients would cease to receive REA, and would instead receive Retirement Allowance (RA) either on reaching ( a ) 70, if a man, or 65, if a woman, or ( b ) the date of retirement fixed by a notice, at age 65+ for a man or 60+ for a woman or on giving up employment at 65 for a man or 60 for a woman.", "B. State pensionable age in the United Kingdom", "31. State retirement pensions are funded entirely from the National Insurance Fund, to which all employers and the majority of the working population, whether employed or self-employed, are liable to pay compulsory contributions. The individual ’ s liability for such contributions ceases at “pensionable age”.", "32. Men and women born before 6 April 1950 attain pensionable age at 65 and 60 respectively (Schedule 4 to the Pensions Act 1995). The present pension age for women was introduced in 1940 by the Old Age and Widows ’ Pensions Act. Prior to that, State pension age was 65 for both men and women. According to the government ’ s Green and White Papers entitled respectively “Options for Equality in State Pension Age” ( Cm 1723, December 1991 ) and “Equality in State Pension Age” ( Cm 2420, December 1993 ), the lower age for women was introduced in response to a campaign by unmarried women, many of whom spent much of their lives caring for dependent relatives, and also as part of a package to enable married couples, where the wife was usually younger than the husband and financially dependent on him, to receive a pension at the couples ’ rate when the husband reached 65.", "33. In the 1993 White Paper, the government pointed out that while, historically, women ’ s entitlement to a State pension was frequently reduced because their traditional role of caring for the family in the home led to fragmented employment records, the number of women in employment had greatly increased in recent years: in 1967, 37% of employees were women, compared with 50% in 1992 (although the statistics did not differentiate, for example, between full- and part-time workers). Moreover, a home responsibilities provision, introduced in 1978, now helped those whose working life was shortened because of time spent caring for a child or sick or disabled person to build up entitlement to a basic pension, and the concession which allowed married women to pay reduced - rate National Insurance contributions, leaving them dependent on their husbands ’ contributions, was withdrawn in 1977. The Sex Discrimination Act 1986 had amended the Sex Discrimination Act 1975 to make it unlawful for an employer to have different retirement ages for men and women. The view of the government, expressed in the White Paper, was that the preferential pension age for women had no place in modern society and it was proposed to equalise pensionable age for men and women.", "34. It was decided to equalise at 65, rather than a lower age, because people were living longer and healthier lives and because the proportion of pensioners in the population was set to increase. It was estimated that any move towards paying male State retirement pensions earlier than 65 would cost in the order of GBP 9.8 billion per year gross (representing additional pension payments to men between 60 and 65 and lost income from National Insurance contributions from these men) or a net sum of GBP 7 .5 billion per year (when account was taken of savings on payment of other, non-National Insurance Fund benefits to such men). It was decided to introduce the change gradually to ensure that women affected by the change and their employers had ample time to adjust their expectations and arrange their financial affairs accordingly.", "35. In order to bring male and female pensionable age into line with each other, therefore, section 126 of the Pensions Act 1995, together with Schedule 4, provide for the pensionable age of women born between 6 April 1950 and 5 April 1955 to increase progressively. With effect from 2010, the pensionable age of men and women in the United Kingdom will begin to equalise, and by 2020 both sexes will attain pensionable age at 65.", "C. Pensionable age in other European countries", "36. According to information provided by the Government in December 2004, men and women became eligible to receive an old - age pension at the same age in Andorra, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Liechtenstein, Luxembourg, Monaco, the Netherlands, Norway, Portugal, San Marino, Slovakia, Spain and Sweden.", "37. Women were entitled to receive a pension at a younger age than men in Albania, Armenia, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, the Czech Republic, Estonia, Georgia, Hungary, Italy, Latvia, Lithuania, Malta, Moldova, Poland, Romania, the Russian Federation, Serbia and Montenegro, Slovenia, Switzerland, “ the former Yugoslav Republic of Macedonia ” and Ukraine. Many of these countries were phasing in equalisation of pensionable age. This was to take place in Austria between 2024 and 20 33; in Azerbaijan by 2012; in Belgium between 1997 and 2009; in Estonia before 2016; in Hungary by 2009; in Latvia by 2008; and in Lithuania by 2006.", "D. European Union Directive on equal treatment in social security", "38. Council Directive 79/7/EEC of 19 December 1978 (“the Directive”) concerns the progressive implementation of the principle of equal treatment for men and women in matters of social security. Article 4(1) of the Directive prohibits all discrimination on grounds of sex, in particular as concerns the calculation of benefits. Such discrimination can be justified only under Article 7(1)(a), which provides that the Directive is to be without prejudice to the right of member States to exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits. Under Article 7(2), “ [m] ember States shall periodically examine matters excluded under paragraph 1 in order to ascertain, in the light of social developments in the matter concerned, whether there is justification for maintaining the exclusions concerned ”.", "E. ECJ consideration of Article 7(1)(a) of the Directive", "39. In case C-9/91 The Queen v. Secretary of State for Social Security, ex parte Equal Opportunities Commission ( “ EOC ”) [1992] European Court Reports (ECR ) I-4297, the ECJ found that Article 7(1)(a) must be interpreted not only as authorising the retention of a statutory pensionable age which differed according to sex, but also forms of discrimination affecting access to certain benefits which were “necessarily linked” to the difference in pensionable age. Inequality between men and women, with respect to the contribution periods required in order to obtain a pension of an identical amount, constituted such discrimination where, having regard to the financial equilibrium of the national pension system in the context of which it appeared, it could not be disassociated from the difference in pensionable age.", "40. In case C-328/91 Secretary of State for Social Security v. Evelyn Thomas and Others [1993] ECR I-1247, the ECJ held that the reasoning from the EOC decision extended to benefits linked to differential State retirement ages where “ such discrimination is objectively necessary in order to avoid disrupting the complex financial equilibrium of the social security system or to ensure consistency between retirement pension schemes and other benefit schemes ”.", "41. In the present applicants ’ case, C-196/98 Hepple and Others v. Adjudication Officer [2000] ECR I-3701, the ECJ applied the reasoning of Evelyn Thomas and Others to find, first, that “removal of the discrimination at issue ... would have no effect on the financial equilibrium of the social security system of the United Kingdom as a whole” (§ 29). However, it went on to hold that it had been objectively necessary to introduce different age conditions based on sex in order to maintain coherence between the State retirement pension scheme and other benefit schemes, since (§§ 31-34)", "“ ... the principal aim of the successive legislative amendments ... was to discontinue payment of REA – an allowance designed to compensate for an impairment of earning capacity following an accident at work or occupational disease – to persons no longer of working age by imposing conditions based on the statutory retirement age.", "Thus, as a result of those legislative amendments, there is coherence between REA, which is designed to compensate for a decrease in earnings, and the old-age pension scheme. It follows that maintenance of the rules at issue in the main proceedings is objectively necessary to preserve such coherence.", "That conclusion is not invalidated by the fact that REA is replaced, when the beneficiary reaches retirement age and stops working, by RA, the rate of which is 25% of REA, since RA is designed to compensate for the reduction in pension entitlement resulting from a decrease in earnings following an accident at work or occupational disease.", "It follows that discrimination of the kind at issue in the main proceedings is objectively and necessarily linked to the difference between the retirement age for men and that for women, so that it is covered by the derogation for which Article 7(1)(a) of the Directive provides.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 1 4 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "42. The applicants claimed that the scheme of Reduced Earnings Allowance ( REA – see paragraph 26 above) and Retirement Allowance ( RA – see paragraph 30 above), as it applied to each of them, was discriminatory, in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. The latter provision reads:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "43. In its admissibility decision of 6 July 2005, the Court held that the applicants ’ interests fell within the scope of Article 1 of Protocol No. 1, and that Article 14 of the Convention was therefore applicable. It must now consider whether there has been a breach of Article 14 taken in conjunction with Article 1 of Protocol No. 1.", "A. The parties ’ submissions", "1. The applicants", "44. The applicants did not deny that it had been reasonable for the respondent State to seek to address the anomaly whereby industrial injury earnings-replacement benefits continued to be paid to workers after the age when they would, in any event, have ceased paid employment. There was, however, no justification for introducing sex-based discrimination into the scheme by linking the cut-off date to pension age. The same objective could have been achieved, without unacceptable financial consequences, by adopting a common age-limit for men and women and/ or by the use of overlapping benefit regulations, ensuring that any State pension received was offset against REA. Other age-related benefits, such as winter fuel payment, prescription charges and bus passes were paid with a common age threshold.", "45. It was important to note that the Commissioner, in his reference to the European Court of Justice ( ECJ – see paragraphs 17 -18 above), had found that the introduction after 1986 of unequal age conditions on REA had not been necessary to maintain the financial equilibrium of either the REA or the pension scheme. Although the ECJ had decided against them, the applicants emphasised that it had been adjudicating on a different question, namely whether the amendments fell within the scope of the Article 7 exception to the non-discrimination provisions of the Directive. In particular, the ECJ did not have to decide whether there was a proportionate justification for the discrimination, but was instead construing the phrase “the possible consequences thereof for other benefits” in Article 7. The applicants did not consider that a finding in their favour would have wider implications for the case-law of the ECJ under Article 7, since the impact would be limited to other cases where there was no financial necessity to maintain the link between the benefit in question and pensionable age, and no compelling reason to do so. Moreover, the mere fact that a measure which discriminated on grounds of sex nonetheless fell outside the European Union ’ s limited restrictions upon social security discrimination did not prevent this Court from examining for itself the issue of justification.", "46. The applicants ’ core submission was that there was a fundamental difference in the level of justification required for a progressive move to eradicate existing sex discrimination in the pension system and the introduction, from 1986, of new discrimination in relation to industrial injury benefits which had existed on equal terms for men and women for almost forty years. The labour market had already changed by 1986, and ten years earlier the Sex Discrimination Act 1976 and the European Community ’ s Equal Treatment Directive 76/207/EEC had rendered discrimination in the field of employment unlawful. The assumption that a woman ’ s working life would be five years shorter than a man ’ s was therefore entirely illegitimate.", "2. The Government", "47. The Government emphasised that REA was designed to compensate those who had suffered an industrial injury for their loss of earning capacity, and was therefore a benefit linked intrinsically to work. By stopping it at State pensionable age, Parliament had acted in an objectively justified manner by ensuring that a person, whether male or female, would not be eligible both for a State retirement pension and for a benefit for loss of earning capacity. Using pensionable age promoted, in a manner that could easily be understood and administered, and was proportionate, the objective of discontinuing REA for those who were no longer a regular part of the working and earning sector of the population. The Government estimated that, if, following an adverse judgment, it became necessary to reform the REA and RA scheme and reimburse for lost benefits all claimants in the same position as the four applicants, this would cost in the region of GBP 83 million, to which should be added a further GBP one million in administrative costs and GBP 17 million in estimated future payments.", "48. The justification for linking social security benefits to pensionable age had been recognised by Article 7 of the Directive (see paragraph 3 8 above). In May 2000 the ECJ had considered and rejected the contention raised by the present applicants that they had been unlawfully discriminated against on the ground of their sex in breach of the Directive (see paragraph 4 1 above). The case-law of the ECJ (see extracts in paragraphs 3 9 -4 1 above) showed this to be a dynamic and evolving area of law in which the ECJ, and the domestic courts bound by its jurisprudence and the Directive, applied a close, proportionality-based analysis to test the continued objective justification for the use of differential ages in access to both State retirement pensions and linked benefits. If the Court were to find a violation in the present case, it would create considerable confusion : the domestic legislation would be lawful under a Directive specifically concerned with sex discrimination in social security, but unlawful under the more general provisions of the Convention.", "49. Finally, the social, historical and economic basis for the provision of State retirement pensions at the age of 65 for men and 60 for women, as well as the decision to equalise pensionable age for men and women progressively from 2010 to 2020, involved complex economic and social judgments, in respect of which the State enjoyed a broad margin of appreciation. Before deciding to set the new equal State retirement pension age at 65, the government had considered several options, summarised in the 1993 White Paper (see paragraphs 3 2 -3 4 above), and a full public consultation exercise had been carried out. The clear conclusion reached was that 6 5 was the correct common State retirement pension age for the United Kingdom. In 1995 Parliament had decided to implement the reform in stages because moving towards equality had enormous financial implications both for the State and for individuals, particularly women who had long been expecting to receive a State retirement pension at 60 (see paragraphs 3 4 - 3 5 above). Several Contracting States retained different pension ages for men and women, and a number had chosen to implement a gradual equalisation of those ages (see paragraphs 3 6 -3 7 above). Moreover, the European Community had accepted that its member States must be allowed a period of transition in which to plan and implement the move to equal ages for men and women in relation to State pensionable age ( see paragraph 3 8 above).", "B. The Court ’ s assessment", "1. General principles", "50. The applicants complained of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14.", "51. Article 14 does not prohibit a member State from treating groups differently in order to correct “ factual inequalities ” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see Case “ relating to certain aspects of the laws on the use of languages in education in Belgium” ( merits), 23 July 1968, pp. 34-35, § 10, Series A no. 6, and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Van Raalte v. the Netherlands, 21 February 1997, § 39, Reports of Judgments and Decisions 1997-I).", "52. The scope of this margin will vary according to the circumstances, the subject matter and the background (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998-II ). As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see Van Raalte, cited above, § 39, and Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263). On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII ). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( ibid. ).", "53. Finally, since the applicants complain about inequalities in a welfare system, the Court underlines that Article 1 of Protocol No. 1 does not include a right to acquire property. It places no restriction on the Contracting States ’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see the admissibility decision in the present case, §§ 54-55, ECHR 2005- X ).", "2. Application of these principles to the present case", "54. The Court notes that REA is an earnings-related benefit designed to compensate employees or former employees for an impairment of earning capacity due to an accident at work or work-related illness. In or around 1986 it was decided, as a matter of policy, that REA should no longer be paid to claimants who had reached an age at which, even if they had not suffered injury or disease, they would no longer be in paid employment (see paragraphs 2 6 - 30 above). The applicants concede that it was reasonable to aim to stop paying REA to workers after the age when they would, in any event, have retired, and the Court agrees, since the benefit in question is designed to replace or supplement earnings, and is therefore closely connected to employment and working life.", "55. The applicants do not accept, however, that in order to achieve this aim it was necessary to adopt as the upper limit the age at which a man or woman becomes entitled to the State retirement pension, since State pensionable age is at present different for men and women. They suggested that a single cut-off age and/or overlapping benefit regulations could have been used instead.", "56. The Court observes, however, that a single cut-off age would not have achieved the same level of consistency with the State pension scheme, which is based upon a notional “end of working life” at 60 for women and 65 for men. The benefits to which the applicants refer as having the same starting age for men and women – winter fuel payment, prescription charges and bus passes (see paragraph 4 4 above) – are not inextricably linked to the concept of paid employment or “working life” in the way that REA is. Overlapping benefit regulations, to ensure that any REA received was deducted from the State retirement pension would, moreover, have maintained the impugned difference of treatment, since women would still have become entitled to their pensions and liable to start receiving reduced-rate REA five years before men.", "57. The Government, for their part, have explained that the use of the State pension age as the cut-off point for REA made the scheme easy to understand and administer (see paragraph 4 8 above). The Court considers that such questions of administrative economy and coherence are generally matters falling within the margin of appreciation referred to in paragraph 5 2 above.", "58. Moreover it finds it significant that, in the present applicants ’ case, the ECJ found that since REA was intended to compensate people of working age for loss of earning capacity due to an accident at work or occupational disease, it was necessary, in order to preserve coherence with the old-age pension scheme, to link the age-limits (see paragraph 4 1 above). While it is true that Article 7(1)(a) of the Directive provides an express exception to the general prohibition on discrimination in social security (see paragraph 3 8 above), the ECJ was called upon, in deciding whether the case fell within the Article 7 exception, to make a judgment as to whether the discrimination in the REA scheme arising from the link to differential pensionable ages was objectively necessary in order to ensure consistency with the pension scheme. In reaching a conclusion on this issue which, while not determinative of the issue under Article 14 of the Convention, is nonetheless of central importance, particular regard should be had to the strong persuasive value of the ECJ ’ s finding on this point.", "59. The Court considers, therefore, for the above reasons, that both the policy decision to stop paying REA to persons who would otherwise have retired from paid employment, and the decision to achieve this aim by linking the cut-off age for REA to the notional “end of working life”, or State pensionable age, pursued a legitimate aim and were reasonably and objectively justified.", "60. It remains to be examined whether or not the underlying difference in treatment between men and women in the State pension scheme was acceptable under Article 14.", "61. Differential pensionable ages were first introduced for men and women in the United Kingdom in 1940, well before the Convention had come into existence, although the disparity persists to the present day (see paragraph 3 2 above). It would appear that the difference in treatment was adopted in order to mitigate financial inequality and hardship arising out of women ’ s traditional unpaid role of caring for the family in the home rather than earning money in the workplace. At their origin, therefore, the differential pensionable ages were intended to correct “ factual inequalities ” between men and women and appear therefore to have been objectively justified under Article 14 of the Convention (see paragraph 5 1 above).", "62. It follows that the difference in pensionable ages continued to be justified until such time as social conditions had changed so that women were no longer substantially prejudiced because of a shorter working life. This change, must, by its very nature, have been gradual, and it would be difficult or impossible to pinpoint any particular moment when the unfairness to men caused by differential pensionable ages began to outweigh the need to correct the disadvantaged position of women. Certain indications are available to the Court. Thus, in the 1993 White Paper, the government asserted that the number of women in paid employment had increased significantly, so that whereas in 1967 only 37% of employees were women, the proportion had increased to 50% in 1992. In addition, various reforms to the way in which pension entitlement was assessed had been introduced in 1977 and 1978, to the benefit of women who spent long periods out of paid employment. As of 1986 it was unlawful for an employer to have different retirement ages for men and women (see paragraph 3 3 above).", "63. According to the information before the Court, the government made a first, concrete, move towards establishing the same pensionable age for both sexes with the publication of the Green Paper in December 1991. It would, no doubt, be possible to argue that this step could, or should, have been made earlier. However, as the Court has observed, the development of parity in the working lives of men and women has been a gradual process, and one which the national authorities are better placed to assess (see paragraph 5 2 above). Moreover, it is significant that many of the other Contracting States still maintain a difference in the ages at which men and women become eligible for the State retirement pension (see paragraph 3 7 above). Within the European Union, this position is recognised by the exception contained in the Directive (see paragraph 3 8 above).", "64. In the light of the original justification for the measure as correcting financial inequality between the sexes, the slowly evolving nature of the change in women ’ s working lives, and in the absence of a common standard amongst the Contracting States (see Petrovic, cited above, §§ 36-43), the Court finds that the United Kingdom cannot be criticised for not having started earlier on the road towards a single pensionable age.", "65. Having begun the move towards equality, moreover, the Court does not consider it unreasonable of the government to carry out a thorough process of consultation and review, nor can Parliament be blamed for deciding in 1995 to introduce the reform slowly and in stages. Given the extremely far-reaching and serious implications, for women and for the economy in general, these are matters which clearly fall within the State ’ s margin of appreciation.", "3. Conclusion", "66. In conclusion, the Court finds that the difference in State pensionable age between men and women in the United Kingdom was originally intended to correct the disadvantaged economic position of women. It continued to be reasonably and objectively justified on this ground until such time as social and economic changes removed the need for special treatment for women. The respondent State ’ s decisions as to the precise timing and means of putting right the inequality were not so manifestly unreasonable as to exceed the wide margin of appreciation allowed it in such a field (see paragraph 5 2 above). Similarly, the decision to link eligibility for REA to the pension system was reasonably and objectively justified, given that this benefit is intended to compensate for reduced earning capacity during a person ’ s working life. There has not, therefore, been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in this case.", "67. The above finding renders it unnecessary for the Court to consider separately the issues relating to the victim status of the third, fourth and fifth applicants (see paragraph 11 above)." ]

[ "2. The applicant was born in 1975 and lives in Rijeka. She was represented by Ms K. Jajaš, a lawyer practising in Rijeka.", "3. The Government were represented by their Agent, Ms Š. Stažnik.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant had been employed, with short interruptions, since 1993. Her last relevant employment had lasted from 19 August 2006 until 31 October 2009. Since 1 November 2009 she had been unemployed.", "6. On 17 November 2009 the applicant underwent in vitro fertilisation. The doctor in charge recommended that she take rest ( mirovanje ).", "7. On 27 November 2009 the applicant entered into an employment contract with company N. (hereinafter “the company”), which had its headquarters near Split, about 360 kilometres away from the applicant’s place of residence. Pursuant to the contract, the applicant was to start full-time work on administrative tasks in Split on that date for a monthly salary of 4,400 Croatian kunas (HRK; approximately 600 euros (EUR)).", "8. On 11 December 2009 the applicant’s application to register with the compulsory health insurance scheme was filed with the Croatian Health Insurance Fund ( Hrvatski zavod za zdravstveno osiguranje ) and she was registered as an insured employee.", "9. On 14 December 2009 the applicant started feeling nauseous. Her doctor established that the in vitro fertilisation had been successful, and that the applicant needed rest owing to pregnancy-related complications. A period of sick leave was thus prescribed.", "10. On 17 December 2009 an ultrasound confirmed that the applicant was pregnant with twins.", "11. On 28 December 2009 the applicant filed a request for payment of salary compensation during her sick leave on account of pregnancy-related complications (see paragraph 26 below).", "12. On 5 January 2010 the relevant office of the Croatian Health Insurance Fund (hereinafter “the Fund”), of its own motion, initiated a review of the applicant’s health insurance status.", "13. On 16 February 2010 the Fund reopened the case concerning the applicant’s health insurance and rejected her application for registration as an insured employee, along with her request for salary compensation due to sick leave on account of pregnancy-related complications. It based its decision on an in-house expert report according to which, when the applicant had taken up her employment with the company on 27 November 2009, she had been medically unfit for employment because she had undergone in vitro fertilisation ten days earlier. It was therefore considered that her employment was fictitious and aimed solely at obtaining pecuniary advantages related to the status of employed persons, including salary compensation during her absence from work due to pregnancy-related complications.", "14. The applicant challenged this decision before the Central Office of the Croatian Health Insurance Fund (hereinafter “the Central Office”). She argued that she had felt well after undergoing the in vitro fertilisation and that she had had no way of knowing whether the implantation would be successful. There had therefore been no reason for her to miss out on an opportunity to take up employment on 27 November 2009.", "15. According to an expert report by a specialist in gynaecology and obstetrics dated 3 March 2010 and submitted by the applicant, on the date on which the applicant took up employment with the company she had been healthy and awaiting the results of her in vitro fertilisation. The expert also stressed that neither the applicant nor her gynaecologist could have known in advance whether the in vitro fertilisation would be successful and how the pregnancy would develop.", "16. Following the applicant’s appeal, the Central Office carried out a further assessment of the circumstances of the applicant’s employment and her medical condition. According to the information obtained from her employer, the applicant was to work at the company headquarters in Split, but a part of her tasks could be performed by teleworking from home. Her employer confirmed that her position in the company required travelling within and outside Croatia. The Central Office also obtained another in-house expert report, the relevant part of which reads as follows:", "“In the case at hand, [the applicant] had been unfit to work on 27 November 2009 because the gynaecologist recommended that she rest following the implantation of two fertilised ova, that is to say, as of 17 November 2009. In other words, rest was recommended ten days prior to [the applicant’s] employment.", "We would emphasise that, on the date on which she entered into the employment contract, namely 27 November 2009, [the applicant] might not have known whether she was pregnant but in any event she should have rested until a BHCG test could be performed; this was planned for 3 December 2009. It is standard practice for gynaecologists to recommend rest immediately after in vitro fertilisation and embryo transfer until the outcome of the procedure can be established (via a BHCG test to determine whether pregnancy has occurred). Rest in these cases entails not only avoiding physical and psychological effort, but in particular avoiding travel owing to its negative mechanical effects (shaking) during the sensitive phase following embryo transfer and its potential implantation. Besides, every journey involves a potentially stressful situation and may negatively impact the outcome of the pregnancy because, in the experience of gynaecologists, psychological stability improves the chances of a favourable outcome of in vitro fertilisation.”", "17. On the basis of the above evidence, the Central Office of the Croatian Health Insurance Fund dismissed the applicant’s appeal on 30 March 2010, holding that although pregnancy in itself could not be a reason for not taking up employment, the particular circumstances of the applicant’s case suggested that her employment could be considered fictitious and aimed solely at obtaining salary compensation granted to employed persons.", "18. The applicant challenged this decision before the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), arguing, in particular, that she had been discriminated against as a woman who had undergone in vitro fertilisation. The applicant expressly relied on the Prevention of Discrimination Act and the Convention. She also explained that she had planned to move close to Split, where her husband had his registered residence and that most other employees of the company had residence elsewhere, since the nature of the company’s work had been compatible with teleworking, which she did.", "19. On 5 December 2012 the High Administrative Court dismissed the applicant’s administrative action, upholding the reasoning of the administrative bodies. It stressed that, in view of her in vitro fertilisation, on 27 November 2009 the applicant had not been fit to take up employment that was at a distance from her place of residence and also required travelling. The relevant part of that court’s judgment reads as follows:", "“The facts established in the proceedings resulting in the impugned decision lead to the conclusion that on the day of entering into the employment contract [the applicant] had been unfit to work and, in that most sensitive phase of a twin pregnancy, had been unfit to fulfil the obligations from her employment within the meaning of section 3(1) of the Labour Act providing that the employee is to personally perform activities for which he concluded an employment contract, in the [applicant’s] case administrative tasks in a city rather far from her place of residence, with the obligation of travel within the country and abroad. These facts lead to the conclusion that the employment was not entered into with a view to fulfilment of mutual obligations of the employer and employee but that the present case concerns conclusion of an employment contract exclusively in order to benefit from obligatory social security benefits. In this court’s view, such a contract cannot be basis for obtaining the status of an insured person.", "The court finds [the applicant’s] discrimination complaint ill-founded, since she was not denied, on the basis of either her sex or her pregnancy, the right to take up employment or related rights (and specifically the rights stemming from compulsory health insurance). Pregnancy is not an obstacle to taking up employment, and any restriction of an employment-related right in the case of an employee who has actually entered into an employment contract during pregnancy (if that pregnancy does not affect the pregnant woman’s ability to work) would constitute a prohibited interference with her rights. However, in the present case it has been established that [the applicant] had undergone in vitro fertilisation ten days prior to the conclusion of the employment contract, as a consequence of which, according to concurring expert opinions (which are not in contradiction with the medical documentation in the case file), at the time of the conclusion of the employment contract [the applicant] had been unfit for work. Therefore, it is this court’s opinion that the competent bodies did not deprive [the applicant] of her rights under the compulsory health insurance scheme in breach of the Constitution, [the Convention] or [the applicable legislation] ...”", "20. The applicant then lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), reiterating her previous arguments and alleging that she had been discriminated against.", "21. Meanwhile, the applicant complained to the Gender Equality Ombudsperson ( Pravobraniteljica za ravnopravnost spolova ) alleging discrimination. On 18 December 2010 the Ombudsperson informed the applicant that she had issued a warning to the Fund that its decision in the applicant’s case had violated the prohibition of less favourable treatment on grounds of pregnancy, and that this constituted discrimination based on sex. The Ombudsperson stressed that the relevant authorities’ interpretation of the applicant’s situation had been based on the premise that every woman who had undergone in vitro fertilisation should be considered physically unfit to take up employment, and that a women who was undergoing in vitro fertilisation or pregnant would not in reality be employed by any employer. She also recommended to the Fund that it abandon its interpretation of the relevant guidelines in similar cases, according to which a woman undergoing in vitro fertilisation or otherwise liable to have a high-risk pregnancy was unfit to perform any type of work.", "22. On 22 April 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, upholding the findings of the administrative authorities and the High Administrative Court. This decision, which was served on the applicant’s representative on 29 April 2015, reads, in so far as relevant, as follows:", "“The Constitutional Court notes that [it has been established in the proceedings that the applicant], who lives in Rijeka, entered into an employment contract on 27 November 2009 with [the company], which has its headquarters in Klis and one employee.", "The employment contract stipulated that [the applicant was to perform her duties in Split], and it transpires from the statement made by the employer ... that only part of her contractually established duties could be performed at her place of residence in Rijeka.", "The Constitutional Court points out that the distance between Rijeka and Split is ... 360.82 kilometres by road ...", "Therefore, the Constitutional Court considers that in the present case the administrative authorities ... were justified in checking whether the employment contract at issue had been entered into solely in order to acquire rights arising out of the compulsory medical insurance scheme, or with a view to establishing an employment relationship.”", "23. Meanwhile, according to the information provided by the Fund, the applicant’s employment insurance with the company had been terminated with effect as of 13 December 2009." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Relevant domestic law AND PRACTICE", "24. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) read as follows:", "Article 14", "“All persons in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth, education, social status or other status.”", "Article 62", "“The state shall protect maternity....”", "Article 64 § 3", "“Young people, mothers ... shall be entitled to special protection at work.”", "25. The relevant provisions of the Labour Act ( Zakon o radu, Official Gazette no. 38/95 with subsequent amendments) read as follows:", "Section 3(2)", "“All measures regulated by this law ... and by the employment contract, relating to the special protection of certain categories of employees, and in particular those concerning the protection of ... pregnant women ..., shall not be considered discriminatory, nor can they be the basis for discrimination.”", "Section 7(1)", "“The person providing employment (hereinafter ‘the employer’) is under an obligation to assign tasks to the employee and to pay his or her salary for the work performed; the employee is under an obligation to personally perform the assigned work, complying with the instructions given by the employer in accordance with the nature and the type of work.”", "Section 64", "“1. The employer may not, on grounds of pregnancy, refuse to employ a woman, dismiss her or transfer her to another position, save in accordance with section 65 of this Act [which provides for temporary transfer at the pregnant woman’s own request or following the decision of employer if so required by her health condition].", "2. The employer may not request any information concerning a woman’s pregnancy or instruct another person to request such information...”", "26. The relevant provisions of the Compulsory Health Insurance Act ( Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 150/08, 94/09 and 153/09), in force at the material time, read as follows:", "Section 26", "“An insured person shall be entitled to salary compensation in relation to the use of health care under compulsory health insurance, or other circumstances provided for in this Act, if he/she is:", "...", "3. isolated as a carrier or due to an outbreak of contagion in his/her environment, or temporarily incapacitated for work as a result of donating live tissue or organs for transplantation to another insured person of the Fund,", "4. designated to accompany the insured person referred for treatment or medical examination provided by an entity contracted with the Fund outside the place of domicile or residence of the insured person being referred,", "5. designated to care for a sick child or spouse, under conditions prescribed by this Act,", "6. temporarily incapacitated for work due to pregnancy- and childbirth-related illness and complications,", "7. temporarily prevented from working on account of taking maternity leave and the right to work half-time, in accordance with section 15(2) and (3) of the Act on maternity and parental allowance,", "8. temporarily incapacitated for work on account of using leave for the death of a child, birth of a stillborn child or the death of a child during maternity leave,", "...”", "Section 28", "“1. Salary compensation from section 26, items 3 to 8 of this Act shall be paid to the insured person by the Fund from the first day of the use of that right...”", "Section 42", "“(2) Salary compensation shall be 100 % of the [calculation] base during:", "...", "2. sick leave due to pregnancy- and childbirth-related illness and complications,", "...”", "Section 43", "“1. Salary compensation paid by the Fund shall be payable ... provided that, prior to the date of occurrence of the insured event giving rise to the entitlement to salary compensation, the insured person had ...[been] employed or ... pursu[ed] economic activity or a professional activity independently ..., or ... receiv[ed] salary compensation pursuant to this Act after the termination of employment ..., [for] a period of insurance with the Fund of at least 12 months without interruption or 18 months with interruptions in the past two years (prior insurance)...”", "Section 104", "“1. The status of insured persons shall be determined by the Fund on the basis of applications for compulsory health insurance filed in accordance with the provisions of this Act by persons paying contributions ...", "2. Applications to register with the compulsory health insurance scheme or to change or terminate registration shall be filed within 15 days from the date of creation, change or termination of the circumstances giving rise to the status of insured person...”", "Section 106", "“1. Following receipt of the application to register for compulsory health insurance, and for the entire duration of the insured person’s status, the Fund shall have the right and obligation to verify the circumstances on the basis of which the application was made, or on which an individual’s status has been recognised.", "2. At the request of the Fund, all natural and legal persons who have submitted an application to register for compulsory health insurance ... have to produce all facts and evidence proving the validity of their registration, or the validity of the status of insured person.", "3. If the Fund refuses an application for registration, establishes that the insured person is to be insured on a different ground, or disputes the status of a person insured with the compulsory health insurance scheme owing to the absence of a factual basis for such status, it shall issue a decision which will be served on the person who sought registration ...”", "27. The relevant provisions of the Regulations on rights, conditions and method of enjoyment of rights from compulsory health insurance ( Pravilnik o pravilima, uvjetima i načinu ostvarivanja prava iz obveznog zdravstvenog osiguranja, Official Gazette no. 67/09), as in force at the material time, read as follows:", "Section 6", "“2. Any registration [with the Fund] must be based on true facts and existence of actual circumstances which give the right to obtaining compulsory health insurance, and the Fund is entitled and required to, in line with these Regulations, upon receipt of the registration and throughout the duration of the status of the insured person, to verify the existence of the circumstances under which the application was filed and/or the basis on which the person is recognised the status of an insured person.", "3. Should such verification result in establishing that the circumstances required to obtain the status [of an insured person] ... do not exist or... that the registration is based on false information, the Fund shall reject the latter or reopen the proceedings in order to establish the insured person’s status ...”", "28. The relevant provisions of the Prevention of Discrimination Act ( Zakon o suzbijanju diskriminacije, Official Gazette no. 85/2008) provide as follows:", "Section 1", "“(1) This Act ensures the protection and promotion of equality as the highest value of the constitutional order of the Republic of Croatia; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour, gender, language, religion, political or other conviction, national or social origin, state of wealth, membership of a trade union, education, social status, marital or family status, age, health, disability, genetic inheritance, gender identity, expression or sexual orientation.", "(2) Discrimination within the meaning of this Act means putting any person in a disadvantageous position on any of the grounds under subsection (1) of this section, as well as his or her close relatives. ...”", "Section 16(1)", "“Anyone who considers that, owing to discrimination, any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue, and may also seek protection in separate proceedings under section 17 of this Act.”", "Section 17", "“(1) A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this Act may bring a claim and seek:", "1. a ruling that the defendant has violated the plaintiff’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff’s right to equal treatment (claim for an acknowledgment of discrimination);", "2. a ban on [the defendant’s] undertaking acts which violate or may violate the plaintiff’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken (claim for a ban or for removal of discrimination);", "3. compensation for pecuniary and non-pecuniary damage caused by the violation of the rights protected by this Act (claim for damages);", "4. an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant’s expense.”", "29. The relevant provisions of the Gender Equality Act ( Zakon o ravnopravnosti spolova, Official Gazette nos. 82/08 and 69/17) read as follows:", "Section 6", "“(1) Discrimination on the grounds of sex...: any difference, exclusion or restriction made on the grounds of sex with the effect or purpose to jeopardise or frustrate recognising, benefiting from or exercising human rights and fundamental freedoms in the political, social, cultural, economic, civil or other area on the grounds of equality between men and women, education, economic, social, cultural, civil and any other sphere of life.", "(2) ... Less favourable treatment of women for reasons of pregnancy and maternity shall be deemed to be discrimination...”", "Section 9", "“(3) Measures aimed at protecting women, in particular in relation to pregnancy and maternity, shall not be deemed to be discrimination.”", "Section 13", "(1) There shall be no discrimination in the field of employment and occupation in the public or private sector, including public bodies, in relation to: ...", "7. pregnancy, giving birth, parenting and any form of custody..”.", "30. The Government have submitted the following judgments of the (High) Administrative Court, in which pregnant women have been considered to have entered into fictitious employment during their pregnancies:", "- Us-4154/2006-4 of 4 February 2009, in which a pregnant woman concluded an employment contract for cleaning services three months before her delivery date;", "- Us-9890/2005-6 of 5 February 2009, in which a pregnant woman concluded an employment contract four months before her delivery date and was found unfit to work as a salesperson due to a pre-existing medical condition;", "- Us-3136/2003-4 of 11 July 2007, in which a pregnant woman concluded an employment contract, went on pregnancy-related sick leave and only thereafter filed the requisite registration with the Fund;", "- Us-10040/2002-4 of 29 November 2006, in which a pregnant woman had first been employed a month before her delivery date;", "- Us-2885/2006 of 4 December 2008, in which a pregnant woman had been employed by her mother late in her high-risk pregnancy;", "- Us-2953/2006 of 11 December 2008, in which a pregnant woman concluded an employment contract 17 days before her departure on obligatory maternity leave;", "- Us-2955/2006-5 of 11 December 2008, in which a pregnant woman concluded an employment contract three days before her departure on maternity leave;", "- Us-5531/2006-4 of 12 March 2009, in which a pregnant woman submitted her application for registration as an employed person the day after she had given birth to her third child;", "- Us-9223/2002-4 of 28 December 2006, in which a pregnant woman had concluded an employment contract when she was 35 weeks pregnant for a job that required hours of standing, bending over and carrying;", "- Us-1464/2006-6 of 20 November 2008, in which a pregnant woman had concluded an employment contract when she was 36 weeks pregnant;", "- Us-2958/2006-5 of 11 December 2008, in which a pregnant woman concluded an employment contract with her mother and 20 days later went on pregnancy-related sick leave.", "31. The Government have also submitted the following judgments of the (High) Administrative Court, in which the employment entered into by a woman during pregnancy had not been found fictitious.", "In judgment Us-6545/2002-9 of 5 October 2006 the court concluded that the administrative authorities had failed to established whether or not a pregnant woman had actually started performing her employment tasks.", "In judgment Us-11891/2005-4 of 28 May 2009, the court, insofar as relevant, held as follows:", "“[The competent authority] doubted the claimant’s application for insurance based on employment and in such a case it should have primarily established whether the claimant actually worked on the basis of the concluded employment contract. That means that the [competent authority] should have established whether there had been elements of an employment relationship, e.g. working hours and salary, and in particular whether the claimant had started working and how much she had worked. The [competent authority] did not establish any of the foregoing, but instead based its decision on the conclusion that the claimant had been unfit to work on the day of entering into employment, which fact in this court’s opinion has not been correctly established. This is because [the competent authorities] based [their decisions] essentially on the assumption that the claimant had been unfit to work because she had been at an advanced stage of her pregnancy, because it had been her sixth pregnancy and because she was an older pregnant woman. This opinion, however, is not based on any specialist opinion on the basis of which it could have actually been established whether the claimant had been fit to work...”", "In judgment Us-6588/2005-5 of 5 June 2008 a pregnant woman concluded an employment contract with her father in law at an advanced stage of pregnancy and the medical expert opinion concluded that she had been medically fit for work.", "32. The relevant part of the 2012 Annual report of the Gender Equality Ombudsperson, published in March 2013, read as follows:", "“For several years now, the Ombudsperson has been regularly warning about the discriminatory practice developed by the Croatian Health Insurance Fund throughout the last decade, which it consistently applies to pregnant women despite frequent warnings about its unlawfulness. That discriminatory practice is based on the Fund’s stereotypical attitude that a woman who had entered employment at an advanced stage of pregnancy... irrefutably concluded a fictitious employment contract aimed at abusing the health insurance system. The Fund in such cases appropriates itself judicial functions and declares such a contract fictitious even when the Croatian Employment Fund considers such an employment contract formally valid... Once it takes the stance that a pregnant woman’s employment contract is fictitious, it automatically deprives her of the status of an employed insured person and denies her the right to compensation of salary during sick leave for pregnancy-related complications and the right to birth allowances during maternity leave. This practice, based on the stereotype that women during their pregnancies... enter employment with fraudulent intentions, is contrary to the Gender Equality Act and the Labour Act and is insulting to the dignity of pregnant women. In order to ensure that the Fund changes the said practice, the Ombudsperson did not only send a number of warnings based on discrimination complaints of women, but also decided to act proactively and organised a meeting on 9 October 2012 with the representatives of the Ministry of Health, Ministry of social politics and youth and the Fund. This led to the conclusion that the said practice of the Fund was indeed problematic from the point of view of the protection of social rights of pregnant women, following which the Minister of Health in October requested the Fund to take steps in order to implement the agreement reached and subsequently inform the Ombudsperson about the actions taken. The Ombudsperson wishes to stress in the report that the Fund on 25 March 2013 accepted her recommendations and stated in its letter that ‘regional offices [of the Fund] have been instructed that, in proceedings concerning recognition of status in compulsory health insurance on the basis of employment, they may only assess whether the employment relationship at issue has been validly concluded – [i.e. whether formal requirements have been fulfilled] – but not whether the employment relationship is legally valid. In cases of doubt as to the legality of an employment relationship, it is necessary to institute civil proceedings which would establish the validity of the employment’.”", "RELEVANT LAW AND PRACTICE OF THE EUROPEAN UNIONDirectives of the Council of the European Union", "Directives of the Council of the European Union", "Directives of the Council of the European Union", "33. The relevant provisions of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, read as follows:", "“Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; whereas provision should be made for such dismissal to be prohibited;", "...", "Whereas, moreover, provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and or entitlement to an adequate allowance;", "...", "Article 10", "Prohibition of dismissal", "In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that:", "1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;", "2. if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;", "3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.”", "34. The relevant provisions of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (which repealed Directive 76/207/EEC) read as follows:", "“Whereas:", "...", "23. It is clear from the case-law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Such treatment should therefore be expressly covered by this Directive.", "24. The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman’s biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be without prejudice to Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. This Directive should further be without prejudice to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.", "25. For reasons of clarity, it is also appropriate to make express provision for the protection of the employment rights of women on maternity leave and in particular their right to return to the same or an equivalent post, to suffer no detriment in their terms and conditions as a result of taking such leave and to benefit from any improvement in working conditions to which they would have been entitled during their absence ...”", "Article 29", "Gender mainstreaming", "“Member States shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to in this Directive.”", "Case-law of the Court of Justice of the European Union", "35. In its case-law, the Court of Justice of the European Union (hereinafter, “the CJEU”) established that, as only women could become pregnant, a refusal to employ a pregnant woman based on her pregnancy or her maternity, or the dismissal of a pregnant woman on such grounds, amounted to direct discrimination on grounds of sex, which could not be justified by any other interest.", "36. In the Dekker judgment (8 November 1990, C ‑ 177/88, ECLI:EU:C:1990:383), the CJEU ruled that a refusal to employ a woman who met the conditions for a post because she was pregnant constituted direct discrimination on grounds of sex. The applicant in the Dekker case applied for the post, was considered the most suitable candidate, but ultimately was not hired because she was pregnant. The employer argued that, in accordance with the law, she was not eligible to be paid pregnancy benefits by the relevant insurer, and thus the employer would have to pay those benefits during her maternity leave. As a result, the employer would be unable to afford to employ a replacement during her absence, and would thus be short-staffed. The CJEU found as follows.", "“12 In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave.”", "37. The CJEU further held that any unfavourable treatment directly or indirectly connected to pregnancy or maternity constituted direct sex discrimination.", "In the Webb judgment (14 July 1994, C-32/93, ECLI:EU:C:1994:300), the CJEU found that the situation of a pregnant woman could not be compared with that of a man who was absent because of illness. The applicant in the Webb case found out that she was pregnant a few weeks after being hired to replace a worker who had herself become pregnant. She was dismissed as soon as the employer found out about her pregnancy. The CJEU ruled as follows:", "“24 First, in response to the House of Lords’ inquiry, there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons.", "25 As Mrs Webb rightly argues, pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex. Moreover, in the Hertz judgment, cited above, the Court drew a clear distinction between pregnancy and illness, even where the illness is attributable to pregnancy but manifests itself after the maternity leave. As the Court pointed out (in paragraph 16), there is no reason to distinguish such an illness from any other illness.", "26 Furthermore, contrary to the submission of the United Kingdom, dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the directive.", "27 In circumstances such as those of Mrs Webb, termination of a contract for an indefinite period on grounds of the woman’s pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged ...”", "38. In the Tele Danmark judgment (4 October 2001, C-109/00, ECLI:EU:C:2001:513), the CJEU extended the protection for absence due to pregnancy to temporary contracts. The applicant was recruited for a six ‑ month fixed period. She failed to inform the employer that she was pregnant, even though she was aware of this when the contract was concluded. Because of her pregnancy, she was unable to work during a substantial part of the term of that contract. The relevant parts of the judgment read as follows:", "“29 In paragraph 26 of Webb, the Court also held that, while the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during the period corresponding to maternity leave is essential to the proper functioning of the undertaking in which she is employed. A contrary interpretation would render ineffective the provisions of Directive 76/207.", "30 Such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term.", "31 Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy.", "32 Moreover, the duration of an employment relationship is a particularly uncertain element of the relationship in that, even if the worker is recruited under a fixed term contract, such a relationship may be for a longer or shorter period, and is moreover liable to be renewed or extended.”", "39. With regard to the possibility of a female worker being dismissed by reason of a pregnancy-related illness which arose prior to her maternity leave, the CJEU has held that, although pregnancy is in no way comparable to a pathological condition, it is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy. In Brown (Case C-394/96, 30 June 1998, ECLI:EU:C:1998:331) the CJEU found that those disorders and complications, which could cause incapacity for work, formed part of the risks inherent in the condition of pregnancy and were thus a specific feature of that condition.", "40. In McKenna (Case C-191/03, 8 September 2005, ECLI:EU:C:2005:513) the CJEU concluded that Community law did not require the maintenance of full pay for a female worker who is absent during her pregnancy by reason of an illness related to that pregnancy. During an absence resulting from such an illness, a female worker may thus suffer a reduction in her pay, provided that she is treated in the same way as a male worker who is absent on grounds of illness, and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers.", "41. In Mayr (28 February 2008, C-506/06, ECLI:EU:C:2008:119), the CJEU held as follows:", "“49 The Court has already held that, given that male and female workers are equally exposed to illness, if a female worker is dismissed on account of absence due to illness in the same circumstances as a man then there is no direct discrimination on grounds of sex...", "50 It is true that workers of both sexes can be temporarily prevented from carrying out their work on account of the medical treatment they must receive. Nevertheless, the treatment in question in the main proceedings – namely a follicular puncture and the transfer to the woman’s uterus of the ova removed by way of that follicular puncture immediately after their fertilisation – directly affects only women. It follows that the dismissal of a female worker essentially because she is undergoing that important stage of in vitro fertilisation treatment constitutes direct discrimination on grounds of sex.”", "Relevant international materials", "42. The relevant parts of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW”), which was ratified by the respondent State on 9 September 1992, read as follows:", "Article 5", "“States Parties shall take all appropriate measures:", "(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women...”", "Article 11", "“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:", "(a) The right to work as an inalienable right of all human beings;", "...", "(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;", "(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.", "2. In order to prevent discrimination against women on the grounds of ... maternity and to ensure their effective right to work, States Parties shall take appropriate measures:", "(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave ...;", "(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;", "...”", "43. The relevant provisions of the Maternity Protection Convention 2000 (No. 183), adopted by the General Conference of the International Labour Organisation (ILO) on 15 June 2000, read as follows:", "Benefits", "Article 6", "“1. Cash benefits shall be provided, in accordance with national laws and regulations, or in any other manner consistent with national practice, to women who are absent from work on leave referred to in Articles 4 or 5 [maternity leave and leave in case of illness or complications].", "...", "5. Each Member shall ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom this Convention applies.", "...", "8. In order to protect the situation of women in the labour market, benefits in respect of the leave referred to in Articles 4 and 5 shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice. An employer shall not be individually liable for the direct cost of any such monetary benefit to a woman employed by him or her without that employer’s specific agreement except where:", "(a) such is provided for in national law or practice in a member State prior to the date of adoption of this Convention by the International Labour Conference; or", "(b) it is subsequently agreed at the national level by the government and the representative organizations of employers and workers.”", "Employment protection and non-discrimination", "Article 8", "“1. It shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave referred to in Articles 4 or 5 or during a period following her return to work to be prescribed by national laws or regulations, except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing. The burden of proving that the reasons for dismissal are unrelated to pregnancy or childbirth and its consequences or nursing shall rest on the employer.", "2. A woman is guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of her maternity leave.”", "44. Article 12 § 1 of the Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”), which entered into force in respect of the respondent State on 1 October 2018, provides as follows:", "“Parties shall take the necessary measures to promote changes in the social and cultural patterns of behaviour of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men.”", "45. The relevant parts of the Appendix to the Council of Europe’s Committee of Ministers’ Recommendation Rec(2019)1 on preventing and combating sexism, adopted on 27 March 2019, reads as follows:", "“For the purpose of this Recommendation, sexism is:", "Any act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex, which occurs in the public or private sphere, whether online or offline, with the purpose or effect of: ...", "v. maintaining and reinforcing gender stereotypes.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 14 taken IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION", "46. The applicant complained that she had been discriminated against, as a pregnant woman who had undergone in vitro fertilisation, in the revocation of her status as an insured employee, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention. Those provisions read as follows:", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "Admissibility", "47. The Government submitted that the applicant had not exhausted domestic remedies in that she had failed to institute separate civil proceedings for damages under the Prevention of Discrimination Act.", "48. The applicant disagreed.", "49. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70-71, 25 March 2014, and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015).", "50. Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others, cited above, § 72).", "51. However, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII; and Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010).", "52. In previous cases against Croatia, the Court has already established that the Prevention of Discrimination Act provides two alternative avenues through which an individual can seek protection from discrimination: the individual concerned may either raise his or her discrimination complaint in the proceedings concerning the main subject matter of a dispute, or opt for separate civil proceedings, as provided for under section 17 of that Act (see paragraph 28 above). Given that the applicant in the present case explicitly complained of discrimination both before the High Administrative Court and the Constitutional Court (see paragraphs 18 and 20 above), the Court considers that she was therefore not required to pursue another remedy under the Prevention of Discrimination Act with essentially the same objective in order to meet the requirements of Article 35 § 1 of the Convention (see Guberina v. Croatia, no. 23682/13, § 50, 22 March 2016).", "53. The Court further notes that the parties did not dispute the applicability of Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention to the facts of the present case. In view of its case-law on the matter (see, among many other authorities, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 55-56, ECHR 2005 ‑ X), the Court considers those provisions applicable to the present case.", "54. The Court also notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "55. The applicant maintained that she had been discriminated against both on the basis of her sex and on the basis of the medical procedure she had had to undergo in order to become pregnant. When she took up her employment, she had had no way of knowing whether the in vitro fertilisation had been or would be successful. The fact that the authorities concluded retroactively that she had been unfit to work at that moment was discriminatory because they would never have come to such a conclusion in respect of a woman who had not undergone in vitro fertilisation and become pregnant.", "56. The applicant stressed that the domestic law expressly provided pregnant women with the possibility of taking up employment and that the Fund had no legal basis on which to question employment contracts entered into freely by private employers and pregnant women. Such practice was in direct opposition to the CJEU’s case-law, which considered any unfavourable treatment towards pregnant women to be direct discrimination on the basis of sex. Moreover, the practice was based on the premise that no “reasonable” employer would actually enter into an employment contract with a pregnant woman and that no “honest” pregnant woman would take up employment in such circumstances.", "(b) The Government", "57. The Government maintained that the applicant had been treated in the same way as all pregnant women who sought to obtain undue pecuniary gain from the State health insurance scheme by entering into fictitious employment contracts and thereby obtaining the status of insured employed persons. The Government explained that, unlike unemployed women, pregnant women who were employed were entitled to compensation of salary on account of pregnancy-related complications, paid for from the State budget and not by their employer.", "58. In support of their claim, the Government submitted a number of judgments by the High Administrative Court showing that the State Health Insurance Fund regularly performed factual checks in all cases it deemed suspicious (see paragraphs 30 and 31 above). If it established that a person’s insurance status had been obtained on the basis of a fictitious transaction, as in the applicant’s case, it revoked that insurance. The applicant could therefore not be compared to other women who became pregnant by means of in vitro fertilisation or to pregnant women who were employed, but only to those pregnant women (regardless of the method they had used to become pregnant) who had entered into an employment contract immediately before claiming salary compensation on account of pregnancy ‑ related complications or precisely in order to do so.", "59. The Government further argued that the conduct of the national authorities in the applicant’s case had had the legitimate aim of preventing individuals from “cheating the system”. The authorities had a duty to implement the applicable regulations and verify all the facts of relevance to the enjoyment of particular rights. Failure to perform such checks with a view to revoking the rights of individuals not entitled to them would jeopardise not only the rights of persons who were actually entitled to such rights, but also the entire healthcare system.", "60. The applicant had entered into an employment contract despite the fact that she had been advised to rest following her in vitro fertilisation. Although at that time her pregnancy might not have been confirmed, she could have at least assumed that she would get pregnant after the procedure, and she would probably have become aware of that fact as early as 3 December 2009, when the relevant blood test was to be performed. However, the applicant had nonetheless entered into an employment contract with a company whose headquarters were located in Split, about 360 km away from her place of residence. Given that the applicant had never registered her residence in Split, the Government took the view that she had never actually intended to work there.", "61. Finally, the Government pointed out that the applicant had not been left without healthcare protection during her pregnancy despite the Fund’s revocation of her employed person’s status. The applicant had continued to enjoy the healthcare protection afforded to all pregnant women in the respondent State, except for salary compensation during sick leave due to pregnancy-related complications, which was granted exclusively to employed persons.", "The Court’s assessment", "(a) General principles", "62. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not mean that the comparator groups be identical. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see Molla Sali v. Greece ([GC], no. 20452/14, §§ 133 and 135, 19 December 2018).", "63. The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017).", "64. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example (see Fábián, cited above, § 115). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). Any measures taken on such grounds, including the reduction of the amount of pension normally payable to the qualifying population, must nevertheless be implemented in a non-discriminatory manner and comply with the requirements of proportionality (see Lakićević and Others v. Montenegro and Serbia, nos. 27458/06 and 3 others, § 59, 13 December 2011, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2006 ‑ VI). In any case, irrespective of the scope of the State’s margin of appreciation, the final decision as to the observance of the Convention’s requirements rests with the Court (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012 (extracts)).", "65. The Court has also stressed on many occasions that the advancement of the equality of the sexes is a major goal in the member States of the Council of Europe. This means that, outside the context of transitional measures designed to correct historic inequalities (see J.D. and A v. the United Kingdom, nos. 32949/17 and 34614/17, § 89, 24 October 2019), very weighty reasons would have to be advanced before a difference in treatment on the grounds of sex could be regarded as being compatible with the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, and Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, § 46, 25 July 2017). Consequently, where a difference in treatment is based on sex, the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require that the measure chosen should in general be suited to the fulfilment of the aim pursued, but it must also be shown that it was necessary in the circumstances (see Emel Boyraz v. Turkey, no. 61960/08, § 51, 2 December 2014).", "66. The Court has acknowledged in its case-law, albeit indirectly, the need for the protection of pregnancy and motherhood (see, mutatis mutandis, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 82, 24 January 2017; Konstantin Markin, cited above, § 132; Alexandru Enache v. Romania, no. 16986/12, §§ 68 and 76-77, 3 October 2017; and Petrovic v. Austria, 27 March 1998, § 36, Reports of Judgments and Decisions 1998 ‑ II).", "67. As to the burden of proof in relation to Article 14 of the Convention, the Court has held that once an applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, ECHR 2007 ‑ IV; and Guberina v. Croatia, no. 23682/13, § 74, 22 March 2016).", "(b) Application of those principles to the facts of the present case", "(i) Whether there has been a difference in treatment", "68. The Court notes that the applicant complained that she had been treated differently both on the basis of her sex and on account of the manner in which she became pregnant.", "69. The Court observes that only women can be treated differently on grounds of pregnancy, and for this reason, such a difference in treatment will amount to direct discrimination on grounds of sex if it is not justified (see Napotnik v. Romania, no. 33139/13, § 77, 20 October 2020). The Court further notes that a similar approach was also taken by the CJEU in its case-law (see paragraphs 35-41 above) and that it is consistent with domestic law (see paragraph 29 above).", "70. In the present case, the applicant was refused the status of an insured employee and, in that context, an employment-related benefit (compensation of salary during sick leave), on grounds of employment which had been declared fictitious due to her pregnancy. The Court notes that such a decision could only be adopted in respect of women, since only women could become pregnant. It therefore finds that in the applicant’s case such a decision constituted a difference in treatment on grounds of sex.", "71. Furthermore, in its below analysis the Court will also consider the fact that the applicant had become pregnant by way of in vitro fertilisation (compare Topčić-Rosenberg v. Croatia, no. 19391/11, § 40, 14 November 2013).", "(ii) Whether the difference in treatment was justified", "72. It remains to be assessed whether the difference in treatment of the applicant had an objective and reasonable justification.", "73. The Government argued that the decision to revoke the applicant’s insurance status had pursued the legitimate aim of the protection of public resources from fraudulent use, and the overall stability of the healthcare system (see paragraph 59 above). The Court would stress at the outset that a woman’s pregnancy as such cannot be considered fraudulent behaviour. Furthermore, the Court considers that the financial obligations imposed on the State during a woman’s pregnancy by themselves cannot constitute sufficiently weighty reasons to justify difference in treatment on the basis of sex (see paragraph 65 above; see also CJEU’s case-law in relation to employment of pregnant women cited at paragraphs 35-41 above and the relevant ILO standards cited at paragraph 43 above). Even assuming that the Court was generally prepared to accept the protection of public funds as a legitimate aim, it must establish whether in the context of the present case the impugned measure was necessary to achieve that aim, taking into consideration the narrow margin of appreciation afforded to States in cases where difference in treatment is based on sex (see paragraphs 65 and 69 above).", "74. In the present case, a short time after taking up new employment, the applicant requested certain benefits, notably the payment of salary compensation during her sick leave due to pregnancy-related complications. The Court notes that, as admitted by the Government, precisely because of the fact that she had entered into new employment such a short time before seeking the employment-related benefit in question, the relevant administrative authority of its own motion initiated review of the applicant’s health insurance status under the suspicion that her employment agreement had been concluded only for her to be able to claim the said benefit (see paragraphs 12 and 58 above).", "75. The Court acknowledges that under the applicable legislation the relevant authorities were at all times entitled to verify whether the facts on which an individual based his or her health insurance status were still valid (see paragraphs 26 and 27 above). At the same time the Court observes that it would appear from the Administrative Court’s case-law, on which the Government relied, that such review in practice frequently targeted pregnant women and that women who concluded an employment contract at an advanced stage of their pregnancies or with close family members, were automatically put in the “suspicious” category of employees whose employment merited verification (see paragraphs 30 and 31 above), although under domestic law no employer is allowed to refuse to employ a pregnant woman because of her condition (see paragraph 25 above). The Court finds such an approach of the competent Croatian authorities generally problematic (see in that respect the conclusions of the Gender Equality Ombudsperson cited at paragraph 32 above).", "76. Turning to the applicant’s case, the Court notes the authorities’ conclusion that the applicant had been unfit to work on the date of concluding her employment contract because her doctor had recommended her rest following her in vitro fertilisation ten days before. In particular, the authorities relied on the fact that the applicant was expected to work at the employer’s headquarters over 350 km away from her place of residence and that travel in her condition might reduce her chances of a favourable outcome of the fertilisation (see paragraphs 16 and 19 above). In that connection, the Court considers that, as a matter of principle, even where the availability of an employee is a precondition for the proper performance of an employment contract, the protection afforded to a woman during pregnancy cannot be dependent on whether her presence at work during maternity is essential for the proper functioning of her employer or by the fact that she is temporarily prevented from performing the work for which she has been hired. Moreover, the Court is of the view that introducing maternity protection measures is essential in order to uphold the principle of equal treatment of men and women in employment (see, mutatis mutandis, the CJEU case-law cited at paragraphs 35-41 above). This is equally reflected in the Croatian legislation, including the Constitution (see paragraphs 24 and 25 above).", "77. The Court notes that, in deciding the applicant’s case, the domestic authorities limited themselves to concluding that, due to the in vitro fertilisation, she had been medically unfit to take up the employment in question thereby implying that she had to refrain from doing so until her pregnancy was confirmed. The Court observes that this conclusion was in direct contravention to both domestic and international law (see paragraphs 25, 35-41 and 43 in connection with paragraph 75 above). Moreover, it was tantamount to discouraging the applicant from seeking employment due to her possible prospective pregnancy.", "78. The foregoing alone is sufficient for the Court to conclude that the applicant had been discriminated on the basis of her sex. However, it considers it necessary to point out some additional factors, which made the difference in treatment suffered by the applicant even more striking.", "79. In this connection, the Court observes that, prior to taking up the impugned employment, the applicant had had some fourteen years of work experience, during which she had regularly paid contributions to the compulsory health insurance scheme (see paragraph 5 above). It can thus not be argued that she had failed to contribute to the insurance fund from which she subsequently requested certain benefits, notably the payment of salary compensation during sick leave due to pregnancy-related complications.", "80. The Court further observes that, when entering into her employment, the applicant had been well aware of the fact that she had undergone in vitro fertilisation, but at the same time had no way of knowing whether the procedure had been successful or whether it would result in her becoming pregnant. Moreover, at the material time she could not have known that her future pregnancy, if any, would have resulted in complications which would have required her to be issued sick leave for a prolonged period of time.", "81. However, the Court notes that, in reviewing the applicant’s case, the competent Croatian authorities failed to provide any explanation of how the applicant could have consciously concluded a fraudulent employment contract, without even knowing whether or not she would actually become pregnant, in particular bearing in mind that she had not been under any legal obligation to report the fact that she had undergone in vitro fertilisation or that she might be pregnant at the moment of concluding her employment contract and that the domestic law prohibits the employer to request any information concerning a woman’s pregnancy or instruct another person to request such information (see section 64 of the Labour Act, cited at paragraph 25 above, see also paragraphs 35-41 and 43 above). Indeed, the Court is of the view that asking a woman information about her possible pregnancy or planning thereof or obliging her to report such fact at the moment of recruitment would also amount to direct discrimination based on sex.", "82. What is more, the Court observes that the authorities had reached their conclusion in the applicant’s case without assessing whether or not she had ever actually taken up her duties and started performing her work assignments for the employer (see paragraphs 31 and 32 above). Had the authorities had any evidence of fraud or invalidity of the applicant’s employment relationship, nothing prevented them from instituting relevant proceedings in that respect (see paragraph 32 above). The authorities also never sought to establish whether the in vitro fertilisation she had undergone had necessitated her absence from work due to health reasons. Furthermore, there is nothing to show that women who had undergone in vitro fertilisation would generally be unable to work during their fertility treatment or pregnancy.", "83. Lastly, the Court cannot but express concern about the overtones of the domestic authorities’ conclusion, which implied that women should not work or seek employment during pregnancy or mere possibility thereof (see in this sense also the conclusions of Gender Equality Ombudsperson cited at paragraph 21 above). In the Court’s view, gender stereotyping of this sort presents a serious obstacle to the achievement of real substantive gender equality, which, as already stated, is one of the major goals in the member States of the Council of Europe (see paragraph 65 above; see also Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, §§ 48-54, 25 July 2017). Moreover, such considerations by the domestic authorities have not only been found in breach of the domestic law (see paragraph 32 above) but also appear to have been at odds with relevant international gender equality standards (see the CEDAW, the Istanbul Convention, ILO and the relevant Committee of Ministers Recommendation all cited at paragraphs 42-45 above).", "84. In sum, the Court would reiterate that a refusal to employ or recognise an employment-related benefit to a pregnant woman based on her pregnancy, amounts to direct discrimination on grounds of sex, which cannot be justified by the financial interests of the State (see paragraph 73 above; see also, for a similar approach CJEU’s case-law in relation to employment of pregnant women cited at paragraphs 35-41 above and the relevant ILO standards cited at paragraph 43 above). On the basis of the foregoing, the Court considers that the difference in treatment to which the applicant, as a woman who had become pregnant by means of in vitro insemination, had been subjected had not been objectively justified or necessary in the circumstances.", "85. There has accordingly been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention.", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 12 TO THE CONVENTION", "86. The applicant complained that she had been discriminated against, in breach of the general prohibition of discrimination contained in Article 1 of Protocol No. 12 to the Convention, which reads as follows:", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "87. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "88. Bearing in mind the above conclusion as regards Article 14 read in conjunction with Article 1 of Protocol No. 1, the Court considers that it is not necessary to examine separately the present complaint.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "89. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "90. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, corresponding to the salary compensation which she had been denied. She also claimed EUR 15,000 in respect of non-pecuniary damage.", "91. The Government contested those claims.", "92. The Court notes that the applicant did not substantiate any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "93. The applicant also claimed EUR 1,150 for the costs and expenses incurred before the domestic courts and the Court.", "94. The Government contested that claim.", "95. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed in full, plus any tax that may be chargeable to the applicant.", "Default interest", "96. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. Particular circumstances of the case", "6. The applicant is a Netherlands national born in 1924 and resident in Amstelveen. He has never been married and has no children.", "7. On 30 September 1987 the Inspector of Direct Taxes sent the applicant an assessment of his contributions for the year 1985 under various social security schemes, including the General Child Care Benefits Act ( Algemene kinderbijslagwet, see paragraph 21 below).", "8. The applicant filed an objection ( bezwaarschrift - see paragraph 27 below) to this assessment on 21 October 1987. He based his argument on section 25 (2) of the General Child Care Benefits Act and on the royal decree of 27 February 1980 ( Staatsblad (Official Gazette) no. 89 (\"the royal decree\") - see paragraph 23 below), by virtue of which unmarried childless women of 45 years or over were exempted from the obligation to pay contributions under the General Child Care Benefits Act; in his view the prohibition of discrimination such as was contained in Article 1 of the Netherlands Constitution (see paragraph 18 below) and Article 26 of the International Covenant on Civil and Political Rights (see paragraph 20 below) implied that this exemption should be extended to men in the same situation.", "9. The applicant later received similar assessments for the years 1986, 1987 and 1988, against which he likewise filed objections. The Inspector reserved his decision on these, pending the outcome of the proceedings relating to the 1985 assessment.", "10. On 25 November 1987 the Inspector issued a decision declaring the first objection unfounded on the ground that \"under national legislation the application of section 25 (2) of the General Child Care Benefits Act is not possible since the person by whom the contributions are due is not female\".", "11. The applicant appealed to the Amsterdam Court of Appeal (see paragraph 27 below) on 29 December 1987. Relying on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) and Article 26 of the International Covenant on Civil and Political Rights, he claimed that the provisions of the royal decree should be given a \"gender neutral\" construction. Section 25 (2) of the General Child Care Benefits Act and the royal decree were in his view discriminatory.", "The Inspector lodged a written defence. Thereafter the applicant filed a reply, and the Inspector a rejoinder.", "12. The exemption enjoyed by unmarried childless women of 45 or over from the obligation to pay contributions under the General Child Care Benefits Act was abolished by the Act of 21 December 1988 ( Staatsblad 1988, no. 631), with effect from 1 January 1989.", "13. The Amsterdam Court of Appeal gave its judgment on 6 October 1989, dismissing the applicant ’ s appeal and confirming the Inspector ’ s decision. Its reasoning included the following:", "\"5.4. Neither the wording of the impugned provision nor its drafting history indicates that the legislature intended to discriminate or has caused discrimination. In particular, it cannot be said that the legislator wished to discriminate against unmarried men who had reached the age of 45 before the beginning of the calendar year and were not entitled to child care benefits under the General Child Care Benefits Act vis-à-vis comparable women.", "5.5. By means of the provision set out in section 25 (2) of the General Child Care Benefits Act, the legislature merely wished to take due account of the difference in factual situation between women over 45 and men over 45 with regard to having (begetting or raising) children.", "5.6. The fact, as stated by [the applicant], that it appears from statistical data that older men only rarely beget children makes no difference to what is considered in paragraph 5.5 above. The legislature has assessed the factual situation of the group of women referred to in section 25 (2) of the General Child Care Benefits Act differently on the basis of the possibility of their having children and not on the basis of the reality of their having children.", "Older men ’ s possibilities of procreating are fundamentally different from those of older women, in the sense that this difference is considerable irrespective of these statistical data.", "5.7. The difference in treatment opposed by [the applicant] is therefore not based on a difference in sex, but on a difference in factual situation.", "This conclusion is not altered by the fact that this difference (partly) coincides with the difference between the sexes. The impugned provision does not therefore contravene the prohibition of discrimination.", "5.8. It cannot be excluded in principle that the fairness and acceptability of the General Child Care Benefits Act benefit by taking account of these differences in factual situation.", "It not being for the Court of Appeal to rule on the intrinsic value of a statute, the Court cannot consider whether the differences in factual situation entirely justify the exemption in question.", "5.9. Even if it were correct, contrary to what is set out above, that the impugned provision contravenes the prohibition of discrimination, this would not benefit [the applicant].", "The Court of Appeal would not be at liberty to extend the exemption in question to one or more groups of individuals for whom the legislature definitely did not intend it.", "If the argument based on prohibition of discrimination should have to be accepted in principle, this could only lead to a finding that the impugned provision had no binding force.", "This would not be in [the applicant ’ s] interest.\"", "14. The applicant filed an appeal on points of law ( beroep in cassatie - see paragraph 27 below) to the Supreme Court ( Hoge Raad ) on 7 December 1989. In so far as is relevant here, he challenged the above reasoning of the Court of Appeal relying on Article 14 of the Convention (art. 14) and Article 26 of the International Covenant on Civil and Political Rights of 1966.", "The Inspector responded in writing.", "15. The Supreme Court dismissed the appeal on 11 December 1991. Its reasoning included the following:", "\"3.4. The third ground of appeal [ middel ] argues that the principle set out in section 25 (2) of the General Child Care Benefits Act violates Article 26 of the International Covenant on Civil and Political Rights and Article 14 of the Convention (art. 14). To the extent that the ground of appeal relies on the latter provision (art. 14), it must fail as the present case does not relate to any of the rights and freedoms enumerated in the Convention.", "...", "3.6. In view of, inter alia, the drafting history of the provision in question the limitation of the exemption set out in section 25 (2) of the General Child Care Benefits Act to women of 45 and over was inspired by the idea that it would not be reasonable to levy contributions under the General Child Care Benefits Act from these women, since it had to be assumed that a great number of them would never have children and were prevented by social and - unlike men - biological factors from ever bearing children.", "The Supreme Court need not consider the question of whether the above-mentioned fact constitutes an objective and reasonable justification for exempting only women of 45 and over from paying contributions under the General Child Care Benefits Act.", "Since this difference in treatment between (unmarried) women and men, which in any case, given their biological differences, cannot be said to lack all reasonable ground, has been removed with effect from 1 January 1989 by the abolition of the exemption by the Act of 21 December 1988 ( Staatsblad 1988, no. 631) there is no reason for a court to intervene by declaring the exemption applicable, for the year in question, to unmarried men of 45 and over.", "...\"", "16. After the delivery of this judgment the Inspector issued decisions dismissing the applicant ’ s objections to the assessments for the years 1986, 1987 and 1988 (see paragraph 9 above).", "17. According to figures published by the Netherlands Central Bureau for Statistics ( Centraal Bureau voor de Statistiek ), the number of \"legitimate\" children born alive in the Netherlands to fathers aged 45 or over in 1985 was 2,341, or approximately 1,43 % of the total number of \"legitimate\" children born that year (163,370).", "The corresponding figure for mothers aged 45 or over was 177, or approximately 1 per thousand.", "No figures are available for children born out of wedlock." ]

[ "II. Relevant domestic law and practice", "A. The Constitution", "18. Article 1 of the 1983 Constitution provides:", "\"All persons present in the Netherlands shall be treated in the same way in similar situations. Discrimination on the ground of religion, philosophical convictions, political leanings, race, sex, or any other ground whatsoever shall not be allowed.\"", "19. Under Netherlands constitutional law, courts may not review the constitutionality of statutes. Article 120 reads:", "\"The courts shall not rule on the constitutionality [ grondwettigheid ] of statutes and treaties.\"", "Delegated legislation, on the other hand, may be examined to determine whether it conforms with the Constitution and even with unwritten general principles of law (see the judgment of the Supreme Court of 1 December 1993, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases - \"BNB\") 1994, no. 64).", "20. Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published.", "With regard to the prohibition of discrimination, the Netherlands is a party to, inter alia, the International Covenant on Civil and Political Rights of 1966 (\"the Covenant\"), Article 26 of which provides as follows:", "\"All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.\"", "B. The General Child Care Benefits Act", "21. The General Child Care Benefits Act was enacted in 1962.", "Until 1 January 1989 (see paragraph 28 below), section 25 of the General Child Care Benefits Act provided as follows:", "\"1. Contributions are due by:", "(a) every person by whom contributions are due by way of assessment under the General Old Age Pensions Act ( Algemene ouderdomswet );", "(b) ...", "2. The first paragraph, under (a), may be derogated from by royal decree, subject to conditions and limitations if need be, in respect of unmarried women who have reached the age of 45.", "3. ...\"", "Persons referred to in sub-paragraph (a) were all those who had not yet reached the age of 65 and who were either Netherlands residents or, if not Netherlands residents, subject to the Wages (Tax Deduction) Act (Wet op de loonbelasting ) in respect of work carried out in the Netherlands under a contract of employment (section 6 (1) of the General Old Age Pensions Act).", "22. Any person who was either a Netherlands resident or subject to the Wages (Tax Deduction) Act in respect of work carried out in the Netherlands under a contract of employment was entitled to benefits under the General Child Care Benefits Act for children for whose maintenance he or she was financially responsible, whether they were his or her own by birth or marriage or foster children (sections 6 and 7 of the General Child Care Benefits Act). Such entitlement was not subject to the condition that the person concerned had contributed to the scheme.", "C. The royal decree", "23. At the time of the events complained of, the derogation from the general rule made possible by section 25 (2) was provided for by the royal decree of 27 February 1980 ( Staatsblad no. 89). Section 1 provided:", "\"In derogation from section 25 (1) (a) of the General Child Care Benefits Act, no contributions shall be due by an unmarried woman who has reached the age of 45 before the beginning of the calendar year and who is not entitled to child care benefits under that Act.\"", "D. Relevant domestic case-law", "1. Supreme Court", "24. The Supreme Court recognised in its judgment of 2 February 1982 ( Nederlandse Jurisprudentie (Netherlands Law Reports - \"NJ\") 1982, no. 424 (corrected in NJ 1982, no. 475)) that Article 26 of the Covenant is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts (see paragraph 20 above).", "However, in a number of judgments it has declined to construe Article 26 of the Covenant in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted illegal discrimination between men and women, holding that, where various options were open to the national authorities to remove such discrimination, the choice should be left to the legislature in view of the social and legal implications attending each possible course of action (see the judgments of the Supreme Court of 12 October 1984, NJ 1985, no. 230, and 23 October 1988, NJ 1989, no. 740).", "In its judgment of 16 November 1990 (NJ 1991, no. 475), cited in the European Court of Human Right ’ s Kroon and Others v. the Netherlands judgment of 27 October 1994 (Series A no. 297-C), the Supreme Court came to a similar finding with regard to Article 14 of the Convention taken together with Article 8 (art. 14+8) (loc. cit., p. 50, para. 14).", "2. Central Appeals Tribunal", "25. The Central Appeals Tribunal ( Centrale Raad van Beroep ) - the administrative tribunal competent to decide most types of social-security disputes but not, inter alia, disputes relating to contributions due under the General Child Care Benefits Act - has held that Article 26 of the Covenant is in principle directly applicable in the field of social security.", "Thus, in its judgment of 14 May 1987 ( Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports - \"RSV\") 1987, no. 246), the Central Appeals Tribunal considered discriminatory the rule that to qualify for benefits under the Victims of Persecution (1940-1945) Benefits Act (Wet uitkering vervolgingsslachtoffers 1940-1945) a married woman had to be a \"breadwinner\" whereas no such requirement applied to married men. In three judgments delivered on 5 January 1988 ( Nederlandse Jurisprudentie - Administratiefrechtelijke Beslissingen (Netherlands Administrative Law Reports - \"AB\") 1988, nos. 252-54), it came to a similar finding with regard to the General Disability Act ( Algemene arbeidsongeschiktheidswet ), but only with effect from 1 January 1980 - the date on which legislation entered into force that was intended to remove discrimination but which had failed to do so adequately.", "Similarly, in its judgments of 7 December 1988 (NJCM-Bulletin 1989, no. 14, p. 71, and AB 1989, no. 10), it recognised the right of a widower to claim a widow ’ s pension ( weduwenpensioen ) under the General Widows and Orphans Act ( Algemene weduwen - en wezenwet ).", "E. Levying of contributions; procedural provisions", "26. Contributions under the General Child Care Benefits Act and certain other social-security schemes were levied by the Tax Inspector in the same way as income tax (sections 21 and 22 of the General Exceptional Medical Expenses Act ( Algemene wet bijzondere ziektekosten ), declared applicable by analogy under section 26 of the General Child Care Benefits Act).", "27. It was possible to file an objection against an assessment with the Inspector (section 23 (1) of the State Taxes (General Provisions) Act - Algemene wet inzake rijksbelastingen ).", "An appeal against the Inspector ’ s decision lay to the Court of Appeal (sections 2 and 26 (1) of the State Taxes (General Provisions) Act). A further appeal could be filed on points of law to the Supreme Court (section 95 of the Judicial Organisation Act - Wet op de rechterlijke organisatie ).", "F. The Act of 21 December 1988", "28. As noted above (see paragraph 12), the possibility provided for under section 25 (2) came to an end when the Act of 21 December 1988 ( Staatsblad 1988, no. 631) came into effect on 1 January 1989. Accordingly, on that date men and women became equally liable to pay contributions under the General Child Care Benefits Act whatever their age and whether or not they were married or had children.", "PROCEEDINGS BEFORE THE COMMISSION", "29. Mr van Raalte applied to the Commission on 23 April 1992. He relied on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), alleging that he had been the victim of discriminatory treatment with regard to the obligation to pay contributions under the General Child Care Benefits Act.", "30. The Commission declared the application (no. 20060/92) admissible on 10 April 1995. In its report of 17 October 1995 (Article 31) (art. 31), it expressed the opinion that there had been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) (twenty-three votes to five). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT", "31. The Government concluded their memorial by expressing the opinion that there had not been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1).", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)", "32. The applicant claimed that the levying of contributions under the General Child Care Benefits Act (see paragraph 21 above) from him, an unmarried childless man over 45 years of age, constituted discrimination on the ground of gender prohibited by Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1), given the fact that at the time of the events complained of no similar contributions were exacted from unmarried childless women of that age (see paragraphs 21 and 23 above).", "Article 14 of the Convention (art. 14) and Article 1 of Protocol No. 1 (P1-1) provide as follows:", "Article 14 of the Convention (art. 14)", "\"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "Article 1 of Protocol No. 1 (P1-1)", "\"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions (P1-1) shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\"", "The Commission agreed with the applicant that such violation had taken place. The Government contested this.", "A. Whether Article 14 of the Convention (art. 14) is applicable", "33. As the Court has consistently held, Article 14 of the Convention (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to \"the enjoyment of the rights and freedoms\" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, para. 22).", "34. The applicant and the Commission both considered that the case concerned the right of the State to \"secure the payment of taxes or other contributions\" and therefore came within the ambit of Article 1 of Protocol No. 1 (P1-1). The Government did not contest this.", "35. The Court sees no reason to hold otherwise, and accordingly finds that Article 14 (art. 14) is applicable.", "B. Arguments before the Court", "1. The applicant", "36. In the applicant ’ s submission, differences in treatment based on sex were already unacceptable when section 25 of the General Child Care Benefits Act was enacted in 1962. The wording of Article 14 of the Convention (art. 14) showed that such had been the prevailing view as early as 1950.", "Moreover, legal and social developments showed a clear trend towards equality between men and women. The applicant drew attention to, inter alia, the Court ’ s Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94), which stated explicitly that \"the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe\" and that \"very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention\" (loc. cit., p. 38, para. 78).", "The Netherlands legislature had in fact recognised the unacceptable nature of the distinction in question by enacting, in 1988, legislation abolishing it.", "In any case, statistics showed that very few men aged 45 or over fathered children; on the other hand, women aged over 45 were still able to have children and in many cases did so, thus invalidating the justification of any distinction based on the theoretical possibility of procreating.", "Lastly, the right to claim benefits under the General Child Care Benefits Act was in no way related to the payment of contributions.", "2. The Government", "37. The Government denied that there had been a difference in treatment between persons in similar situations. Women aged 45 or over differed fundamentally from men of the same age in that for biological reasons they were much less likely to be able to have children.", "To the extent that it had to be assumed that there had been a difference in treatment between persons in similar situations, the biological difference referred to constituted in itself sufficient objective and reasonable justification. In addition, when the rule in question had been enacted it had been justified by the social attitudes prevailing at the time: it was assumed that women who had no children, and who in all probability never would, suffered thereby and it was considered wrong to impose on such women the additional emotional burden of having to pay contributions under a child care benefits scheme.", "Admittedly, the exemption in question had been abolished with effect from 1 January 1989, essentially in response to a change in social attitudes towards unmarried childless women. It was, however, inevitable that social legislation should to some extent lag behind developments in society and allowances had to be made.", "More generally, the Government referred to the wide margin of appreciation which in their view Article 1 of Protocol No. 1 (P1-1) allowed the State in \"enforcing such laws as it deems necessary ... to secure the payment of taxes or other contributions or penalties\".", "3. The Commission", "38. The Commission was of the opinion that there had been a difference in treatment based on gender and that this difference was not justified.", "Moreover, it considered that the social attitudes relied on by the Government had been overtaken by developments well before 1985. It referred, inter alia, to the Court ’ s finding of a violation of Article 14 taken together with Article 4 para. 3 (d) (art. 14+4-3-d) in its above-mentioned Karlheinz Schmidt judgment, the financial contribution in that case having been imposed in 1982.", "C. The Court ’ s assessment", "1. Applicable principles", "39. For the purposes of Article 14 (art. 14) a difference of treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, among other authorities, the above-mentioned Karlheinz Schmidt judgment, pp. 32-33, para. 24).", "However, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see, among other authorities, the above-mentioned Karlheinz Schmidt judgment, ibid.).", "2. Whether there has been a difference in treatment between persons in similar situations", "40. At the time of the events complained of contributions under the General Child Care Benefits Act were levied from unmarried childless men aged 45 or over but not from unmarried childless women of the same age (see paragraphs 21 and 23 above). This undoubtedly constitutes a \"difference in treatment\" between persons in similar situations, based on gender.", "The factual difference between the two categories relied on by the Government, namely their respective biological possibilities to procreate, does not lead the Court to a different conclusion. It is precisely this distinction which is at the heart of the question whether the difference in treatment complained of can be justified.", "3. Whether there is objective and reasonable justification", "41. The Court notes that the General Child Care Benefits Act set up a social-security scheme to which, in principle, the entire adult population was subject, both as contributors and as potential beneficiaries.", "A key feature of this scheme was that the obligation to pay contributions did not depend on any potential entitlement to benefits that the individual might have (see paragraph 21 above). Accordingly the exemption in the present case ran counter to the underlying character of the scheme.", "42. While Contracting States enjoy a certain margin of appreciation under the Convention as regards the introduction of exemptions to such contributory obligations, Article 14 (art. 14) requires that any such measure, in principle, applies even-handedly to both men and women unless compelling reasons have been adduced to justify a difference in treatment.", "43. In the present case the Court is not persuaded that such reasons exist.", "In this context it must be borne in mind that just as women over 45 may give birth to children (see paragraph 17 above), there are on the other hand men of 45 or younger who may be unable to procreate.", "The Court further observes that an unmarried childless woman aged 45 or over may well become eligible for benefits under the Act in question; she may, for example, marry a man who already has children from a previous marriage.", "In addition, the argument that to levy contributions under a child care benefits scheme from unmarried childless women would impose an unfair emotional burden on them might equally well apply to unmarried childless men or to childless couples.", "44. Accordingly, irrespective of whether the desire to spare the feelings of childless women of a certain age can be regarded as a legitimate aim, such an objective cannot provide a justification for the gender-based difference of treatment in the present case.", "4. Conclusion", "45. There has been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1).", "II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)", "46. Article 50 of the Convention (art. 50) provides as follows:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "The applicant claimed damages as well as reimbursement of costs and expenses.", "A. Damages", "47. Mr van Raalte asked the Court to award him compensation for pecuniary damage in the amount of the contributions which he had paid under the General Child Care Benefits Act in 1985 through 1988. These totalled 1,959 Netherlands guilders (NLG). He also asked the Court to award him interest over these sums at the statutory rate.", "He also claimed NLG 4,740 for non-pecuniary damage. He stated that it had been \"very painful\" for him as an unmarried childless man to have to pay contributions under the General Child Care Benefits Act.", "48. The Government stated that had there not been the difference in treatment complained of, men and women would have been equally liable to pay contributions under the General Child Care Benefits Act, so that the applicant would have had to pay them in any case.", "The applicant ’ s claim for non-pecuniary damage was in their view incompatible with the applicant ’ s argument that such feelings, if suffered by women, could not justify extending the exemption only to them.", "49. The Delegate of the Commission assumed that the applicant would be in a position to recover the contributions paid under domestic law and also considered that the applicant was entitled to some compensation for non-pecuniary damage.", "50. The Court notes that the finding of a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (art. 14+P1-1) does not entitle the applicant to retrospective exemption from contributions under the scheme in question. Accordingly the applicant ’ s claim for pecuniary damage has not been substantiated.", "As regards the applicant ’ s claim for non-pecuniary damage, the Court considers that the present judgment in itself constitutes sufficient just satisfaction.", "B. Costs and expenses", "51. The applicant asked the Court to award him NLG 7,836.75 for costs and expenses incurred in the domestic proceedings, NLG 6,768 for costs and expenses incurred in the proceedings before the Commission and NLG 8,666.25 for costs and expenses incurred before the Court.", "The Government did not comment. The Delegate of the Commission considered that the applicant was entitled to the sums sought.", "52. The Court has no reason to doubt that these costs and expenses were actually incurred. It also accepts that they were necessarily incurred by the applicant in his attempts to prevent the violation found and later to obtain redress therefor. Finally, it finds them reasonable as to quantum.", "The applicant ’ s claims under this head, which total NLG 23,271, are therefore accepted in their entirety.", "C. Default interest", "53. According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "11. The applicant and her husband have always lived in the Netherlands. By a decision of 7 August 1984, the applicant's husband was granted a married man's old-age pension under the General Old Age Pensions Act ( Algemene Ouderdomswet ) commencing on 1 August 1984. However, pursuant to the then section 10 of the Act, his pension was reduced by 38% as neither he nor the applicant had been insured under the Act during nine periods between 1 February 1957 and 1 August 1977 when he had worked in Germany and had an old-age insurance under the German social-security legislation. These nine periods amounted in total to nineteen years. No appeal was filed against this decision.", "12. After the applicant reached the age of 65 in 1989, the Board of the Social Insurance Bank ( Sociale Verzekeringsbank ), by a decision of 14 February 1989, granted the applicant an old-age pension under the General Old Age Pensions Act commencing on 1 March 1989. As had occurred with her husband's pension, her pension was also reduced by 38%. The applicant filed an appeal with the Arnhem Appeals Tribunal ( Raad van Beroep ), as it was then known, complaining that this reduction in her old-age pension constituted discriminatory treatment.", "13. In its decision of 10 January 1990 the Appeals Tribunal noted that, under sections 7 and 9 of the General Old Age Pensions Act, a married person – like the applicant – who had been insured under this Act and had reached the age of 65 was entitled to an old-age pension amounting to 50% of the net minimum wage per month.", "14. However, under the terms of section 13 of the Act, this amount could be reduced by 2% for each full year in which the person concerned had not been insured between the ages of 15 and 65. The Appeals Tribunal further noted that, according to section 6(1) of the Act, those insured were persons between the ages of 15 and 65 who were either resident in the Netherlands or, if not, were liable to payment of salaries tax ( loonbelasting ) in respect of work carried out in the Netherlands under a contract of employment. Under the present subsection 2 of section 6 of the Act, it was possible, by way of an Order in Council ( Algemene Maatregel van Bestuur ), to extend or limit the group of insured persons as an exception to the general rule contained in section 6(1).", "15. The Appeals Tribunal referred to the case-law of the Central Appeals Tribunal ( Centrale Raad van Beroep ) to the effect that the question whether or not a person was insured under the General Old Age Pensions Act fell to be determined on the basis of the rules in force at the relevant time.", "16. It further noted that, by virtue of five consecutive royal decrees on the extension and limitation of the group of insured persons ( Koninklijke Besluiten Uitbreiding en Beperking van de kring der verzekerden ) that had been issued under section 6(1) of the Act and had remained in force until 1 April 1985, persons residing in the Netherlands but working abroad under a contract of employment and insured under a foreign social-security scheme by virtue of that employment were not insured under the Act. That limitation also applied to a woman married to a person who, pursuant to those royal decrees, was not insured under the Act.", "17. The Appeals Tribunal noted that it was not in dispute that, during the relevant periods, the applicant's husband had been working in Germany and had been subject to German social-security legislation in accordance with Ordinance no. 3 of the Council of Ministers of the European Communities (until 1 October 1972) and subsequently Ordinance 1408/71.", "18. It found that, in these circumstances, the Social Insurance Bank had correctly concluded that the applicant was not insured under the General Old Age Pensions Act for the period her husband had worked in Germany.", "19. However, as regards the question whether that situation was compatible with the principle of equality, in particular the prohibition on discrimination between men and women, the Appeals Tribunal noted that there was a provision in the royal decrees which rendered the insurance of married women under the Act dependent on their husbands being insured, whereas the decrees did not contain a comparable provision in respect of married men.", "20. The Appeals Tribunal examined the applicant's situation in the light of Article 26 of the International Covenant on Civil and Political Rights (ICCPR). It referred to the case-law of the Central Appeals Tribunal according to which, from 23 December 1984, this provision was also directly applicable in the Netherlands legal order in the field of social security. The Appeals Tribunal found that this implied that rights could be derived directly from this provision in so far as an application, after 23 December 1984, of statutory rules created a difference in treatment between men and women without any objective and reasonable justification, and led to a more unfavourable result than would have existed had there not been such a difference. It considered that the applicant had found herself in that situation as she had been awarded an old-age pension on 1 March 1989 from which 38% was deducted on the basis of rules which made an unjustified distinction between married men and women.", "21. The Appeals Tribunal noted that, from 1 April 1985 onwards, the principle of equal treatment between men and women had been incorporated in the General Old Age Pensions Act, and that this had resulted in the introduction of a system in which the entitlement to full benefits was made solely dependent on the question whether or not the person concerned had personally completed the qualifying years under the Act. It concluded, therefore, that married women, like the applicant, who had fully complied with the conditions for insurance under the Act, could not be regarded as having been uninsured during a certain period solely on grounds of marital status.", "22. Consequently, the Appeals Tribunal quashed the decision of 14 February 1989, in so far as the applicant's pension was reduced by 38%, upheld the remainder of the decision and ruled that the applicant was entitled to a full pension under the Act. The Board of the Social Insurance Bank filed an appeal with the Central Appeals Tribunal.", "23. In its judgment of 26 November 1993, following a hearing held on 15 October 1993, the Central Appeals Tribunal quashed the decision of 10 January 1990 and dismissed the applicant's appeal as ill-founded.", "24. The Central Appeals Tribunal noted at the outset that it was not in dispute between the parties that the applicant did not belong to the group of persons as defined in Article 2 of Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security. It considered that view to be correct and, consequently, held that the question of the reduction in the applicant's pension could not be examined in the light of the prohibition on discrimination set out in Article 4 § 1 of this directive.", "25. As regards the question whether the reduction in the applicant's pension was compatible with Article 26 of the ICCPR, the Central Appeals Tribunal considered that, from 23 December 1984 onwards, that provision could also be directly relied on in the field of social security. It also referred to the case-law according to which this implied that Contracting States to the ICCPR were obliged to ensure that their statutory rules were free of any form of discrimination prohibited by that provision. However, it said that a difference in treatment was not contrary to that provision where there were objective and reasonable grounds for the difference.", "26. In the light of those considerations, the Central Appeals Tribunal held that Article 26 of the ICCPR could not deprive a national statutory rule of its effect, according to which the level of benefits under a statutory insurance scheme – like the General Old Age Pensions Act – was made dependent on the question of whether the periods of insurance had been completed. It held that this was no different where it could be established that the disqualification of certain periods of insurance before 23 December 1984 was based on a domestic rule which made a difference in treatment on the basis of sex, as that rule had been in operation during a period in which Article 26 of the ICCPR was not yet directly applicable and could not, therefore, deprive the domestic rule of its earlier effect.", "27. The applicant's subsequent appeal on points of law to the Supreme Court ( Hoge Raad ) was dismissed on 29 May 1996. As to the applicant's argument that the Central Appeals Tribunal had failed to examine whether or not there was an objective and reasonable justification for the difference in treatment, the Supreme Court held that the Central Appeals Tribunal had correctly found that, as regards the periods in which the applicant had not been insured under the General Old Age Pensions Act, she could not rely on Article 26 of the ICCPR, as those periods predated the entry into force of that international instrument.", "28. In so far as the applicant complained that the Central Appeals Tribunal had unjustly failed to deprive the discriminatory rule at issue of its effect on grounds of incompatibility with the prohibition on discrimination contained in Article 1 of the Constitution ( Grondwet ), the Supreme Court held that the periods during which the applicant had not been insured under the Act predated the entry into force of Article 1 of the Constitution.", "29. In so far as the applicant relied on unwritten general principles of law ( algemene rechtsbeginselen ), in particular the principle of equality, the Supreme Court considered that, according to the explanatory memorandum ( Nota van Toelichting ) to the first royal decree on the extension and limitation of the group of insured persons of 20 December 1956, the exclusion was aimed at preventing an undesirable accumulation of benefits. According to the explanatory memorandum, the pension rights accrued by the man abroad were also considered to be intended to benefit his spouse.", "30. The Supreme Court held that in view of the social attitudes prevailing at the relevant time, that is to say the periods during which the applicant had not been insured under the General Old Age Pensions Act, the government of the time could have taken the view that in practically all cases it was the man who was the “breadwinner” so that it could, accordingly, exclude married women and did not have to make a separate provision for cases where the woman was the “breadwinner”. The Supreme Court held, therefore, that there was an objective and reasonable justification for the difference in treatment on grounds of sex which the exclusion entailed.", "31. The Supreme Court further rejected the applicant's argument based on the principle of equality contained in Article 4 § 1 of Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security, as the applicant fell outside the scope of Article 2 of the directive, which defined the group of persons to whom the directive applied." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "32. The General Old Age Pensions Act establishes a general old-age pension scheme for persons who have attained the age of 65. Under this scheme, all persons between the ages of 15 and 65 who reside in the Netherlands are insured. Contributions to the scheme are paid by all persons who are gainfully employed in the Netherlands.", "33. Entitlement to benefits under the General Old Age Pensions Act is not dependent on the level of contributions paid as, contrary to a social-security scheme based on employment ( werknemersverzekering ), it is a general social-security scheme ( volksverzekering ). The level of benefits is, however, linked to the period of insurance under the Act. Pursuant to section 13 (section 10 before 1 April 1985) of the Act, the pension entitlement is reduced by 2% for each year, between the ages of 15 and 65, that the person concerned was not insured under the Act on grounds of, inter alia, residence abroad. A person who has been insured under the Act for fifty years is entitled to a full pension.", "34. On 19 December 1978 the Council of the European Communities issued Directive 79/7/EEC on the gradual implementation of the principle of equal treatment of men and women in the field of social security, allowing member States a period of six years until 23 December 1984 within which to make any amendments to legislation which might be necessary in order to bring it into conformity with the directive.", "35. Until 1 April 1985 a married man was entitled to a pension under the General Old Age Pensions Act for a married couple equal to 100% of the minimum wage in force in the Netherlands. Unmarried persons of either sex were entitled to 70% of the minimum wage. A married woman had no entitlement in her own right. According to the royal decree on the extension and limitation of the group of insured persons, as amended on several occasions, a married woman residing in the Netherlands – whose husband was employed abroad and insured under the social-security system in the foreign country of employment – was not insured under the General Old Age Pensions Act.", "36. On 1 April 1985 married women became entitled in their own right to a pension under the General Old Age Pensions Act. Each spouse became entitled to a pension equal to 50% of the minimum wage. The position for unmarried persons remained unchanged. As a result of this change, married women are no longer excluded from insurance under the Act for periods when their husbands were employed abroad, provided that they themselves have continuously resided in the Netherlands or have paid contributions on the basis of gainful employment in the Netherlands.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "37. The applicant claimed that the reduction in her pension under the General Old Age Pensions Act constituted discrimination on the ground of sex prohibited by Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, in that at the relevant time a married woman was only insured under the Act for periods when her husband was insured, whereas there was no equivalent rule for married men.", "38. Article 14 of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 1 provides:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Applicability of Article 14 of the Convention", "39. The Government submitted that the proceedings in issue did not concern a right guaranteed by Article 1 of Protocol No. 1 and, consequently, fell outside the scope of Article 14 of the Convention. Relying, inter alia, on Gaygusuz v. Austria (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1129), the Government argued that benefits under social-insurance schemes characterised by the principle of social solidarity could not be regarded as “possessions” within the meaning of Article 1 of Protocol No. 1 in that, unlike systems under which the level of benefit was linked to contributions paid, a system based on social solidarity distributed the available resources equally among all claimants.", "40. The Government explained that, under the scheme set up by the General Old Age Pensions Act, everyone in gainful employment in the Netherlands contributed funds from which the pensions due under the General Old Age Pensions Act were paid. Persons who had reached the age of 65 or who had little or no income did not contribute to the scheme. Entitlement to a pension under the Act did not depend on whether or not contributions had been paid. Therefore, the group of contributors was different from the group of beneficiaries. Given the absence of a connection between contribution and entitlement under the scheme, the Government considered that a pension under the Act could not, therefore, be regarded as falling within the scope of Article 1 of Protocol No. 1.", "41. The applicant, who also relied on the Court's findings in Gaygusuz, contested the Government's arguments as to the applicability of Article 1 of Protocol No. 1. She argued that, in that case too, there had been no link between contributions paid and benefits received under the domestic emergency-assistance scheme. She submitted that pecuniary claims on the basis of statutory rules or regulations were closely linked to a person's social security and subsistence and thus of equal weight to other property rights. They therefore had to be considered as falling within the scope of Article 1 of Protocol No. 1.", "42. The Court reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV).", "43. The Court notes that, in its final decision on admissibility dated 3 October 2000, it held that the applicant's rights to a pension under the General Old Age Pensions Act could be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1 and that, consequently, Article 14 of the Convention was applicable.", "B. Compliance with Article 14 of the Convention", "1. Arguments before the Court", "44. The Government argued that there was an objective and reasonable justification for the difference in treatment complained of, and that the distinction fell within the Contracting States' margin of appreciation. On this point, the Government submitted that, given the prevailing social attitudes at the material time, a married woman's entitlement to insurance under the Act was linked to her husband as the latter was the breadwinner in the vast majority of cases. After social attitudes had changed, the system had been altered with effect from 1 April 1985 and gave married women an independent right to insurance and benefits under the Act. As changes in social attitudes occurred gradually, it was virtually impossible to indicate with precision when a change had taken place in society that eliminated a justification derived from social attitudes. However, the question of whether periods were insured had to be answered on the basis of the provisions that applied at the material time. Finally, arguing that the receipt in full of two or more social-security pensions should be avoided, the Government pointed out that the applicant was receiving a pension from a foreign country as well as a reduced pension under the General Old Age Pensions Act.", "45. The applicant submitted that the Government did not deny that the pension rules in force at the relevant time discriminated against married women and considered that there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised, namely to avoid the undesirable accumulation of pension rights. In the applicant's opinion other legislation could have been brought in. As to the point in time when social attitudes had changed, the applicant argued that even in 1957 the principle of equality and the resulting prohibition on discrimination were a general principle of both national and international law. In that connection, she referred to Article 1 of the 1948 Universal Declaration of Human Rights, which stated that “All human beings are born free and equal in dignity and rights”. She further referred, inter alia, to Article 14 of the Convention (1950), the Netherlands Act of 14 June 1956 abolishing the legal incapacity of married women, and Article 12 § 4 of the European Social Charter (1961), by which the Contracting States undertook to ensure equal treatment of their own nationals with nationals of other Contracting Parties in respect of social-security rights. The applicant was of the opinion that there were no weighty reasons to confront a small group of women, who did not fall within the scope of Directive 79/7/EEC, for the rest of their lives with the consequences of a discriminatory provision from the past that had been abolished in the meantime.", "2. The Court's assessment", "46. The Court reiterates that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see Thlimmenos, cited above, § 44).", "47. The Court notes that, in principle, all persons between the ages of 15 and 65 who reside in the Netherlands are insured under the General Old Age Pensions Act. It further notes that the applicant has always lived in the Netherlands. The only reason for the applicant's exclusion from insurance under the Act for a total period of nineteen years was the fact that she was married to a man who was not insured under the Act during periods of employment abroad. It is undisputed that a married man in the same situation as the applicant would not have been excluded from the insurance scheme in this manner.", "48. The Court concludes that the reduction in the applicant's benefits under the Act was therefore based exclusively on the fact that she is a married woman. It has not been argued that the applicant failed to satisfy any of the other statutory conditions for benefits under the Act.", "49. The Court considers that very strong reasons would have to be put forward before it could regard a difference in treatment based exclusively on the grounds of sex and marital status as compatible with the Convention.", "50. The Government argued that the undesirable accumulation of pension rights is an objective and reasonable justification for the difference in treatment made by the legislature. However, the Court notes in this respect that the legislation did not prevent a married man in the same situation as the applicant from accumulating pension rights.", "51. Even assuming that the Government's argument that at the material time social attitudes were different in that most of the breadwinners were married men, so that the difference in treatment was justified, were grounded, the Court considers it relevant that the Convention and Protocol No. 1 had already come into force in the Netherlands by 31 August 1954.", "52. Furthermore, when examining whether a difference in treatment can be regarded as justified, the Court does not only have regard to its aim at the time the relevant provisions were enacted, but also to its effects in the concrete case concerned. In the present case, the applicant received an old-age pension from 1 March 1989 onwards which was 38% less than that which a married man in the same situation would have received. In other words, the inequality in treatment inherent in the former legal rules materialised in 1989 when, given the prevailing social attitudes at that time, the aim pursued by the legal provisions concerned could no longer be upheld.", "53. In this connection, the Court also takes into account that, when the relevant legal rules were changed in 1985 in order to bring them into conformity with more modern standards of equality between men and women, no measures were taken to remove the discriminatory effect of the former legal rules.", "54. The Court therefore considers that the difference in treatment between married women and married men as regards entitlement to benefits under the General Old Age Pensions Act, of which the applicant was a victim, was not based on any “objective and reasonable justification”.", "55. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "56. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "57. For pecuniary damage the applicant claimed:", "(i) 31,267.94 euros [68,905.48 Netherlands guilders (NLG)] (EUR) in respect of loss of benefits under the General Old Age Pensions Act between 1 March 1989 and 1 January 2001 as a result of the reduction applied;", "(ii) EUR 14,347.70 [NLG 31,618.18] for legal interest on the loss of benefits under the Act between 1 March 1989 and 1 January 2001 as a result of the reduction applied;", "and, since under Netherlands law, the Court's finding of a violation of the applicant's rights under the Convention does not constitute a ground for withdrawal of the reduction of the applicant's benefits under the Act,", "(iii) EUR 48,560.16 [NLG 107,012.50] for the applicant's future loss of income resulting from the 38% reduction of her benefits under the Act.", "58. The Government – pointing out that the applicant is also a beneficiary of a German pension which should be taken into account in the determination of pecuniary damage – submitted that, in the event of a finding of a violation, they would undertake to make good the applicant's financial loss in accordance with the applicable legal rules and policy so it would not be necessary for the Court to make any award for pecuniary damage.", "59. The applicant further claimed EUR 4,537.80 [NLG 10,000] for non-pecuniary damage.", "60. The Government argued that the applicant had not specifically indicated what kind of damage she had incurred, and that no causal link had been established between the violation of the Convention and the sum claimed.", "61. The applicant also claimed EUR 8,326.66 [NLG 18,349.55] for legal costs incurred in both the domestic and the Convention proceedings.", "62. The Government submitted that only costs reasonably incurred in the Convention proceedings were eligible for compensation, in so far they were not covered by any legal-aid scheme.", "63. The Court reiterates that a judgment in which it finds a breach of the Convention imposes on the respondent State a legal obligation to put an end to such breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach ( restitutio in integrum ) (see Menteş and Others v. Turkey (Article 50), judgment of 24 July 1998, Reports 1998-IV, p. 1695, § 24, and Camp and Bourimi v. the Netherlands, no. 28369/95, § 49, ECHR 2000-X); that interest can be claimed from the dates on which each recoverable element of past pecuniary damage accrued (see Lustig-Prean and Beckett v. the United Kingdom (just satisfaction), nos. 31417/96 and 32377/96, § 28, 25 July 2000); and that, if it finds a breach of the Convention, it may award the applicant not only costs and expenses incurred before the Convention institutions, but also those incurred before the national courts for the prevention or redress of the violation (see Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998-VI, p. 2334, § 63).", "64. The Court considers, however, that the question of the application of Article 41 of the Convention is not ready for decision. In particular, as regards the applicant's claim for pecuniary damage, the Government have not indicated in a sufficiently concrete manner how they intend to make good the applicant's financial loss if a violation was found.", "65. Accordingly, it is necessary to reserve this question and to fix the further procedure, due regard being had to the possibility of an agreement between the respondent State and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant is a Czech national born in 1946 who lives in Vysoké Mýto (the Czech Republic ).", "6. The applicant was married from 1971 until 1998, when he divorced. On 28 May 1998 the applicant applied for custody of two of his four children, born in 1982 and 1985, maintaining that since August 1997 he and his wife had not lived together and that he cared for the two minor children himself.", "In a judgment of 16 July 1998 the Ústí nad Orlicí District Court awarded the applicant custody of the two children.", "7. On 14 November 2003 the Czech Social Security Administration ( Česká správa sociálního zabezpečení ) dismissed an application by the applicant for a retirement pension as he had not attained the pensionable age required by section 32 of the Pension Insurance Act, which was, in his case, sixty-one years and ten months.", "8. The applicant challenged the administrative decision before the Hradec Králové Regional Court ( Krajský soud ), arguing that given the fact that he had cared for two children, he was entitled to retire at the age of fifty-seven and had therefore reached the pensionable age.", "9. On 1 December 2004 the Regional Court stayed the proceedings in the applicant's case pending the outcome of the proceedings before the Constitutional Court ( Ústavní soud ), which was called upon to review the constitutionality of section 32 of the Pension Insurance Act in another case (no. Pl. ÚS 53/2004) brought before it by the Supreme Administrative Court ( Nejvyšší správní soud ). The Hradec Králové Regional Court joined the proceedings in that case as an intervening party.", "10. In judgment no. Pl. ÚS 53/2004 of 16 October 2007 the Constitutional Court dismissed the Supreme Administrative Court's petition to repeal section 32 of the Pension Insurance Act, finding that it was not discriminatory and was therefore compatible with Article 1 and Article 3 § 1, in conjunction with Article 30 § 1, of the Charter of Fundamental Rights and Freedoms.", "11. On 12 December 2007 the Regional Court dismissed the applicant's action, referring to the Constitutional Court's judgment no. Pl. ÚS 53/2004.", "12. By a judgment of 13 June 2008 the Supreme Administrative Court dismissed a cassation appeal by the applicant, relying on the aforesaid judgment of the Constitutional Court.", "13. Subsequently, the applicant lodged a constitutional appeal in which he alleged, inter alia, a violation of Article 14 of the Convention and Article 1 of Protocol No. 1.", "14. On 30 October 2008 the Constitutional Court rejected the constitutional appeal as manifestly ill-founded, emphasising, in particular, the discretion afforded to the legislature to implement preferential treatment, the objective and reasonable aim pursued by this preferential treatment of women and the relationship of proportionality between the means employed and the aim pursued." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Charter of Fundamental Rights and Freedoms (Constitutional Act no. 2/1993)", "15. Article 1 provides that all people are free with equal dignity and equal rights. Their fundamental rights and freedoms are inherent, inalienable, imprescriptible, and not subject to repeal.", "16. Under Article 3 everyone is guaranteed the enjoyment of his or her fundamental rights and basic freedoms without regard to gender, race, colour of skin, language, faith and religion, political or other conviction, national or social origin, membership of a national or ethnic minority, property, birth, or other status.", "17. Article 30 provides that citizens have the right to adequate material security in old age and during periods of incapacity to work, as well as in the case of the loss of their household provider.", "B. Development of the State pension schemes in the territory of the Czech Republic, with special regard to the State pensionable age", "18. Differentiated age limits for men and women for entitlement to State retirement pensions were first introduced by the Social Security Act ( no. 55/1956 ), which became effective on 1 January 1957. In general, the pensionable age for men was set at sixty years, while for women it was set at fifty-five years.", "19. The Social Security Act ( no. 101/1964 ), effective from 1 July 1964, specified differentials in female pensionable age based on the number of children women raised. The explanatory report on the bill noted the following:", "“This differentiated age limit for acquiring the right to retire reflects the different situation in the lives of mothers who, when they took care of children, also carried out duties in the family in addition to their employment duties.”", "20. The State Pension Insurance Act ( no. 155/1995 ), effective since 1 January 1996, provides for the basic State pension insurance coverage, laying down the conditions for eligibility for pensions, including retirement pensions, and the methods for calculating and paying out pensions. The pension scheme works on the pay-as-you-earn principle, whereby employees pay contributions from their income, which serve the purpose of financing pensions for today's pensioners from the national budget. Male and female earners are obliged to pay the same social - security contributions in accordance with their status as employed earners or self-employed earners.", "21. At the relevant time, section 32 (1) of the State Pension Insurance Act provided as follows:", "“(1) The pensionable age is", "( a) for men, 60 years,", "( b) for women :", "1. 53 years provided they have raised at least five children,", "2. 54 years provided they have raised three or four children,", "3. 55 years provided they have raised two children,", "4. 56 years provided they have raised one child, or", "5. 57 years,", "if the insured persons had attained that age by 31 December 1995. ”", "Section 32 ( 2 ) provided that for insured persons who reached the above ‑ mentioned age limits between 1 January 1996 and 31 December 2006 the pensionable age was to be gradually raised by two months for men and four months for women for each calendar year, even incomplete, between 31 December 1995 and the date of reaching the above-mentioned age limits.", "Section 32(4) provided at the relevant time:", "“ (4) The requirement for a woman to raise children in order to become entitled to an [earlier] State retirement pension has been satisfied if the woman personally takes care, or has taken care, of children for at least ten years before the children reach the age of majority. However, if a woman starts to raise a child after the child has reached the age of eight years, the requirement of raising children has been met if the woman personally takes care, or has taken care, of the child for at least five years before the child reaches the age of majority; however, the foregoing shall not apply if the woman stopped taking care of the child before the child reached the age of majority.”", "22. According to the Government's submissions, women are called upon to prove that they have raised children for the statutory period by completing a statutory declaration appended to their application for the retirement pension.", "23. Owing to complex demographic changes, the State pensionable age for all persons has thus been gradually rising. Since 200 3 the Government have made efforts to push through two amendments of the State Pension Insurance Act envisaging a gradual equalisation of men's and women's retirement age regardless of the number of children raised. However, owing to difficult political negotiations with certain political parties and trade unions, the only possible solution was to reach a compromise.", "24. As a result, the amended Act no. 155/1995, effective from 1 January 2010, provides in section 32 as follows:", "“(1) The pensionable age is", "( a) for men, 60 years,", "( b) for women :", "1. 53 years provided they have raised at least five children,", "2. 54 years provided they have raised three or four children,", "3. 55 years provided they have raised two children,", "4. 56 years provided they have raised one child, or", "5. 57 years,", "in the case of insured persons born before 1936.", "(2) For insured persons born after 1936 and before 1968 the pensionable age is determined according to the table annexed to this Act, which calculates the increased pensionable ages by adding extra months.", "( 3 ) For insured persons born after 1968 the pensionable age is", "( a) for men, 65 years,", "( b) for women :", "1. 62 years provided they have raised at least four children,", "2. 63 years provided they have raised three children,", "3. 64 years provided they have raised two children, or", "4. 65 years .”", "C. Constitutional Court judgment no. Pl. ÚS 53/2004 of 16 October 2007", "25. By this judgment, the Plenary of the Constitutional Court rejected the Supreme Administrative Court's petition for the repeal of section 32 of the Pension Insurance Act. It held that a particular legal framework which gave an advantage to one group or category of persons compared to another could not in itself be said to violate the principle of equality, and that the legislature had discretion to implement preferential treatment. The approach at stake was based on objective and reasonable grounds and pursued a legitimate aim. The court came to the conclusion that the proposed repeal would be contrary to the principles of legal certainty and minimal restrictions on human rights as women would lose preferential treatment whereas men would not receive the same benefits. Therefore, the solution to the unequal treatment of men and women required a complex and prudent adjustment of the whole pension scheme.", "In its observations to the Constitutional Court the Ministry of Labour and Social Affairs submitted that among the European Union Member States a similar provision was effective for a temporary period only in Slovakia and to a limited extent in Slovenia.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "26. The applicant complained that he was discriminated against in the enjoyment of his property rights on account of his sex. In particular, he alleged that the pension scheme, which established a different pensionable age for women caring for children and for men in the same position, did not pursue any legitimate aim.", "Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 1 provides:", "“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Admissibility", "27. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely with regard to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, amongst many authorities, Şahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles ( see, among other authorities, Gaygusuz v. Austria, § 36, 16 September 1996, Reports of Judgments and Decisions 1996-IV, and E.B. v. France [GC], no. 43546/02, § 47, ECHR 2008 ‑ ... and references therein).", "28. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide (see Stec and Others v. the United Kingdom ( dec .) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X ).", "29. If a Contracting State has legislation in force providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (ibid., § 54 ).", "30. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question. Although Protocol No. 1 does not include the right to receive a social - security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14. ( ibid., § 55).", "31. It follows that the applicant's interests fall within the scope of Article 1 of Protocol No. 1 and of the right to property which it guarantees. This is sufficient to render Article 14 applicable in this case.", "32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "(a) The applicant", "33. As the applicant did not submit his observations within the given time-limit, they have not been included in the case file.", "(b) The Government", "34. The Government admitted that the applicant had been subjected to different treatment from a woman in a similar situation who had raised one or two children. In their view, however, such a difference in treatment had an objective and reasonable justification.", "35. In this connection, the Government pointed out that the Social Security Act (no. 101/1964), which introduced a differentiated pensionable age depending on the number of children women had raised (see paragraph 19 above), reflected the economic and social situation in the then socialist Czechoslovakia. Firstly, the extensive development of the economy necessitated the full involvement of women in the labour process. Secondly, under the Communist regime, women were primarily responsible for the functioning of families and almost entirely responsible for children. In that period, the foundations for the family model ( persisting until the present time) were laid; under that model, women were expected to work on a full ‑ time basis and at the same time to take care of children and the household. As a result of the combination of those two factors, mothers found themselves under an enormous burden. At the same time, the then legislature took into account the biological perspective because the child-raising requirement set forth in the Act implied from the outset not only the care of the child but also pregnancy, childbirth, breastfeeding and so on.", "36. Against this background, the Government admitted that the measure consisting in the lowering of the pensionable age for women according to the number of children raised had not been introduced to protect or reward parents for raising children, but served as a protective measure compensating for the factual inequality in which women in their capacity as mothers found themselves in comparison with men. It thus aimed to rectify the inequalities between the social roles of the two sexes in the family and to redress the imbalance created by maternity, which would always constitute a certain disadvantage for mothers in the labour market. Since those disadvantages stemmed from the biological differences between women and men, the Government submitted that the measure challenged by the applicant appeared to be objectively and reasonably justified for the purposes of Article 14 of the Convention.", "37. Furthermore, the Government submitted that, unlike biological factors, social factors were subject to change. Therefore, the differentiated pensionable age for women depending on the number of children raised would continue to be justified until social conditions changed enough for women to cease to be disadvantaged as a consequence of the existing family model.", "38. Because changes in the organisation of family life were evolving only very slowly in the Czech Republic, the Government believed that, as in the case of Stec and Others v. the United Kingdom ( [GC], no. 65731/01, ECHR 2006 ‑ VI ), it would be difficult to specify the moment from which this unfairness to men ( caused by the lowering of the State pensionable age depending on the number of children raised only in the case of women ) prevailed over the need to remedy the disadvantaged position of women. Also, the Constitutional Court had held in its judgment no. Pl. ÚS 53/2004 that the elimination of inequalities between men and women in the State pension insurance scheme should fully reflect the development of the situation in society.", "39. With regard to the exact timing and method for rectifying the inequality, the Government stated that amendments to Act no. 155/1995, regulating the State pension insurance scheme, had introduced the gradual raising of the existing pensionable ages as one of the key measures of pension reform. Another objective of the subsequent measures was the equalisation of the State pensionable age for men and women, regardless of the number of children raised.", "40. The Government asserted that the current measures were only temporary solutions, part of the long - term fundamental reform of the whole State pension system. Two other approaches would be far more difficult than this method of taking gradual steps. An instant abolition of the lowering of women's State pensionable age in relation to the number of children raised would have been socially insensitive, contrary to the principle of foreseeability of the law and therefore entirely unacceptable both politically and socially. The lowering of the male pensionable age in relation to the number of children raised would lead to a considerable increase in the expenditure of the Czech Social Security Administration and to an unavoidable increase in the caseload of the courts, which would have to devise a very complicated system for checking which of the parents actually took care of children and was therefore eligible for the lowered retirement age. This method would have meant a step back in pension reform overall, which, in fact, envisaged a considerable increase in the State pensionable age for everyone.", "41. So far, the Government had succeeded in pushing through proposals for the gradual equalisation of the State pensionable age for men and women in general. For this purpose the pensionable age for women was currently growing twice as fast as that for men. The upper limit had been set, for the time being, at sixty-five years for men and women.", "42. As early as 2003, the Government had tried to abolish, on a step - by - step basis, the lowering of the women's State pensionable age in relation to the number of children raised, but having regard to the negative opinions of organisations representing both employees and employers (see paragraph 23 above), they had abandoned that intention for the time being in the interest of maintaining lasting social stability. Later, in 2007, they had not succeeded in pushing through a similar proposal to its full extent, so for the time being the lowering of the State pensionable age in relation to the number of children raised had been abolished only for women born after 1968 who had raised one child (see paragraph 24 in fine above ).", "43. The Government also drew attention to further attempts to gradually remove gender-based differentials from the State pension insurance scheme, such as entitlement to bereavement benefits for men and women taking into account care for children, parental leave and parental allowance.", "44. The Government lastly noted that the Court, in the case of Stec and Others ( judgment, cited above), had refused to blame the United Kingdom government for the lengthy process of consultation and review and the national parliament's decision to introduce reform slowly and in stages. The Czech Government believed that the employers'and employees'representatives'negative view of the proposal to abolish the lowering of women's State pensionable age in relation to the number of children raised reflected, inter alia, evidence brought to light by surveys and statistical data, which indicated that, in the Czech Republic, a traditional family model still prevailed.", "45. In the light of the above considerations, the Government concluded that the decisions on the exact timing and method for rectifying the inequality were not so “manifestly unreasonable” as to exceed the wide margin of appreciation enjoyed by States in the formation of their economic and social policies.", "2. The Court's assessment", "(a) General principles", "46. The applicant complained of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14.", "47. The Court's case-law establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). However, not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (see Ünal Tekeli v. Turkey, no. 29865/96, § 49, ECHR 2004-X).", "48. Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Stec and Others, judgment cited above, § 51; and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-XII, with further references). A difference in treatment is, however, discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see Van Raalte v. the Netherlands, 21 February 1997, § 39, Reports 1997-I).", "49. The scope of this margin will vary according to circumstances, subject matter and background (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998-II). In this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States ( see Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87 ). As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see Stec and Others, judgment cited above, § 52, and Willis, cited above, § 39 ). This principle is strengthened by the efforts for advancement of the equality of the sexes which is today a major goal in the member States of the Council of Europe (see Konstantin Markin v. Russia, no. 30078/06, § 47, 7 October 2010 (not final, subject to Article 44 § 2 of the Convention ), and Ünal Tekeli, cited above, § 59 ).", "50. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are, in principle, better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the State's policy choice unless it is “manifestly without reasonable foundation” ( see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII, and Stec and Others, judgment cited above, § 52 ).", "51. Indeed the pension systems constitute cornerstones of modern European welfare systems. They are founded on the principle of long-term contributions and the subsequent entitlement to a pension guaranteed, at least to a certain extent, by the State. Unlike other welfare benefits, every member of society is eligible to draw this benefit after reaching the pensionable age. The inherent features of the system – stability and reliability – allow for lifelong family and career planning. For these reasons the Court considers that any adjustments of the pension schemes must be carried out in a gradual, cautious and measured manner. Any other approach could endanger social peace, foreseeability of the pension system and legal certainty.", "(b) Application of these principles to the present case", "52. Both parties agreed that the application concerned the lowering of the pensionable age for women who took care of children but not for men in the same situation, and not the different pensionable age between men and women born before 1969 in general. The applicant, arguing that he had cared himself for his children born in 1982 and 1985, from at least 1997 until they had reached the age of majority, applied for a retirement pension in 2003, at the age of fifty-seven. His request was dismissed as he had not attained the pensionable age required for men, which could not be lowered according to the number of children raised (see paragraphs 6 and 7 above).", "53. Acknowledging that, in the former Czechoslovakia, the more favourable treatment of women who raised children was originally designed to compensate for the factual inequality and hardship arising out of the combination of the traditional mothering role of women and the social expectation of their involvement in work on a full-time basis, the Court considers that this measure pursued a legitimate aim.", "54. It remains to be examined whether or not the underlying difference in treatment between men and women in the State pension scheme is acceptable under Article 14, that is, whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.", "55. The Court cannot overlook the fact that the measure at stake is rooted in specific historical circumstances. The means employed in 1964 reflected the realities of the then socialist Czechoslovakia, where women were responsible for childcare and the related care of the household while being under pressure to work full time (see paragraph 19 and 35 above). The amount of salaries and pensions awarded to women was also generally lower in comparison with those awarded to men.", "56. Although this family model inevitably shaped recent families, in today's society the child-bearing and child-rearing roles may no longer overlap to such a great extent. Indeed, the efforts by the respondent State to modify the pension scheme, whether successful or not, are intended to react to these and much wider social and demographic developments. Yet it is difficult to pinpoint any particular moment when the unfairness to men begins to outweigh the need to correct the disadvantaged position of women by means of affirmative action. The reluctance of certain political parties and trade unions to support the equalisation of the pension scheme may be indicative in this regard (see paragraph 23 above ). The Court cannot but reiterate that the national authorities are better placed than an international judge to determine such a complex issue relating to economic and social policies, which depends on manifold domestic variables and direct knowledge of the society concerned, and that they have to enjoy a wide margin of appreciation in this sphere.", "57. The Court notes that the Czech Government have already made the first concrete move towards equalisation of the retirement age, since in the amendment of Act no. 155/1995, effective from 1 January 2010, they repealed the lowered pensionable age for women born after 1968 who had raised one child (see paragraph 24 in fine above). As a consequence the pensionable age is the same for women born after 1968 who have raised no children or one child as the pensionable age for men born after 1968. Women who have raised two or more children continue to have their pensionable age lowered. Nonetheless, the pension reform seems to be heading towards an overall increase in the pensionable age, taking no account of the number of children raised by either women or men (see paragraphs 40 - 42 above).", "58. The Court acknowledges that owing to the difficult political negotiations, the resulting change in the Czech pension scheme is limited. However, the demographic shifts and changes in perceptions of the roles of the sexes are by their nature gradual and, after forty-five years of the existence of the measure at stake, it is necessary to time the amendment accordingly. Therefore, the State cannot be criticised for progressively modifying its pension system to reflect these gradual changes (see also paragraph 51 above) and for not having pushed for complete equalisation at a faster pace. Indeed, the respondent Government have to choose from among different methods of equalising the retirement age. This task is even more demanding and deserves well-thought -out solutions since the State has to place this reform in the wider context of other demographic shifts, such as the ageing of the population or migration, which also warrant adjustment of the welfare system, while preserving the foreseeability of this system for the persons concerned who are obliged to contribute to it.", "59. The present case must therefore be distinguished from the issue of discrimination in the field of parental leave (see Konstantin Markin, cited above, not final ). In the Konstantin Markin case the Court held that the traditional perception of women as primary child-carers could not provide sufficient justification for the exclusion of the father from the entitlement to take parental leave from now on and for the future (ibid., § 49) and found a violation of Article 14 in conjunction with Article 8. However, unlike the pension scheme, parental leave is a short-term measure which does not affect the entire lives of members of society. It is related to today's life of those concerned whereas the pension age reflects and compensates for inequalities of former times. In the Court's opinion, the amendments of the parental leave system referred to in the case of Konstantin Markin do not involve changes to the subtle balance of the pension system, do not have serious financial ramifications and do not alter long-term planning, as might be the case with the pension system, which forms a part of national economic and social strategies.", "60. To conclude, the Court finds that the original aim of the differentiated pensionable ages based on the number of children women raised was to compensate for the factual inequality between men and women. In the light of the specific circumstances of the case, this approach continues to be reasonably and objectively justified on this ground until social and economic changes remove the need for special treatment for women. In view of the time-demanding pension reform which is still ongoing in the Czech Republic, the Court is not convinced that the timing and the extent of the measures undertaken by the Czech authorities to rectify the inequality in question have been so manifestly unreasonable as to exceed the wide margin of appreciation allowed in such a field ( see Stec and Others, judgment cited above, § 6 6 ).", "61. In these circumstances the Court finds that the Czech Republic cannot be criticised for having failed to ensure, in the present case, a reasonable relationship of proportionality between the impugned difference in treatment and the legitimate aim pursued.", "There has therefore been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1939 and lives in Vienna.", "9. At the time of the events the applicant was a civil servant in the administration of the Vienna Municipality. On 21 June 1988 the applicant ’ s wife, who was also a civil servant in the administration of the Vienna Municipality, died. During her working life she had paid contributions to the pension scheme established under the Pension Act ( Pensionsordnung ) and the Pension Allowance Act ( Ruhe - und Versorgungsgenuβzulagen - gesetz ).", "10. By decision of 22 August 1988 the Vienna Municipality ( Stadtwerke ) granted the applicant a survivor ’ s pension ( Versorgungsgeld - und Versorgungsgeldzulage ) under the relevant provisions of the Pension Act of 1966, and the Pension Allowance Act. Section 15 of the Pension Act in force at the relevant time provided for a survivor ’ s pension in the amount of 60 % of the retirement pension of the applicant ’ s late wife. Hereto was added a proportionate supplementary allowance under Section 6 of the Pension Allowance Act.", "11. According to the transitory provision contained in Article II of the Pension Act the monthly payments to which the applicant was entitled amounted to one-third of the survivor ’ s pension from 1 July 1988, two-thirds of the survivor ’ s pension from 1 January 1989 and the full survivor ’ s pension from 1 January 1995.", "12. On 1 January 1995 the fourteenth amendment of the Pension Act of 1966 came into force and Article II became invalid with effect from that day.", "13. According to Section 15 of the amended Pension Act the survivor ’ s pension amounted to between 40 and 60% of the retirement pension of the deceased civil servant, the concrete percentage to be calculated on the basis of the retirement pensions of both spouses.", "14. According to Section 64e of the Amended Pension Act, former Section 15 was still applicable to entitlements to a widow ’ s pension or a pension of a widower who was incapable of gainful employment and indigent, which had been acquired prior to 1 January 1995.", "15. On 2 January 1995 the Vienna Municipality reduced the amount of the applicant ’ s survivor ’ s pension to 40% of his late wife ’ s retirement pension.", "16. On 16 January 1995 the applicant appealed against this decision.", "He submitted that, had he been a woman in a similar position, former Section 15 of the Pension Act would have applied to him and he would have been entitled to a survivor ’ s pension in the amount of 60% of his late wife ’ s retirement pension instead of the 40% which he received now under the amended Pension Act and the Pension Allowance Act. This violated his constitutional right to equal treatment.", "17. On 16 May 1995 the Appeals Board of the Vienna Municipality ( Berufungssenat ) dismissed the appeal.", "18. On 13 July 1997 the applicant filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ).", "19. On 8 October 1997 the Constitutional Court declined to deal with the applicant ’ s complaint for lack of prospects of success.", "20. On 19 December 2001 the Administrative Court ( Verwaltungs-gerichtshof ) to which the case had been transferred upon the applicant ’ s request, dismissed the applicant ’ s complaint.", "21. It referred, inter alia, to case-law of the Constitutional Court concerning similar provisions of the Pension Act 1965. The Constitutional Court had found that in the light of continuing change in attitudes towards the equality of sexes, an exclusion of a widower from survivor ’ s payments would, as a rule, constitute a violation of the principle of equal treatment.", "22. There was, however, no constitutional concern about provisions which, in the course of an adjustment process, provided for equal rights of widows and widowers to a survivor ’ s pension as of a certain date, but maintained differences as regards the entitlement to survivor ’ s pensions acquired prior to that date. This decision was served on the applicant ’ s counsel on 25 January 2002." ]

[ "II. RELEVANT DOMESTIC LAW", "23. In its 1986 version the relevant provisions of the Vienna Pension Act ( Pensionsordnung für Wien, LGBl Nr. 34/1986 ) read as follows:", "Section 14 (1)", "\"The surviving spouse of a civil servant is entitled to a monthly pension if the civil servant himself had such a claim on the day of his death, or if he would have had such a claim upon retirement on that day.\"", "Section 15(1)", "“ A survivor ’ s pension shall amount to 60 % of the civil servant ’ s retirement pension......”", "Article II (2)", "\"The monthly instalments to which the widower or the former husband are entitled, are - from 1 August 1986 onwards the amount of one third; - from 1 January 1989 onwards the amount of two thirds; - and from 1 January 1995 onwards the full amount. If the widower or former husband is incapable of gainful employment and indigent, this restriction does not apply.\"", "24. On 1 January 1995, when the fourteenth amendment to the Pension Act came into force, the relevant provisions of this Act were amended as follows:", "Section 15", "“1. A survivor ’ s pension shall amount to a certain percentage of the civil servant ’ s retirement pension ...", "3. ...the percentage shall lie between 40 and 60 ...”", "Section 64e (1)", "“Provided the entitlement [to a survivor ’ s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable", "- to the survivor ’ s pension of a widow...", "- to the survivor ’ s pension of a widower, if he is incapable of gainful employment and indigent.....”", "25. The Pension Act has meanwhile repeatedly been amended. Current Section 72 § 1 reads:", "“Provided the entitlement [to a survivor ’ s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable", "- to the survivor ’ s pension of a widow...", "- to the survivor ’ s pension of a widower, if he is incapable of gainful employment and indigent.....”", "26. Section 6 of the Pension Allowance Act ( Ruhe - und Versorgungs - genuβzulagengesetz ) grants a survivor entitled to a survivor ’ s pension [under the Pension Act] a supplementary pension allowance amounting to a certain percentage of the civil servant ’ s retirement supplementary allowance. The percentage corresponds to the percentage relied on when calculating the survivor ’ s pension under the Pension Act.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "27. The applicant complained under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention that the reduction of his survivor ’ s pension under the amended Pension Act was discriminatory and violated his right to property.", "Article 1 of Protocol 1 reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "28. In its admissibility decision of 30 June 2005 the Court held that the amendment of the Pension Act leading to the reduction of the applicant ’ s entitlement to 40 % of his late wife ’ s retirement pension, affected the applicant ’ s property interests protected in Article 1 of Protocol No. 1. Accordingly, Article 14 is also applicable. The Court will now consider whether there has been a breach of Article 14 taken in conjunction with Article 1 of Protocol No. 1.", "29. The Government argued that the re-assessment of the widower ’ s pension of the applicant was reasonable and justified as it served the legitimate aim of preventing excessive benefits.", "30. The fourteenth amendment of the Pension Act provided for equal rights of widows and widowers to a survivor ’ s pension as from 1 January 1995. The differences between widows and widowers as regards the entitlement to a survivor ’ s pension acquired prior to that date were in line with the gradual adjustment process between widows ’ and widowers ’ pensions. Widows and widowers who were incapable of gainful employment and indigent already received a survivor ’ s pension in the amount of 60 % of their late spouse ’ s retirement pension before 1 January 1995, so that a new assessment of their pensions would have interfered with their acquired pension rights and violate their confidence.", "31. The applicant submitted that the discrimination of widows and widowers under the amended Pension Act in fact prolongates the discrimination of widows and widowers in respect of entitlement to a survivor ’ s pension before 1 January 1995. He maintained that there is no reason why excessive benefits should only be prevented when paying survivor pensions to widowers but not also to widows who had acquired a survivor ’ s pension before 1 January 1995. He submitted that his position as a widower was just as well worth protecting than those of widows.", "32. The Court recalls that Article 14 does not prohibit a Member State from treating groups differently in order to correct “ factual inequalities ” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article (see “ Case relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, § 10 and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, § 39).", "33. The scope of this margin will vary according to the circumstances, the subject-matter and the background (see Petrovic v. Austria, judgment of 27 March 1998, Reports 1998-II, § 38). As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention (see Van Raalte, cited above, § 39, and Schuler- Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, § 67). On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 46; National and Provincial Building Society and Others v. the United Kingdom, judgment of 23 October 1997, Reports 1997-VII, § 80). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( ibid. ).", "34. Finally, since the applicant complains about inequalities in a welfare system, the Court underlines that Article 1 of Protocol No. 1 does not include a right to acquire property. It places no restriction on the Contracting State ’ s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amounts of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see Stec and Others v. the United Kingdom [GC], no. 65731/01, § 53, 12 April 2006 ).", "35. In the instant case, the amended Pension Act provided for a new assessment of survivor ’ s pensions. The more favourable provisions of the former Pension Act were still applicable to widows who had acquired entitlement before 1 January 1995, whereas they were only applicable to widowers who had acquired entitlement before 1 January 1995 and provided they were incapable of gainful employment and indigent. This constitutes a “difference in treatment” between persons in a similar situation, based on gender. It remains to be determined whether there was a reasonable and objective justification for this different treatment.", "36. The Government referred in this regard to the gradual adjustment process between widows ’ and widowers ’ pensions which was found to be in conformity with the Austrian constitutional law by the Constitutional Court. As from 1 January 1995 widows and widowers were treated equally. Against this background, the Constitutional Court had no concerns that the legislation maintained different survivor ’ s payments when entitlement had been acquired prior to that date. Widows and widowers who were incapable of gainful employment and indigent, already received a full survivor ’ s pension in the amount of 60 % of their late spouse ’ s retirement pension before 1 January 1995, so that a new assessment of their pensions would have interfered with their existing pension rights.", "37. The Court notes that this argumentation may be summarised to the statement that the impugned inequality between widows and widowers was linked to their prior differential legal situation which, in itself, was objectively justified.", "38. The Court observes that it was recently called upon to decide whether differences in a system of earning-related benefits arising from the link to differential pension ages of women and men were discriminatory contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol no. 1 of the Convention (see Stec and Others v. United Kingdom, cited above). In this case the Court found no violation of the Convention as it considered that the respondent State ’ s decisions as to the precise timing and means of putting right the inequality in pension age did not exceed the wide margin of appreciation allowed in such a field and the link of eligibility for the benefits to the pension system was consistent with the purpose of the benefits.", "39. The Court considers that in the present case the gradual adjustment of existing differences in the payment of survivor ’ s pensions may be acceptable under the Convention for reasons similar to those given in the Stec case. However, unlike in the Stec case, the reform towards equality between women and men in the present case was already effectively under way and the final target of equal treatment should have been reached on 1 January 1995. At this date, the applicant would have reached entitlement to a full survivor ’ s pension in the amount of 60 % of his late wife ’ s retirement pension.", "40. The Court finds that very strong reasons have to be put forward in order to explain the amendment in the relevant legislation in December 1994 which introduced further differentiation and thereby frustrated the planned equalisation for part of the widowers, including the applicant, at the very last moment. However, the Government have not forwarded any convincing reason why, contrary to the prior assessment expressed in the Vienna Pension Act of 1986 that equal treatment of widows and widowers should be reached by 1 January 1995, a more favourable treatment of widows suddenly appeared to be justified again. Their argument that a new assessment of the pension of those persons who already received the full amount of survivor ’ s pension before 1 January 1995 would have interfered with their existing rights, might equally well apply to persons who, until amendment of the Pension Act in December 1994, were entitled to and trusted to receive the full amount of a survivor ’ s pension as from 1 January 1995. The Court accordingly considers that the subsequent difference in treatment between men and women as regards entitlement to survivor ’ s pensions acquired prior to 1995 was not based on any “objective and reasonable justification”.", "41. In conclusion, the Court finds that there has, therefore, been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in this case.", "42. The above finding further renders it unnecessary for the Court to consider separately the applicant ’ s complaint under Article 1 of Protocol No. 1 taken alone.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "43. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "44. In respect of pecuniary damage the applicant claimed 60,552.01 EUR as compensation for the part of his survivor ’ s pension he lost due to the impugned reduction until August 2005, when he filed his just satisfaction claims, including 4 % interest rate. He further requested that the Court take also account of the respective amounts from August 2005 until the Court ’ s judgment. The applicant calculated his claims on the basis of gross survivor ’ s payments as he submitted that it was the duty of the Republic of Austria to assess and deduct taxes and social contributions from these payments.", "45. In respect of costs and expenses, the applicant claimed 3,533.03 EUR in respect of the costs of the domestic proceedings and 7,531.86 EUR in respect of the costs of the proceedings before the Court. Both sums include VAT.", "46. The Government pointed out that there must by a causal link between the violation found and the presumed damage. Moreover, it is not for the Court to speculate what the outcome of the proceedings would have been, had the authorities or courts acted in conformity with the requirements of the Convention. The Pension Act as in force before 31 December 1994 raised expectations among male survivors that they would be entitled as of 1 January 1995 to a widower ’ s pension in the full amount, however, the applicant was never actually entitled to the full amount.", "47. As regards the costs claim, they asserted that the sum claimed for representation in the proceedings before the Vienna Municipality, namely 608.23 EUR, was not necessarily incurred since there was no obligation to be represented by counsel. The sum claimed for proceedings before the Court was excessive.", "48. The Court considers the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicant (Rule 75 § 1 of the Rules of Court)." ]

[ "6. The applicant married in July 1994. The applicant and his wife had two children, born in 1989 and 1992. The applicant’s wife died of cancer on 11 August 1997, aged 28 years. The applicant is the administrator of his late wife’s estate.", "7. The applicant’s wife was employed as a shop assistant for four years and contributed about half of their joint income. She paid full social security contributions as an employed earner, except when she gave up work to care for their children and was subsequently entitled to contribution credits as a person who was incapable of work. The applicant gave up work to nurse his wife and care for their children in January 1997.", "8. On 8 September 1997 the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of Mrs Sawden, would have been entitled, namely a Widow’s Payment and a Widowed Mother’s Allowance, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”).", "9. By a letter dated 24 September 1997, the Benefits Agency informed the applicant that he was not entitled to any of the money he had claimed. The applicant lodged an unsuccessful appeal against this decision on 2 October 1997.", "10. The applicant wished to increase his income and continue to care for his children by working part time. However, under Income Support Rules any earnings over GBP 15 per week would be deducted from his benefit. His family’s standard of living was thus effectively fixed at a low level until circumstances changed to allow him to return to full time work. If the applicant had been entitled to receive social security benefits equivalent to those to which a woman in similar circumstance to himself would have been entitled, he could have worked part time and would have received benefits of around GBP 85 per week. He would also have received a one off Widow’s Payment of GBP 1,000.", "11. Under the Welfare Reform and Pensions Act 1999 bereavement benefits became available to both men and women as of 9 April 2001." ]

[ "THE LAW", "12. On 4 September 2001 the Court received the following declaration from the Government:", "“I declare that the Government of the United Kingdom offer to pay GBP 1,000 to Mr Dean Edward Sawden with a view to securing a friendly settlement of the application registered under no. 38550/97. This sum shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the judgment by the Court pursuant to the Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case.", "The Government further undertake not to request the reference of the case to the Grand Chamber under Article 43 § 1 of the Convention.”", "13. On 14 September 2001 the Court received from the applicant’s representative the following declaration signed by him:", "“I note that the Government of the United Kingdom are prepared to pay me a sum totalling GBP 1,000 covering both pecuniary and non-pecuniary damage and costs with a view to securing a friendly settlement of application no. 38550/97 pending before the Court.", "I accept the proposal and waive any further claims in respect of the United Kingdom relating to the facts of this application. I declare that the case is definitely settled.", "This declaration is made in the context of a friendly settlement which the Government and the applicant have reached.", "I further undertake not to request the reference of the case to the Grand Chamber under Article 43 § 1 of the Convention after the delivery of the Court’s judgment.”", "14. The Court takes note of the agreement reached between the parties (Article 39 of the Convention) and the amended legislation (paragraph 11 above). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).", "15. Accordingly, the case should be struck out of the list." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant is a British national born in 1956 and living in Bristol.", "8. In December 1984 the applicant married Marlene Willis. They had two children: Natasha Uma, born on 24 March 1989, and Ross Amal, born on 2 August 1990. Mrs Willis died of cancer on 7 June 1996, at the age of 39. The applicant is the administrator of his late wife's estate.", "9. Mrs Willis had been employed as a local authority housing officer. For the greater part of her married life, she was the primary breadwinner. She had paid full social-security contributions as an employed earner until 1994, and was subsequently entitled to contribution credits as a person unfit for work. On 3 November 1995 the applicant gave up work to nurse his wife and care for their children. Following his wife's death, he worked part time between 2 September 1996 and 6 November 1996, for an annual salary of 4,393 pounds sterling (GBP), but since this proved uneconomic he stopped working to care full time for the children.", "10. On 4 November 1996 the applicant applied to the Benefits Agency for the payment of social-security benefits. He applied for benefits equivalent to those which a widow whose husband had died in similar circumstances to those of Mrs Willis would have been entitled, namely a widow's payment and a widowed mother's allowance, payable under the Social Security and Benefits Act 1992.", "11. By a letter dated 18 November 1996, the Benefits Agency informed the applicant that the benefits he had claimed did not exist for widowers, and that his claim accordingly could not be accepted as valid. The letter continued:", "“I am afraid I can only explain that the Government says that it has no plans to introduce a widowers' pension on the same line as the existing widows' benefits.", "It may help if I explain the current policy underlying widows' benefits was established at a time when married women rarely worked. It is based on the assumption that women are more likely than men to have been financially dependent on their spouse's earnings and therefore more likely on widowhood to face greater financial hardship. The benefits themselves are concentrated on those widows who are perceived to have the greatest problems, those with children and older women who may have been out of the labour market for many years.", "It is accepted that social patterns have changed considerably since the provisions were first introduced. However, it is still broadly the case that on bereavement, women are more likely than men to be in financial need. For instance, most widowers of working age will have been in employment before the death of their wives. They will not therefore have the same degree of difficulty in supporting themselves as widows who may have been out of the labour market for some time and may find it difficult to obtain paid work. Women on average earn less than men. So even for women who have been working, the financial loss on widowhood is likely to be significantly more than for men.", "Widows' benefits are not means tested and are paid regardless of the level of the widows' earnings. The Government says that the extension of the benefits on the same basis to widowers would mean substantial extra expenditure in paying maintenance benefit to men who are likely to be already maintaining themselves by their earnings, and in some cases, very high earnings indeed. To make existing widows' benefits provisions available to widowers would add an estimated GBP 490 million to the annual Social Security budget. The Government is of the opinion that at a time when all areas of public expenditure are having to be carefully considered, this is simply not a best use of scarce resources.", "In making these points, the Government says that it is in no way minimising the sad problems faced by widowers, in particular those left with small children to care for. For them there are already available benefits such as Child Benefit and One Parent Benefit, together with the range of income-related benefits, for example, Income Support for those not in full time work and Family Credit for low paid workers. In the Government's view this remains the fairest way of providing benefits to meet specific need rather than an extension of widows' benefits along the lines suggested. ...”", "12. The applicant lodged a statutory appeal against this decision on 17 February 1997. The Social Security Appeal Tribunal declined jurisdiction on the basis that no appealable decision had been made.", "13. The applicant currently receives child benefit and, in respect of his son Ross, received a disability living allowance and an invalid care allowance for a period following his wife's death. He is also in receipt of a widower's pension under Mrs Willis's occupational pension scheme. The applicant has capital, much of which is derived from a joint endowment policy (for which he and Mrs Willis had paid premiums) which matured on Mrs Willis's death, from which he obtains a further income of about GBP 150 per month. Because of his savings, the applicant does not qualify for means-tested benefits such as income support or family credit. All the social-security benefits he receives would also be received by a widow, who would in addition be paid a widow's payment and a widowed mother's allowance." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "14. Under United Kingdom law, certain social-security benefits, including widow's payment, widowed mother's allowance and widow's pension, are paid for out of the National Insurance Fund. By section 1 of the Social Security and Benefits Act 1992 (“the 1992 Act”), the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament.", "15. Male and female earners are obliged to pay the same social-security contributions in accordance with their status as employed earners or self-employed earners.", "Widow's payment", "16. Under section 36 of the 1992 Act, a woman who has been widowed is entitled to a widow's payment (a lump sum payment of GBP 1,000) if:", "(i) she is under pensionable age at the time when her husband died, or he was not then entitled to a Category A retirement pension; and", "(ii) her husband satisfied certain specified social-security contribution conditions set out in a schedule to the 1992 Act.", "Widowed mother's allowance", "17. Under the relevant part of section 37 of the 1992 Act, a woman who has been widowed (and who has not remarried) is entitled to a mother's allowance on certain conditions, the following being the conditions relevant to the circumstance of the present case:", "(i) her husband satisfied the contribution conditions set out in a schedule to the Act; and", "(ii) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband.", "The widowed mother's allowance currently amounts to GBP 72.50 per week, with an extra GBP 9.70 per week in respect of the eldest eligible child, and a further GBP 11.35 per week in respect of other children.", "Widow's pension", "18. Under section 38 of the 1992 Act, a woman who has been widowed (and who is not remarried) is entitled to a widow's pension if her husband satisfied the contribution conditions set out in a schedule to the Act; and", "(i) at the date of her husband's death she was over the age of 45 but under the age of 65; or", "(ii) she ceased to be entitled to a widowed mother's allowance at the time she was over the age of 45 but under the age of 65.", "If the applicant were a woman, he could look forward to entitlement to a widow's pension at some stage between 2006 and 2009, depending on when his youngest child ceased to be a dependant, at which time he would no longer be entitled to the widowed mother's allowance.", "Time-limit for applications for benefits", "19. Section 1(1) of the 1992 Act, which applies to the applicant, provides that no entitlement to a benefit arises unless a claim for the benefit is made in the prescribed manner and within the prescribed time.", "At the relevant time, the time-limits for claiming a widow's payment and a widowed mother's allowance were set out in the Social Security (Claims and Payments) Regulations 1987 (Statutory Instrument 1987/1968), Regulation 19 of which provided:", "“(6) The prescribed time for claiming benefits not specified in column (1) of Schedule 4 shall be –", "...", "(b) twelve months in the case of ... widow's benefit ...", "(7) The periods of six and twelve months prescribed by paragraph (6) are calculated from any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.”", "In addition, section 1(2) of the Social Security Administration Act 1992 provides, in relation to claims for a widow's payment:", "“Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it –", "(a) if the benefit is a widow's payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made or treated as made ... ”", "The Welfare Reform and Pensions Act 1999", "20. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) introduces two new social-security benefits, the widowed parent's allowance and the bereavement allowance. The widowed parent's allowance replaces the widowed mother's allowance. The bereavement allowance replaces the widow's pension. Both are payable to men and women who meet the relevant qualifying conditions. The 1999 Act also introduces a new social-security payment, called a bereavement payment, payable both to men and women in place of the widow's payment.", "21. The relevant parts of the Act came into force on 9 April 2001 and allow any man whose wife dies before, on or after that date, or any woman whose husband dies on or after that date, to apply for the widowed parent's allowance. It also allows any man whose wife dies on or after that date to apply for the bereavement payment or the bereavement allowance in exactly the same way as a woman whose husband dies on or after that date.", "22. The transitional provisions of the 1999 Act preserve the entitlements of women under the 1992 Act whose husbands died before 9 April 2001. Such women thus continue to be entitled to the widow's payment, the widowed mother's allowance and the widow's pension where the relevant qualifying conditions are met.", "Thomas John Hooper and Others v. Secretary of State for the Department of Work and Pensions ([2002] High Court, Administrative Court ( England and Wales ) 191)", "23. On 14 February 2002 Mr Justice Moses delivered judgment in the High Court in a case brought by four claimants, all of whom were widowers claiming, inter alia, that their ineligibility for widows' benefits under the 1992 Act was discriminatory contrary to Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1. Three of the claimants had been left with dependent children, with the result that the benefits at issue in their cases were the widow's payment and the widowed mother's allowance. The fourth claimant (Mr Naylor) had been left without dependent children, with the result that the benefits at issue in his case were the widow's payment and the widow's pension.", "24. The defendant government department conceded before the High Court that there had been discrimination under Article 14 of the Convention taken in conjunction with Article 8 in relation to non-payment of the widowed mother's allowance. As regards the question of whether the claimants' complaints, in so far as they related to the widow's payment and the widow's pension, fell within the ambit of Article 8, Mr Justice Moses commented as follows:", "“In my view, the availability of pecuniary support afforded by Widow's Payment and Widow's Pension does have a significant effect on the relationship of a family prior to the death of the spouse. They form a significant part of a family's plans for a secure future. ...", "Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse. ...", "Moreover, Widow's Payments and Widow's Pensions form part of a congeries of provisions, all of which are designed to provide support to a surviving spouse at different stages of her life. Widow's Payments ... are one-off payments made immediately on bereavement. Widowed Mother's Allowances are paid whilst she looks after dependent children and Widow's Pension payable in the longer term between the ages of 45-65 when she has finished bringing up her children. Viewed as part of a package, the payments and pensions payable to a widow are bound to be of concern to the family before the death of the husband.", "Accordingly, for those reasons I conclude that the failure to make Widow's Payment and Widow's Pension available to a surviving widower falls within the ambit of Article 8(1). Thus Article 14 is itself engaged.”", "25. In dismissing the claimants' arguments that the same complaints fell also within the ambit of Article 1 of Protocol No. 1, Mr Justice Moses commented:", "“... In order to establish that the benefits in issue are their possessions, the claimants must establish a pecuniary right based upon their contributions. Absent such contributions, they have no possession within the meaning of Article 1 of the First Protocol. There is no hint, in any of the cases that the [ Strasbourg ] Court intended to depart from the fundamental principle that to come within the ambit of Article 1 of the First Protocol, a property right must be established. ...", "... A deceased widow's entitlement to benefits depends upon the contributions of the deceased husband. ... A widower has no entitlement under domestic legislation arising from the contributions of his deceased spouse. He thus has no entitlement and consequently no possession within the meaning of Article 1 of the First Protocol.”", "26. Prior to his examination of whether there was objective justification for non-payment of the widow's pension to widowers, Mr Justice Moses observed:", "“Only Mr Naylor's case raises the issue of Widow's Pension. Although other claimants, in their written argument, raised the issue of future entitlement to Widow's Pension, such a claim is hypothetical, since they are too young to claim it now and may never become entitled should they re-marry, ... or should they co-habit ...”", "Mr Justice Moses concluded that there was objective justification for the difference in treatment between widows and widowers as regards entitlement to a widow's pension under the 1992 Act.", "COMPLAINTS", "27. The applicant complained that the United Kingdom authorities' refusal to pay him the social-security benefits to which he would have been entitled had he been a woman in a similar position, namely a widowed mother's allowance and a widow's payment, constituted discrimination against him and his wife on grounds of sex contrary to Article 14 of the Convention taken in conjunction with each of Article 8 of the Convention and Article 1 of Protocol No. 1. He made an identical complaint as regards his future non-entitlement to a widow's pension. He complained also of a violation of Article 13 of the Convention.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "28. The applicant complained that the United Kingdom authorities' refusal to pay him the social-security benefits to which he would have been entitled had he been a woman in a similar position, namely a widowed mother's allowance and a widow's payment, constituted discrimination against him and his wife on grounds of sex contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. He made an identical complaint as regards his future non-entitlement to a widow's pension.", "Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 1 provides:", "“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Widow's payment and widowed mother's allowance", "1. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "29. The Court notes that, according to its established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among other authorities, Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 1 996-IV, p. 1141, § 36).", "30. The applicant argued that the widow's payment and the widowed mother's allowance come within the ambit of Article 1 of Protocol No. 1 because they are both pecuniary rights payable on the satisfaction of the legislative conditions. He highlighted the fact that the right to receive the benefits in question is conditional upon the payment of contributions to the National Insurance Fund. As the contributions were clearly within the ambit of Article 1 of Protocol No. 1, so must be the ensuing benefits.", "31. The Government did not make any submissions on the applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in relation to these aspects of the complaint, other than to argue that the conclusions reached by Mr Justice Moses in the High Court in Hooper (see paragraph 25 above) were correct.", "32. The Court notes that in Gaygusuz (cited above, pp. 1141-42, §§ 39-41) it considered that the right to emergency assistance, entitlement to which was linked to the payment of contributions to the unemployment insurance fund, constituted a pecuniary right for the purposes of Article 1 of Protocol No. 1. Similarly, the Commission has previously assimilated the right to social-security benefits to a property right within the meaning of that Article where a person has made contributions to a social-security system from which he will later derive the benefits concerned (see, for example, Müller v. Austria, no. 5849/72, Commission's report of 1 October 1975, Decisions and Reports (DR) 3, p. 25, and G. v. Austria, no. 10094/82, Commission decision of 14 May 1984, DR 38, p. 84).", "33. The Court notes that at the material time the widow's payment and the widowed mother's allowance were paid to women who had been widowed and who satisfied the various statutory conditions laid down in the 1992 Act (see paragraphs 16 and 17 above). Both these social-security benefits were paid out of the National Insurance Fund, into which male and female earners were obliged to pay contributions in accordance with their status as employed or self-employed earners.", "34. In the instant case, it has not been argued that the applicant did not satisfy the various statutory conditions for payment of a widow's payment and a widowed mother's allowance. The refusal to recognise the applicant as being entitled to those benefits was based exclusively on his male sex. A female in the same position as the applicant would have had a right, enforceable under domestic law, to receive a widow's payment and a widowed mother's allowance.", "35. The Court does not consider it significant that the statutory condition requiring payment of contributions into the National Insurance Fund required the contributions to have been made, not by the applicant, but by his late wife. It is not therefore necessary for the Court to address in this case the question of whether a social-security benefit must be contributory in nature in order for it to constitute a “possession” for the purposes of Article 1 of Protocol No. 1.", "36. The Court therefore considers that the right to a widow's payment and a widowed mother's allowance – in so far as provided for in the applicable legislation – is a sufficiently pecuniary right to fall within the ambit of Article 1 of Protocol No. 1.", "The Court considers further that, as the applicant was denied the right to a widow's payment and a widowed mother's allowance on the ground of a distinction covered by Article 14 of the Convention, namely sex, that provision must also be applicable to this aspect of his complaint (see, among other authorities, Gaygusuz, cited above, p. 1142, § 41).", "2. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1", "37. The applicant argued that the difference in treatment between men and women as regards entitlement to a widow's payment and a widowed mother's allowance was not based on any objective and reasonable justification. In particular, it was based upon gender-stereotyping and broad generalisations which were no longer an accurate reflection of social conditions in the United Kingdom. The fact that widows' benefits were not means-tested meant that high-earning women in a position similar to that of the applicant would benefit, while the applicant and other men would be denied such benefits regardless of their need. The fact that resources were finite did not justify concentrating all the resources which were available on the protection of bereaved women to the detriment of widowed men. Indeed, the applicant highlighted the fact that working women in his wife's position were required to pay the same proportion of their earnings to the National Insurance Fund as men, notwithstanding the more limited benefits offered to their surviving relatives in the event of their death. He pointed out the less discriminatory approaches taken by the majority of the other member States of the Council of Europe in the context of survivors' benefits.", "38. The Government did not make any submissions on the compliance with Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1, of the decision to refuse the applicant the widow's payment and the widowed mother's allowance.", "39. According to the Court's case-law, a difference of treatment is discriminatory for the purposes of Article 14 of the Convention if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention (see, among other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, p. 186, § 39).", "40. The Court notes that the applicant's wife worked throughout the best part of her marriage to the applicant and during that time paid full social-security contributions as an employed earner in exactly the same way as a man in her position would have done. It notes also that the applicant gave up work to nurse his wife and care for their children on 3 November 1995 and that, being a relatively low earner, it proved uneconomic for him to return to work on a part-time basis following his wife's death. Despite all this, the applicant was entitled to significantly fewer financial benefits upon his wife's death than he would have been if he were a woman and she had been a man.", "41. The Court observes also that the authorities' refusal to grant the applicant a widow's payment and a widowed mother's allowance was based exclusively on the fact that he was a man. It has not been argued that the applicant failed to satisfy any of the other statutory conditions for the award of those benefits and he was accordingly in a like situation to women as regards his entitlement to them.", "42. The Court considers that the difference in treatment between men and women as regards entitlement to the widow's payment and widowed mother's allowance, of which the applicant was a victim, was not based on any “objective and reasonable justification”.", "43. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "B. Widow's pension", "44. The applicant stated that he faced a very significant risk that he would, within the next few years, be deprived on the grounds of his sex of a widow's pension to which he would otherwise have been entitled. He argued that he was already suffering detriment due to his being deprived of the possibility of ever applying for a widow's pension.", "45. The applicant maintained that a widow's pension constituted a “possession” for the purposes of Article 1 of Protocol No. 1. He pointed to the fact that it was a pecuniary social benefit, entitlement to which was linked to the satisfaction of statutory conditions, including the payment of national insurance contributions. He submitted that the conditions applying to eligibility to a widow's pension were discriminatory against him and that his case was thus indistinguishable from Gaygusuz (cited above).", "46. The Government pointed out that a widow in the applicant's position would not be entitled to a widow's pension until at least 2006, and possibly not until 2009, which is the latest date on which the applicant's youngest child will cease to be regarded as being dependent. They stated that a woman in the applicant's position might never qualify for a widow's pension because she might not, at the time of her future claim, meet the relevant statutory criteria. The Government thus considered this aspect of the complaint hypothetical and speculative.", "47. The Government argued that, in any event, a widow's pension did not fall within the scope of Article 1 of Protocol No. 1 since it did not constitute a “possession” for the purposes of that Article. They highlighted the fact that entitlement to a widow's pension was dependent on the national insurance contributions of the deceased spouse of the claimant. They indicated that Article 1 of Protocol No. 1 did not entitle a person to any particular benefit of any particular amount, nor did it entitle a person to payment of a social-security benefit unless that person had satisfied the conditions laid down by domestic law. They drew support for their submissions from the judgment of the High Court in Hooper (see paragraph 25 above).", "48. The Court reiterates that Article 14 of the Convention affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see, for example, Fredin v. Sweden (no. 1), judgment of 18 February 1991, Series A no. 192, p. 19, § 60).", "49. In the present case, even if the applicant were a woman and the discrimination of which he complains was thus removed, he would not currently qualify for a widow's pension under the conditions set out in the 1992 Act. Indeed, a widow in the applicant's position would not qualify for the pension until at least 2006 and might never so qualify due to the effect of other statutory conditions requiring, for example, that a claimant does not re-marry before the date on which her entitlement would otherwise crystallise. Three of the four claimants in Hooper (cited above) were in an equivalent position to the applicant in this respect, leading Mr Justice Moses to comment that their claims to the pension were “hypothetical” (see paragraph 26 above).", "50. The Court thus concludes that, since the applicant has not been treated differently from a woman in an analogous situation, no issue of discrimination contrary to Article 14 of the Convention arises as regards entitlement to a widow's pension on the facts of this case.", "It follows that it is unnecessary for the Court to consider whether the applicant's complaints in this context fall within the scope of Article 1 of Protocol No. 1.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "51. The applicant also complained that the United Kingdom authorities' refusal to pay him the widow's payment and widowed mother's allowance to which he would have been entitled had he been a woman in a similar position constituted discrimination on grounds of sex contrary to Article 14 of the Convention taken in conjunction with Article 8. He made an identical complaint as regards his future non-entitlement to a widow's pension.", "52. The relevant part of Article 8 of the Convention provides:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ...”", "A. Widowed mother's allowance and widow's payment", "53. The Court, having concluded that there has been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 as regards the applicant's non-entitlement to the widowed mother's allowance and the widow's payment, does not consider it necessary to examine his complaints in that regard under Article 14 of the Convention taken in conjunction with Article 8.", "B. Widow's pension", "54. The applicant argued that the provision of a widow's pension to a surviving spouse was clearly intended to promote family life. He maintained that a widow's pension was paid to, among others, a widow who had dependent children at the date of her husband's death once she was no longer in receipt of child benefits. He submitted that the provision of the pension to a surviving spouse was intended to recognise and promote the family relationship between spouses and that entitlement to it affected the way in which married partners arranged their financial affairs. He thus submitted that his complaint as regards future non-entitlement to a widow's pension fell within the ambit of Article 8 of the Convention.", "55. The Government, at the outset, submitted that the widow's pension did not fall within the ambit of Article 8 of the Convention because it was payable following bereavement and, in contrast to the widowed mother's allowance, was not aimed at enhancing family or private life. However, later in the proceedings before the Court the Government accepted the applicant's argument that the widow's pension fell within the ambit of that Article.", "56. The Court has already concluded (see paragraph 50 above) that no issue of discrimination contrary to Article 14 arises as regards entitlement to a widow's pension on the facts of this case.", "It follows that it is unnecessary for the Court to consider whether the applicant's complaints in the context of the widow's pension fall within the scope of Article 8 of the Convention.", "III. ALLEGED DISCRIMINATION SUFFERED BY THE APPLICANT'S LATE WIFE", "57. The applicant complained also about discrimination suffered by his late wife in respect of the decision to refuse him a widow's payment and a widowed mother's allowance, and in respect of his future non-entitlement to a widow's pension, notwithstanding the social-security contributions made by her during her lifetime. The Court considers that this aspect of the complaint does not raise any issues separate from those raised in respect of the discrimination alleged to have been suffered by the applicant himself. In the light of the conclusions reached above, the Court does not consider it necessary to consider this aspect of the complaint.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "58. The applicant also complained that he had no effective remedy before a national authority because the discrimination of which he complained was contained within unambiguous primary legislation.", "59. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "60. The applicant argued that, because the discrimination of which he complained was contained in unambiguous primary legislation, and because the Convention had not at the relevant time been incorporated into domestic law, there were no means by which he could challenge the refusal of benefits before the domestic courts or other authorities.", "61. The Government did not submit any observations on the merits of the applicant's complaints.", "62. The Court reiterates that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's primary legislation to be challenged before a national authority on grounds that it is contrary to the Convention (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 47, § 85). It is therefore unable to accept the applicant's argument.", "63. The facts of the present case therefore disclose no violation of Article 13 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "64. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "65. In respect of pecuniary damage, the applicant claimed:", "(i) 21,804.07 pounds sterling (GBP) in respect of loss of the widow's payment (GBP 1,000) and the widowed mother's allowance up to 9 April 2001, less deductions in respect of the invalid care allowance and the one-parent benefit paid to him over that period (GBP 20,804.07);", "(ii) widowed mother's allowance payments in respect of an ongoing period after 9 April 2001;", "(iii) widow's pension payments once his entitlement to the widowed parent's allowance ceased; and", "(iv) interest at the rate of 8% per annum on the arrears of all widows' benefits found owing to him from 7 June 1996 until the date of judgment.", "66. The Government accepted the applicant's calculation in respect of the widow's payment and the widowed mother's allowance payable up to 9 April 2001. It opposed the applicant's claim for interest on the basis that social-security benefits are not generally paid for investment purposes.", "The Government thus concluded that the applicant was entitled to GBP 21,804.07 in respect of pecuniary damage.", "67. The Court notes that the applicant's calculations as to the amount of the widow's payment and the widowed mother's allowance payable after deductions until implementation of the new scheme created by the 1999 Act on 9 April 2001 is not disputed by the Government.", "68. The Court further observes that, from 10 April 2001, the applicant has been entitled to claim the widowed parent's allowance in exactly the same way as he could, had he been a woman, have claimed the widowed mother's allowance under the 1992 Act.", "69. The Court considers that interest can be claimed from the dates on which each recoverable element of past pecuniary damage accrued (see, among other authorities, Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 24, ECHR 2000-IX).", "70. In these circumstances, and making an award on an equitable basis, the Court awards compensation to the applicant in the sum of GBP 25,000 in respect of the refusal to grant him the widow's payment and the loss of the widowed mother's allowance up to 9 April 2001.", "B. Costs and expenses", "71. The applicant also claimed GBP 19,142.94 in respect of costs and expenses, inclusive of value-added tax (VAT). This included the fees of the applicant's solicitors and counsel together with fees for liaison with other non-governmental organisations in connection with the case and the fees of an expert social economist.", "72. The Government did not dispute the base hourly rates claimed by the applicant's solicitors, but submitted that a 100% uplift on those fees was unjustified. They stated that the hourly rate charged by the applicant's counsel was also excessive. They argued that sums in respect of liaison with other non-governmental organisations should not be recoverable and maintained that, if their preliminary objections as to the applicant's complaint relating to non-entitlement to the widow's pension was upheld by the Court, the applicant should not be entitled to that part of his costs and expenses connected to that complaint. The Government suggested that a reasonable sum in respect of costs and expenses would be GBP 3,000 inclusive of VAT.", "73. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II).", "74. The Court does not consider that its conclusions in respect of the applicant's complaint about non-entitlement to a widow's pension imply that the associated legal costs and expenses were unnecessarily incurred or were unreasonable as to quantum (see Smith and Grady (just satisfaction), cited above, § 30, and Jordan v. the United Kingdom (no. 1), no. 30280/96, § 42, 14 March 2000). However, it does consider that the uplift included in the solicitor's fees was unwarranted and that the counsel's fees were excessive.", "In light of the above, the Court awards the global sum of GBP 12,500 for legal costs and expenses, inclusive of VAT.", "C. Default interest", "75. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASES", "7. The facts of each case, as submitted by the parties, may be summarised as follows.", "A. Mr Hobbs, no. 63684/00", "8. Mr Thomas William Hobbs is a United Kingdom national, born in 1921 and living in Southampton.", "9. The applicant ’ s wife died on 25 February 1998. On 11 October 2000 he contacted the Inland Revenue (“IR”) and applied for widow ’ s bereavement allowance (“WBA”: see paragraph 21 below) for the years 1998/9 and 1999/2000. He was informed that he did not qualify for the tax allowance, since he was a man and the law provided only for payments to widows.", "B. Mr Richard, no. 63475/00", "10. Mr Richard was born on 21 May 1957 and lives in Dunfermline. He was widowed on 14 October 1995. There were two children of the marriage, born in 1987 and 1993.", "11. In around November 1995 the applicant telephoned the IR requesting an allowance equivalent to that received by a widow. The IR told him that he was ineligible for WBA. The applicant applied again by letter dated 19 July 2000, but by a letter dated 3 August 2000 he was informed the WBA was not available for widowers.", "12. In around June 1997 the applicant applied to the Benefits Agency (“BA”) for social security benefits equivalent to those to which a widow would have been entitled (see paragraphs 29-37 below). His claim was refused by the BA on 18 June 1997. The applicant wrote on 22 June 1997 requesting an appeal against this decision and requesting that the appeal be heard after the Court had decided the lead case on widowers ’ benefits. On 8 May 2000 the applicant requested that his appeal be proceeded with. It was rejected on 15 May 2000.", "13. The applicant began living with another woman in October 1999. In August 2000 he reapplied for widows ’ benefits and was refused again on 16 August 2000.", "C. Mr Walsh, no. 63484/00", "14. Mr Walsh was born on 19 July 1955 and lives in London. He was widowed on 1 March 1997. There were two children of the marriage, born on 22 February 1991 and 29 December 1992.", "15. On 30 May 2000, the applicant applied to the BA for social security benefits equivalent to those which a widow in his circumstances would receive. He was refused by a letter dated 6 June 2000.", "16. On 3 July 2000 the applicant applied to the IR for a WBA or equivalent. He was refused by a letter dated 11 July 2000.", "D. Mr Geen, no. 63468/00", "17. The applicant was born on 20 October 1958 and lives in Maidenhead. His wife died on 17 October 1995. There were three children of the marriage, born 18 November 1987, 22 August 1989 and 22 April 1992.", "18. In his application form, which was lodged with the Court by facsimile under cover of an introductory letter dated 29 September 2000, there was a general complaint about the discriminatory nature of the widow ’ s social security and taxation systems, in standard paragraphs included in all the widowers ’ applications submitted by the applicant ’ s solicitors. In the section dealing with the particular facts of the applicant ’ s case, there was no mention of any contact with the IR concerning WBA. An amended application form was sent to the Court under cover of a letter dated 15 March 2001. A paragraph had been added, stating that in or around December 1995 or January 1996 the applicant had made enquiries at his local tax office about entitlement to tax rebates or allowances following bereavement, and had been told that he had no entitlement. Reference was made in the amended application form also to “the decision of the Inland Revenue made in July 1996 which is ongoing”, and on 26 March 2001 the applicant sent the Court a copy of a letter of refusal from the IR dated 9 July 1996.", "19. On 30 May 2000 the applicant applied to the BA for survivor ’ s benefits. He was refused by a letter dated 5 June 2000. This information was included in the application form lodged on 29 September 2000.", "20. In their observations on admissibility dated 4 October 2002, the Government informed the Court that the applicant had also made a formal claim to the IR for WBA on 29 September 2000, which had been refused on 3 October 2000. This was confirmed by the applicant in his observations dated 28 November 2002." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Income and Corporation Taxes Act 1988 (“the 1988 Act”)", "21. Widow ’ s bereavement allowance (“WBA”) was governed by section 262(1) of the Income and Corporation Taxes Act 1988, which provided:", "“Where a married man whose wife is living with him dies, his widow shall be entitled –", "(a) for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year, and", "(b) (unless she marries again before the beginning of it) for the next following year of assessment, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year.”", "A widow had six years from the end of the tax year in which her husband died to claim the allowance.", "22. WBA was introduced by the Finance Act 1980, at a time when married couples were taxed as a single entity, with the man receiving an allowance in respect of his wife ’ s earnings (the married man ’ s allowance: “MMA”). When a married man was widowed, he could continue to claim MMA in the year of his wife ’ s death. The aim of WBA was to enable widowed women to claim the equivalent of the MMA in the year of bereavement, rather than being restricted to a single person ’ s allowance (“SPA”).", "23. Independent taxation of married men and women was introduced from 1990/91. Thereafter each married partner was entitled to claim a personal allowance, although the husband retained the right to claim a married couples allowance (“MCA”), which was the difference between the old MMA and the SPA.", "24. With effect from 1993/94 a married woman became entitled (subject to certain conditions) for the first time to share the MCA with her husband, or the couple together could elect that the wife could set the full amount of the MCA against her income. From 1994 the Government began successively to reduce the value of WBA and MCA, so that the WBA was worth a maximum of GBP 285 in 1998/99 and GBP 197 in 1999/2000.", "25. Section 34 of the Finance Act 1999 abolished WBA in relation to deaths occurring on or after 6 April 2000.", "B. The House of Lords ’ judgment in Wilkinson", "26. The question whether a claimant who had been refused widow ’ s bereavement allowance after 2 October 2000 on the basis of his male sex could have the decision overturned under the Human Rights Act 1998 (“the Act”) was examined by the House of Lords in R. v. Her Majesty ’ s Commissioners of Inland Revenue ex parte Wilkinson [200 5 ] UKHL 30. The IR accepted that the WBA fell within the scope of Article 1 of Protocol No. 1, did not attempt to justify the difference in treatment between male and female bereaved spouses and admitted that the refusal of allowances to widowers was a breach of their Convention rights. However, the IR argued—and the House of Lords accepted—that it had not been unlawful under the Act for the IR to refuse to grant the WBA to men because it would have been contrary to primary legislation so to do (section 6(2)(b) of the Act ).", "27. Lord Hoffmann, with whom the other Law Lords agreed, went on to consider the hypothetical question of what damages Mr Wilkinson could have recovered if his claim had not been barred by section 6(2)(b) of the Act. Since the purpose of an award of damages under the Act was to allow claimants to recover in an English court what they would have recovered in Strasbourg, Lord Hoffmann discussed the Court ’ s approach to just satisfaction in discrimination cases (§§ 26-28) :", "A general principle applied to affording just satisfaction is to put the applicant so far as possible in the position in which he would have been if the State had complied with its obligations under the Act. In a discrimination case, in which the wrongful act is treating A better than B, this involves forming a view about whether the State should have complied by treating A worse or B better. Normally one would conclude that A ’ s treatment represented the norm and that B should have been treated better. In some cases, however, it will be clear that A ’ s treatment was an unjustifiable anomaly. Such a case is Van Raalte v Netherlands ..., in which the Court found a breach of Article 14 read with Article 1 of the First Protocol because the law exempted unmarried childless women over 45 from paying contributions under the General Child Benefits Act without exempting unmarried childless men. The exemption for women was abolished in 1989 but judgment was not given until 1997. The court rejected a claim for repayment of the contributions from which the applicant would have been exempt if he had been a woman.", "In my opinion the reason for the rejection of this claim is that if the State had complied with its Convention obligations, it would done what it did in 1989 and not exempted either men or women. It follows that the applicant would have been no better off. He would still have had to pay. In the circumstances, the judgment itself was treated as being sufficient just satisfaction.", "The same is true in this case. There was no justification whatever for extending the widows ’ allowance to men. If, therefore, Parliament had paid proper regard to Article 14, it would have abolished the allowance for widows. Mr Wilkinson would not have received an allowance and no damages are therefore necessary to put him in the position in which he would have been if there had been compliance with his Convention rights”.", "28. Lord Brown of Eaton-under-Heywood dealt with the two contrasting cases of Van Raalte and Darby v Sweden and continued (§§ 47 – 53) :", "“... In any claim against a public authority for financial compensation in respect of past discrimination it must be remembered that the general public (often the general body of taxpayers) will be footing the bill. In determining the requirements of just satisfaction, just as in the application of the Convention as a whole, regard should be had not only to the victim ’ s rights but also to the interests of the public generally. Take a case where A establishes discrimination on the basis that he should have been placed in the same class as B, both of them advantaged financially over class C. To compensate A for his past financial disadvantage vis à vis B would be costly for C (the non-benefiting class of taxpayers)—disproportionately so if class A is large, classes B and C comparatively small. Whether this would be fair to C would depend upon the justification for advantaging A and B over C in the first place and indeed for doing so to the extent that B was originally advantaged over A and C. It might well be fairer overall to leave A uncompensated in respect of the past discrimination against him. At the very least, bearing in mind that class A are taxpayers too, fairness to C might require that class A ’ s compensation be reduced to reflect the fact that they too would have had to pay more tax to fund their own additional benefits. Just these considerations, indeed, may yet arise in the parallel case of Hooper were a claim for just satisfaction now to be advanced in Strasbourg.", "Moreover, by the same token that it will not invariably be right to compensate the complainant even where there is a case for preferential treatment of one class and A falls into it, it will not invariably be inappropriate to compensate the complainant even though there was no case for anyone to be treated preferentially in the first place. Take, for example, the case of a public body unjustifiably paying its male employees more than women doing the same job. It could not then reasonably be argued that the men ’ s excess wages represented an unjustified windfall which should not properly be paid to the women also. Such an argument, indeed, would almost certainly fail even if the employer proved that, had all employees been paid the same, this would have been at the women ’ s (lower) rate—a plausible case if, say, the women employees substantially outnumbered the men. This example, I may say, formed the bedrock of Miss Rose ’ s argument in respect of just satisfaction in the present appeal.", "What, then, distinguishes the employee case from Van Raalte itself? The critical feature of the Van Raalte case which to my mind distinguishes it from the employee case is that the complainant in Van Raalte was in essentially the same position as all other contributors to the scheme (save only for the wrongly exempted group). Realistically the discrimination was no more against him than against the others: there was simply no case for exempting anyone. It would thus have been most unfair to the general body of contributors (category C) to have required them to subsidise not merely the exempted class of women but also the equivalent men. That, however, is not the position in employment cases. In the postulated employment case the discrimination can clearly be seen to have been against the less well-paid women. If the men doing the same work were thought to be worth the higher wage, so too were the women. There can be nothing unfair in making the employer compensate the women in respect of the past discrimination against them (although, of course, in the case of a public authority, the compensation will indirectly fall to be paid by the general public).", "Into which category, then, does the present appeal fall? Is the situation here akin to that in Van Raalte or to the employment type of case? To my mind there can be only one answer to this question: the position here is just as it was in Van Raalte. The Court of Appeal rightly characterised the widows bereavement allowance as ‘ an anachronistic relic of a tax regime abandoned by 1994 ’ and rightly concluded that the discrimination ‘ provided widows with an unjustified advantage not merely over widower taxpayers but over all taxpayers. ’", "In a case like this, therefore, the past discrimination suffered by widowers is less (and less deserving of compensation) than would be the discrimination suffered by the general body of taxpayers were they now required to fund this unjustified benefit not only for qualifying widows but for widowers too.", "Even though, as the House was told, the issue of just satisfaction only arose at the reconvened hearing before the Court of Appeal and at the prompting of the Court itself, in my judgment it provides an ample basis for declining now to pay out to this appellant.”", "C. Social security benefits for widows before 9 April 2001", "29. Under the Social Security and Benefits Act 1992 (“the 1992 Act”) “widows ’ benefits” ( Widow ’ s Payment, Widowed Mother ’ s Allowance and Widow ’ s Pension ) were paid for out of the National Insurance Fund. By Section 1 of the 1992 Act, the funds required for paying such benefits were to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament. Male and female earners were obliged to pay the same social security contributions in accordance with their status as employed earners or self-employed earners. The eligibility criteria for each benefit were as follows:", "1. Widow ’ s Payment", "30. Under Section 36 of the 1992 Act, a woman who had been widowed after 11 April 1988 was entitled to a widow ’ s payment if:", "( i ) she was under pensionable age (60) at the time when her husband died, or he was not then entitled to a Category A retirement pension;", "(ii) her husband satisfied certain specified social security contribution conditions set out in a Schedule to the 1992 Act.", "31. The benefit was not payable to a widow if she and a man to whom she was not married were living together as husband and wife at the time of her husband ’ s death.", "32. According to section 19(6) of the Social Security (Claims and Payments) Regulations 1987 (and see also section 1(2)(a) of the Social Security Administration Act 1992), a widow had to claim the Payment within twelve months of her husband ’ s death. As from April 1997 the time-limit was reduced to three months ( Social Security (Miscellaneous Amendments No.2) Regulations 1997 ).", "2. Widowed Mother ’ s Allowance", "33. Under Section 37 of the 1992 Act, a woman who had been widowed was entitled to a Widowed Mother ’ s Allowance if her husband had paid the required National Insurance contributions and she was either pregnant by her late husband or entitled to child benefit in respect of a child of the marriage. Child benefit is available in respect of a child for any week in which he or she is under the age of 16, or under 19 and studying full-time up to A- level or equivalent, or aged 16 or 17 and registered for work or training (section 142 of the 1992 Act).", "34. This benefit was not payable for any period after the widow remarried or in which she and a man to whom she was not married were living together as husband and wife.", "35. According to section 19(6) of the Social Security (Claims and Payments) Regulations 1987 (and see section 1 (2)(b) of the Social Security Administration Act 1992), a widow had to make a claim to receive the benefit, which could be backdated 12 months from the date of claim. As from April 1997, the benefit could be backdated only three months from the date of claim (Social Security (Miscellaneous Amendments No.2) Regulations 1997).", "3. Widow ’ s Pension", "36. Under Section 38 of the 1992 Act, a woman who had been widowed was entitled to a Widow ’ s Pension if her husband satisfied the contribution conditions set out in a Schedule to the Act; and", "( i ) at the date of her husband ’ s death she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65; or", "( ii) she ceased to be entitled to a Widowed Mother ’ s Allowance at a time when she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65.", "37. This benefit was not payable for any period after the widow remarried or in which she and a man to whom she was not married were living together as husband and wife, or for any period in which she was entitled to a Widowed Mother ’ s Allowance.", "D. The Welfare Reform and Pensions Act 1999", "38. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) came into force on 9 April 2001. Section 54 of this Act introduced the Bereavement Payment which replaced the Widow ’ s Payment. The same conditions applied, except that the new payment was available to both widows and widowers whose spouse died on or after 9 April 2001.", "39. Section 55 of the 1999 Act introduced the Widowed Parent ’ s Allowance. Identical conditions applied as for Widowed Mother ’ s Allowance, except that the new allowance was available to:", "( i ) widows and widowers whose spouse died on or after 9 April 2001 and who were under pensionable age (60 for women and 65 for men) at the time of the spouse ’ s death, and", "(ii) widowers whose wife died before 9 April 2001, who had not remarried and were still under pensionable age on the that day.", "40. Section 55 also introduced a Bereavement Allowance for widows and widowers over the age of 45 but under pensionable age at the spouse ’ s death, where no dependant children existed. The deceased spouse had to have satisfied the relevant contribution conditions and died on or after 9 April 2001. The Bereavement Allowance is payable for 52 weeks from the date of bereavement, but is not payable for any period after the survivor reaches pensionable age or remarries or lives with another person as husband and wife, or for any period for which the survivor was entitled to Widowed Parent ’ s Allowance.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1", "A. Tax Allowance", "41. The applicants complained that the United Kingdom authorities ’ refusal to grant them WBA or equivalent constituted discrimination on grounds of sex contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 1 provides:", "“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "1. The Government ’ s preliminary objection concerning Mr Geen", "42. The Government were concerned that there might have been a factual misunderstanding of Mr Geen ’ s application at the admissibility stage and they invited the Court to reconsider the issue. They argued that Mr Geen ’ s oral enquiry about WBA in December 1995/January 1996 would not have constituted a valid domestic application for the allowance, and Mr Geen could not therefore claim to be a victim of discrimination on that basis. In any event, his application had been introduced on 29 September 2000, more than six months after any refusal of WBA in 1995 or 1996. His application to the Court pre-dated and made no mention of the refusal of WBA on 3 October 2000. There was no factual basis for the complaint about refusal of bereavement allowance, and this complaint should therefore be ruled inadmissible.", "43. Mr Geen pointed out that his case had already been declared admissible by the Court on 8 April 2003. However, if the Court was minded to revisit its decision, he argued that he had become a victim simply by making an application for WBA, which he knew would be refused.", "44. The Court recalls that Article 35 § 4 of the Convention enables it to dismiss an application it considers inadmissible “at any stage of the proceedings”. Thus, even at the merits stage the Court may re-consider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Blečić v. Croatia [GC], no. 5953 2 /00, § 65, ECHR 2006).", "45. In previous decisions concerning claims by widowers about the United Kingdom ’ s social security and taxation systems, the Court has made the following findings concerning the application of the rules on admissibility (see, for example, McGillen and Others v. the United Kingdom (dec), nos. 77129/01, 27996/02, 28067/02, 26083/03, 4 April 2006):", "(1) Since under the 1992 Act and subordinate legislation, a widow was not automatically entitled to survivors ’ benefits and had to claim them from the relevant authority, unless or until a man has made a claim to the domestic authorities for bereavement benefits, he cannot be regarded as a “victim” of the alleged discrimination involved in the refusal to pay such benefits, because a woman in the same position would not automatically be entitled to widow ’ s benefits until having made a claim. However, as long as an applicant has made clear to the authorities his intention to claim benefits, the precise form in which he has done so is not important.", "(2) Similarly, a widower who did not apply within the age- and time-limits as they applied to women cannot claim to be a victim of discrimination, because a woman in his position would also have been refused the benefits or allowance in question.", "(3) The refusal of widow ’ s benefits to men is not a “continuing violation or situation”, since a widower cannot claim to be a victim of discrimination until he has applied for benefits and been refused. It has, therefore, been the Court ’ s consistent practice in such cases to hold that the six months time-limit in Article 35 § 1 of the Convention begins to run from the date of the final refusal by the domestic authorities of such benefits.", "46. Applying these principles in the present case, the Court notes that the applicant appears to have requested and been refused WBA in December 1995/January 1996 and again in July 1996. His complaint about these refusals, however, was not introduced until his amended application form was lodged on 15 March 2001, and should therefore have been declared inadmissible under the six months rule. Although he appears to have applied formally for WBA on 29 September 2000, the same day that he submitted his application to the Court, he made no mention of this request and the IR ’ s refusal of 3 October 2000 until 28 November 2002. In its decision of 8 April 2003, however, although the Government raised an issue under the six months rule, the Court declared the application admissible without reference to the fact that the applicant ’ s complaints about the refusals of WBA had been introduced some time after his first application form was lodged.", "47. The six-month rule serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible and it is not open to the Court to set the rule aside (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).", "48. In the present case Mr Geen ’ s complaints about the refusals of WBA were introduced outside the six months time-limit in Article 35 § 1. The Court cannot, therefore, take cognisance of their merits.", "2 The merits", "49. The Government accepted that WBA fell within the ambit of Article 1 of Protocol No. 1 and that Article 14 was, accordingly, engaged. They did not seek to argue that the continued availability of the allowance to widowed women only between 1994 and 2000 could be justified, but denied that this had been to the detriment of widowed men in particular. WBA had originally been introduced to compensate for the unfairness which would arise from the fact that, if a husband died early in a tax year, his widow would be entitled only to a single person ’ s allowance, whereas a widowed husband would continue to receive the higher married man ’ s allowance in the year of his wife ’ s death (see paragraphs 21-25 above). After the introduction of the new regime of independent taxation in 1990-91, the allowance became an anachronism and ceased to be objectively justified and a small group of taxpayers—widows—received an unjustified advantage over the wider population of taxpayers.", "50. The applicants Mr Richard and Mr Walsh submitted that the Government had no defence to their complaint of discrimination. In the domestic proceedings (see paragraphs 26-28 above) the IR had accepted that the WBA fell within the scope of Article 1 of Protocol No. 1 and did not offer any justification for its availability to widowed women but not men.", "51. The Court agrees with the parties that the tax allowance in question fell within the scope of Article 1 of Protocol No. 1 and that Article 14 is thus engaged (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 43, ECHR 2005).", "52. The applicants complain of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article. A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006; Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV).", "53. WBA was introduced at a time when married couples were taxed as a single entity, with a tax allowance available to the man in respect of his wife ’ s earnings. A widowed man could continue to claim this married man ’ s allowance in the year following the wife ’ s death, whereas a widowed woman received only a single person ’ s allowance. WBA was intended to rectify this inequality, but became obsolete when independent taxation of married men and women was introduced from 1990/91 and spouses were given the choice, from 1993/94, as to how to share the married couples allowance (see paragraphs 21-25 above). The Government have not attempted to justify the availability of the WBA to female widows only from 1990/91 until its abolition in respect of deaths occurring after 6 April 2000. The Court does not consider that, during the period when the applicants were denied the allowance, the difference in treatment between men and women as regards the WBA was reasonably and objectively justified.", "54. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 as regards Mr Hobbs, Mr Richard and Mr Walsh.", "B. Other benefits", "55. Mr Walsh, Mr Geen and Mr Richard complained in addition about the non-payment to them of Widow ’ s Pension and, initially, about the non-payment of Widow ’ s Payment and Widowed Mothers ’ Allowance (see paragraphs 29-37 above).", "56. The Court notes that parties have reached a friendly settlement as regards the claims for Widow ’ s Payment and Widowed Mother ’ s Allowance (see paragraph 5 above). It does not consider that respect for human rights as defined in the Convention and protocols requires it to continue with its examination of these complaints (see Article 37 of the Convention). It therefore strikes out these parts of the applications.", "57. As for the claims regarding Widow ’ s Pension, it is recalled that a woman who had been widowed was entitled to this benefit if she was at the date of her husband ’ s death over the age of 45 but under the age of 65 or if she ceased to be entitled to a Widowed Mother ’ s Allowance when she was over the age of 45 but under the age of 65. All three applicants were under the age of 45 when their wives died. Mr Richard and Mr Walsh ’ s children are still young enough to give rise to entitlement to Widowed Mother ’ s Allowance, so these two applicants would not currently qualify for Widow ’ s Pension even if they had been women. Although they might, possibly, become eligible at some time in the future, their claims for Widow ’ s Pension are hypothetical and cannot give rise to any violation of the Convention ( see Willis, § 49 and also, for example, Dodds and others v. United Kingdom (dec.), no. 59314/00, 8 April 2003).", "58. Mr Geen ’ s children are now 17 and 19 years of age, and it is possible that a woman in his position would have ceased to be entitled to Widowed Mother ’ s Allowance and become entitled to a Widow ’ s Pension. However, the parties to the present case have not submitted full observations concerning the non-availability to men of Widow ’ s Pension, which will be considered by the Court in the lead cases on that issue, Runkee v. the United Kingdom (no. 42949/98) and White v. the United Kingdom (no. 53134/99). In these circumstances, the Court decides to reserve its consideration of Mr Geen ’ s claim for Widow ’ s Pension.", "59. In conclusion, therefore, the Court strikes out the applicants ’ claims as regards Widow ’ s Payment and Widowed Mother ’ s Allowance. It finds no violation in respect of Mr Richard ’ s and Mr Walsh ’ s claims for Widow ’ s Pension, and adjourns its consideration of Mr Geen ’ s claim for Widow ’ s Pension.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "60. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "61. The applicants, Mr Richard and Mr Walsh, argued that they were entitled to compensation for the discriminatory refusal to grant them WBA, in the amount that they would have received had they been widows, plus interest. They cited in their support three cases where the Court had awarded compensation for the wrongful levying of taxes or refusal of a tax allowance ( S.A. Dangeville v. France, no. 36677/97, ECHR 2002-III; Darby v. Sweden, judgment of 23 October 1990, Series A no. 187; P.M. v. the United Kingdom, no. 6638/03, 19 July 2005) and also the case of Willis, cited above. They submitted that the Court ’ s approach in these cases complied with the principle of restitutio in integrum and also encouraged compliance with the Convention, since there would be less incentive for States to avoid discrimination if they were not required to pay compensation.", "62. Such an approach was in their view also consistent with the case-law of the European Court of Justice (“ ECJ ”), which had on a number of occasions addressed the remedy for unlawful discrimination and concluded that it should be by way of “levelling up”—that is, treating the complainant in the same way as the favoured group—rather than “levelling down”—giving no compensation on the basis that neither class should have received the benefit. In Kowalska v. Frie und Hansestadt Hamburg [1990] ECR I-2591 the ECJ had held:", "“ ... where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty into national law, the only valid point of reference ... ”", "(and see also Nimz v. Frie und Hansestadt Hamburg [1991] ECR I-297; Johnson v. Chief Adjudication Officer [1991] ECR I-3723; Remi van Cant v. Rijksdienst voor pensionen [1993] ECR I-3811; Smith v. Avdel Systems [1994] ECR I-4435).", "63. In the applicants ’ submission, this approach by the ECJ accorded strongly with the important policy of deterring discrimination. On Lord Hoffmann ’ s analysis in Wilkinson (see paragraph 2 7 above) it was open to a discriminator to avoid any meaningful sanction; indeed, the more arbitrary and unjustifiable the benefit provided to the favoured class, the more likely the discriminator was to succeed. Furthermore, the ECJ approach avoided the need for undesirable speculation as to what the legislature—or employer—would have decided if it had not decided to introduce discrimination. Lord Hoffmann ’ s conclusion was not based on any evidence as to what Parliament would have done, but upon his own opinion as to the merits of WBA and what the best course would have been. It should not be open to judges to re-write history in this way. It was notable that in Wilkinson neither the IR Commissioners nor Lord Hoffmann were able to cite any authority from the extensive corpus of domestic and EC discrimination law in favour of the proposition that no remedy should be awarded. Lord Hoffmann could rely only on a single Court judgment, Van Raalte v. Netherlands, but this was, in the applicants ’ submission, a far from satisfactory authority, since there was no explanation as to why damages were not awarded or why the Court was departing from the approach it had adopted less than three years before, in Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B.", "64. The Government submitted that just satisfaction under Article 41 of the Convention depended in every case on an assessment of what remedy was appropriate in the particular circumstances. It was not intended to be a sanction on the State, but was instead designed to be compensatory.", "65. Where, as with WBA, the Government had already removed the discriminatory anomaly, the Court should take account of the wider public interest. It was common ground that WBA was an anachronistic relic of a tax regime abandoned by 1994. It was true that WBA discriminated in favour of widows, but it did so in comparison to all other taxpayers, not just widowed men. The principle of just satisfaction did not require that an anomaly should be further extended. The taxpayer should not be required to subsidise, through an award of pecuniary damages, men who happened to have been widowed during the relevant period, in addition to the widows who had already received the allowance.", "66. The Court ’ s approach in Van Raalte v. the Netherlands and that of the House of Lords in Wilkinson was in the view of the Government correct in principle and should be followed. The European Court of Justice (“ECJ”) cases relied on by the applicants were not relevant, and the context in which questions of compensation for discriminatory treatment arose before the ECJ was quite different, as was the impact of a decision to “level up”. In the present cases, the advantage provided to widowed women did not provide the only, or even an appropriate, reference point for measuring the treatment which should properly be afforded to widowed men, who were in the same position as all other tax-payers. Darby v. Sweden and P.M. v. the United Kingdom were not comparable to the present cases since each had concerned a discriminatory failure to extend to the applicant a justifiable tax relief or exemption.", "67. The Court recalls that the principle underlying the provision of just satisfaction is that the applicant should as far as possible be put in the position he would have enjoyed had the violation found by the Court not occurred ( Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). As shown by the judgment in Van Raalte (cited above), it does not inevitably follow from a finding of a violation of Article 14 that an award of just satisfaction must be made to reflect any pecuniary damage allegedly suffered as a result of the differential treatment. Whether such an award is made will depend on all the circumstances of the case, including the field in which the discriminatory treatment arose; whether the applicant belongs to a similarly affected class of persons; the size of any such class; the nature of the legislative provision, if any, giving rise to the discriminatory treatment; and, where such discrimination has been eliminated as the result of an amendment of the relevant provisions, the nature of, and reasons underlying, the amendment.", "68. The present case concerns the differential treatment of bereaved men and women in the years from 1994 to 1999 in respect of the grant of tax allowances under the 1988 Act. The applicants, as widowers, belonged to a large class of persons who were similarly denied the allowances granted to widows during that period. The allowances were, as noted above, originally introduced in 1980, when married couples were taxed as a single entity, to enable widows to claim the equivalent of the married man ’ s allowance in the year of bereavement and thus to equate their position with that of widowers. However, when the independent taxation of married men and women was introduced, the underlying purpose of the WBA ceased to exist and the allowance was removed in the 1999 Act as being an anomalous feature of a tax regime abandoned in 1994, which had unduly favoured widows, not only over widowers, but also over other taxpayers.", "69. In these circumstances, the Court, like the House of Lords in the Wilkinson case (see paragraphs 26-28 above ), finds no reason to remedy the inequality of treatment by “levelling up” and awarding the value of tax benefits which had been found to be unjustified. It accordingly makes no award by way of just satisfaction in respect of the pecuniary loss alleged to have been suffered.", "B. Non-pecuniary damage", "70. Mr Hobbs claimed GBP 4,000 for anguish and loss of sleep caused by the discrimination over a period of years, and Mr Walsh and Mr Richard each claimed GBP 2,000 for distress and frustration.", "71. The Government submitted that it would not be appropriate to award compensation for non-pecuniary damage in this case.", "72. The Court notes that the applicants have produced no evidence to substantiate their claims. It does not accept that they were caused real and serious emotional damage as a result of being denied a tax allowance of the relatively low value of the WBA (see paragraph 21 above). No award can accordingly be made under this head.", "C. Costs and expenses", "73. Mr Hobbs, who was not represented, claimed costs of GBP 1,040, calculated on the basis of GBP 20 per letter and GBP 20 per hour labour and overheads. Mr Richard and Mr Walsh applicants each claimed GBP 660.74 in respect of the costs and expenses of their claims relating to WBA, inclusive of value added tax (“VAT”).", "74. The Government did not accept that Mr Hobbs ’ costs and expenses had genuinely been incurred. Although they considered that the other two applicants ’ costs were high, they did not object to the sums being awarded in full.", "75. The Court is not satisfied that Mr Hobbs ’ legal costs were actually incurred, and thus makes no award to him under this head (see, for example, Steel and Morris v. the United Kingdom, no. 68416/01, § 194, ECHR 2005). It notes that the Government does not contest the represented applicants ’ claims for costs, and thus awards Mr Richard and Mr Walsh EUR 800 each, together with any tax that may be payable.", "D. Default interest", "76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASES", "6. The facts of each case, as submitted by the parties, may be summarised as follows.", "A. Mr Runkee", "7. Mr Runkee was born in 1938 and lives in Hull.", "8. He married in 1964. He and his wife had three children, born in 1965, 1966 and 1974. On 15 March 1998 his wife died. She had worked full time for eight years until becoming pregnant and had made full social security contributions.", "9. The applicant notified the Benefits Agency of his wife's death and of his intention to claim “widowers'benefits” on 31 March 1998. By a letter dated 16 April 1998, the Benefits Agency informed the applicant that because he was not a woman he was not entitled to widow's benefits. The applicant lodged a statutory appeal against this decision on 1 May 1998, but abandoned it when advised that the appeal was bound to fail.", "10. At the time of his application to the Court, Mr Runkee was in receipt of means-tested statutory benefits, including Income Support and Housing and Council Tax Benefits. Were he a woman, his entitlement to Widow's Pension would have been offset against these benefits, to the extent that, in his present circumstances, he would have received no additional money in respect of Widow's Pension.", "B. Mr White", "11. Mr White is a United Kingdom national, born in 1942 and living in Warrington.", "12. He married in 1960. He and his wife had two children, one of whom was adopted and born in 1955, the other of whom was born in 1968.", "13. On 8 March 1999 his wife died. She had worked until the birth of her son in 1968 and had made reduced social security contributions.", "14. The applicant notified the Benefits Agency of his wife's death and of his intention to claim “widowers'benefits” on 10 March 1999. On 21 June and 8 September 1999, Angela Eagle, a Minister from the Department of Social Security, wrote to the applicant's Member of Parliament confirming that as a man he was not entitled to claim widows'benefits." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Widow's Pensions 1925-2001", "15. The following history of the Widow's Pension (“WP”) is taken from Lord Hoffmann's speech in R. v. Secretary of State for Work and Pensions ex parte Hooper and Others [2005] UKHL 29, paragraphs 18-30 :", "“[WP was] first introduced by the Widows', Orphans'and Old Age Contributory Pension Act 1925. The Act provided a pension of 10 shillings a week to any widow whose husband had paid sufficient contributions. There was no age qualification or time limit on payment. Widows were as such entitled to support. But during the Second World War, large numbers of women worked in the armed forces or civilian employment, replacing men on active service. Public attitudes to widowhood changed. Sir William Beveridge said in his 1942 Report on Social Insurance and Allied Services ( Cmd 6404, paragraph 153) that there was no reason why a childless widow should get a pension for life. If she was able to work she should do so. He recommended that all widows should be paid a 13 week transitional allowance to help them adjust to their new circumstances but that longer term pensions should be confined to widows with dependent children. The Government did not accept this advice in full. It considered that an older widow, who had in accordance with convention stayed at home during a long marriage to look after husband and children, would often be severely disadvantaged if she was required to earn her own living. The National Insurance Act 1946 therefore not only gave effect to Beveridge's recommendations by introducing [Widowed Mother's Allowance:'WMA'] and a widow's allowance for 13 weeks after bereavement but also provided WP for widows who were over 50 at the date of the husband's death or who ceased to qualify for WMA when they were over 40.", "The secular trend in the position of women in employment over the next half century reinforced Beveridge's view that being a widow should not, as such, entitle one to a pension. More and more women entered the labour market. But the trend was a slow one and crude comparisons of the numbers of economically active men and women are misleading. Far more women than men worked part-time and the great majority of women were (and remain) unable to escape from the traditional low-paid activities of cooking, caring and cleaning. So the trend to equality was counteracted by political pressure from groups representing widows who claimed that, as the United Kingdom became more prosperous, benefits for widows should be increased rather than reduced. The policies pursued by successive governments were therefore not entirely consistent. The Family Allowances and National Insurance Act 1956 raised to 50 the age at which a woman could claim WP after ceasing to be entitled to WMA. On the other hand, the National Insurance (Old persons'and widows'pensions and attendance allowance) Act 1970 reduced to 40 the age at which WP would be payable (at a reduced rate), whether as a result of bereavement or the cessation of WMA.", "In 1985 the government published a Green Paper on Social Security Reform which pointed out (in paragraph 10.9) that the current system of benefits dated from days when far fewer married women worked:", "' Today two thirds of all married women with children over school age, and over a half of widows between 40 and 60, go to work. The present pattern of benefits nonetheless provides support without regard to widows'other income, in many cases long after they have ceased to be responsible for bringing up children. The Government's view is that it is right to give greater emphasis to providing for widows of working age who have children to support, and for older widows less able to establish themselves in work.'", "Despite this acknowledgement of changes in social conditions, the Social Security Act 1986 made relatively modest adjustments to the system. The 26 week transitional widow's allowance was abolished and the lump sum [Widow's Payment:'WPt'] of £1,000 substituted. The age at which WP became payable, whether on bereavement or cessation of WMA, was raised to 45 and entitlement to the full rate postponed until 55. These provisions were subsequently consolidated in the 1992 Act.", "The 1986 changes were opposed by a strong lobby on behalf of widows. But no one suggested in the course of the Parliamentary debates that WP should be extended to men. It is true that Cruse, a non-governmental organisation for'the widowed and their children', which had taken widowers on board in 1980, said in their 1986-87 annual report:", "' We ... continued to press for a widower's pension, based on his wife's national insurance contributions, and for an allowance to be paid to widowed fathers.'", "But this pressure does not appear to have persuaded anyone to raise the question of WP for widowers in Parliament. The first serious suggestion that widowers should in principle be paid the same benefits as widows came from the European Commission. There had been a Council Directive 79/7/EEC in 1978 on'the progressive implementation of the principle of equal treatment for men and women in matters of social security'which expressly excluded survivors'benefits. In 1987 the Commission produced a proposal for a new Directive (Com (87) 494 Final). It drew attention in an explanatory memorandum to a statement of the Court of Justice in Razzouk and Beydoun v Commission of the European Communities (Cases 75/82 and 117/82), [1984] ECR 1509, 1530, para 16 (a case concerning survivors'pensions under the Community's own Staff Regulations) that the principle of equal treatment of men and women'forms part of the fundamental rights the observance of which the court has a duty to ensure.'Article 4 of the draft Directive provided that there should be no discrimination on grounds of sex in the payment of survivorship benefits:", "' and to this end:", "( a) either the recognition on the same terms for widowers of entitlement to the pensions and other benefits provided for widows;", "( b ) or the replacement of widows'benefits by the creation or extension of a system of individual rights open to all surviving spouses regardless of sex.'", "The House of Lords Select Committee on the European Communities (Sub-Committee C) held an inquiry into the proposal in 1989. Miss Joan C. Brown, a writer on social security matters, said in evidence to the Committee that there was no case for paying older widowers the same pensions as older widows. The only way to produce equality was to level down. But hasty action would cause real hardship to large numbers of older widows who had chosen many years earlier to follow the conventional path of staying home to look after husband and children:", "' the effect of earlier social patterns on women still have to be worked through. This suggests the need to phase out the older widow's pension over a long period —in the order of 10-15 years. Without this, there would be a serious risk of poverty among older widows who had followed the social norms of their day and now find themselves at a severe disadvantage in a changed world as a result.'", "The Select Committee accepted Miss Brown's evidence and reported (Session 1988-89, 10th Report, HL Paper 51):", "' In the United Kingdom ... there might be reluctance to reproduce for widowers the pension a childless widow can receive under the national insurance scheme, irrespective of her earnings, if she is aged 45 or more when her husband dies. This is in recognition of the difficulty the widow may find in re-establishing herself in the labour market —whereas a widower's earning ability would not ordinarily be prejudiced in this way.", "The Committee consider that, despite these difficulties, the concept of equal treatment must require that, eventually, men and women should be provided with survivors'benefits on the same terms. Employment patterns are changing and, if it becomes the norm for married couples to be dependent on the earnings of both partners for most of their working lives, it will make sense for equal survivors'benefits to be available. There is also a need to avoid putting families at a disadvantage if the mother, rather than the father, becomes the principal breadwinner. It would, however, be perverse to deprive widows of benefits they still need in the interests of sex equality. To reduce this danger, a substantial period should be allowed —at least 15 years —before Member States are obliged to equalise survivors'benefits. Community law recognises a principle of'legitimate expectation'which would support this approach.'", "The Government published its response on 4 April 1990 (Cm 1038). It said at para 15:", "' Within the state social security system the Government do not think there is any merit in introducing a universal state insurance benefit for widowers on a par with those currently provided for widows. To extend the current provisions for widows to widowers would cost about £350 million a year. The available evidence indicates that widowers are more likely to be in full time work than widows, are more likely to have higher earnings than widows and are less likely to have dependent children. As a consequence the Government have made it clear to the Commission that the equalisation of survivors'benefits should be removed from this draft directive entirely.'", "In 1991 the Commission withdrew the draft directive pending further consultation with Member States and there has been no further European Union initiative on the question.", "... [O] ver the next few years the question of paying WMA to widowed fathers was raised on more than one occasion (see, for example, a Private Member's Bill introduced by Mr Hartley Booth MP on 13 April 1994 ( Hansard HC Debates (6th Series) vol 241, cols 212-213) and a Written Answer by the Secretary of State for Social Security ( Hansard HC Deb (6th Series) vol 255, 1 March 1995, col 621)). No one suggested paying WP to widowers or, unsurprisingly, abolishing WP for widows. Cruse said in evidence in these proceedings that Mr Hartley Booth's decision to confine his Private Member's Bill to WMA was'tactical'but the need for such tactics suggests that there would have been little support for anything more.", "The abolition of WP came as part of a wider reform of survivorship and other social security benefits in the 1999 Act. It was preceded in 1998 by a Consultation Paper which drew attention to the fact that, in 1995, 7 out of 10 married women worked compared with 1 in 8 in 1946. Half of widows under 60 worked and 47% of widows now had income from occupational pension schemes. The Government took the view that widows without dependent children no longer needed long term support. The extension of WP to men was'not acceptable': it would cost another £250 million a year and would mean giving help to people who were, as a class, unlikely to need it.", "But the abolition of WP was strongly opposed by some members of Parliament, partly on the ground that elderly widows were still disadvantaged compared with men or younger widows and partly on the ground that WP was a contributory benefit and that it would be a breach of faith to deny it to the widows of men who had made contributions and arranged their affairs on the assumption that it would be available. An opposition amendment deferring the abolition of WP until 2020 was defeated but the Government agreed that the changes should not come into force until 9 April 2001 and that the rights of women bereaved before that date should be preserved. ”", "B. WP under the Social Security and Benefits Act 1992", "16. Under Section 38 of the 1992 Act, a woman who had been widowed was entitled to a WP if her husband satisfied the contribution conditions set out in a Schedule to the Act; and", "( i ) at the date of her husband's death she was over the age of 45 (40 for deaths occurring before 11 April 1988 ), but under the age of 65; or", "( ii) she ceased to be entitled to a WMA at a time when she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65.", "17. This benefit was not payable for any period after the widow remarried or in which she and a man to whom she was not married were living together as husband and wife, or for any period in which she was entitled to a WMA.", "C. The position from 9 April 2001", "18. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) came into force on 9 April 2001. Section 54 introduced the Bereavement Payment which replaced the Widow's Payment. The same conditions applied, except that the new payment was available to both widows and widowers whose spouse died on or after 9 April 2001. Section 55 introduced the Widowed Parent's Allowance. Identical conditions applied as for Widowed Mother's Allowance, except that the new allowance was available to ( i ) widows and widowers whose spouse died on or after 9 April 2001 and who were under pensionable age (60 for women and 65 for men) at the time of the spouse's death, and (ii) widowers whose wife died before 9 April 2001, who had not remarried and were still under pensionable age on the that day.", "19. Section 55 replaced WP with a Bereavement Allowance for widows and widowers over the age of 45 but under pensionable age at the spouse's death, where no dependent children existed. The deceased spouse had to have satisfied the relevant contribution conditions and died on or after 9 April 2001. The Bereavement Allowance is payable for 52 weeks from the date of bereavement, but is not payable for any period after the survivor reaches pensionable age or remarries or lives with another person as husband and wife, or for any period for which the survivor was entitled to Widowed Parent's Allowance.", "20. Widows (but not widowers) whose husbands died before 9 April 2001, and who fulfilled the other conditions of entitlement, continued to be eligible for WP.", "D. Other survivors'benefits under the 1992 and 1999 Acts", "21. For details of the relevant legislative provisions, see Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 6 3475/00, 63484/00 and 63468/00, judgment of 14 November 2006, §§ 29-35 and 38-40.", "E. The House of Lords'judgment in Hooper and Others", "22. On 5 May 2005 the House of Lords delivered a unanimous judgment (cited in paragraph 15 above), in which it found, inter alia, that the difference in treatment between men and women as regards WP from 2 October 2000 (when the Human Rights Act 1998 came into force) onwards was objectively justified and involved no breach of Convention rights.", "23. Lord Hoffmann, with whom the other Law Lords agreed, observed that WP had, for reasons of administrative economy, never been means-tested, but had been paid to older widows because it was thought that, as a class, they were likely to be disadvantaged because it had been the custom for women to give up work when they got married. The same did not apply to widowers. The question was not, therefore, whether there was justification for not paying WP to men, but rather whether there was justification for not having moved faster in abolishing its payment to women. The history of WP ( set out in paragraph 15 above) demonstrated that the decision to achieve equality between men and women by levelling down survivors'benefits, subject to vested rights, was by no means easy or obvious. It was true that by 2000 the proportion of older women (50-59) who were “economically active” was 65.9% against 72.5% for men. But those figures had to be adjusted to reflect greater part-time working by women (44% as against 9%) and the concentration of women in low-paid occupations. The comparative disadvantage of women in the labour market had by no means disappeared.", "24. It was permissible under Article 14 of the Convention for States to treat groups unequally in order to correct “factual inequalities” between them, and the State enjoyed a wide margin of appreciation in determining social and economic policy. Once it was accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged, the question of the precise moment at which such special treatment was no longer justified was a matter of legislative judgment.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND/OR ARTICLE 1 OF PROTOCOL No. 1", "25. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 8 of the Convention provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 1 of Protocol No. 1 provides:", "“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. Widow's Pension", "1. The parties'arguments", "(a) The applicants", "26. The applicants argued that their complaints fell within the ambit of both Article 8 and Article 1 of Protocol No. 1, and that Article 14 applied since they had been treated less favourably than women in an analogous situation. The difference in treatment, moreover, lacked objective and reasonable justification.", "27. The Court had repeatedly applied a strict test, requiring very weighty reasons to justify sexual discrimination, even in cases concerning inequalities in a welfare system and thus involving issues of social and economic strategy (see, for example, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I; Wessels-Bergervoet v. the Netherlands, no. 34462/97, ECHR 2002-IV; Willis v. the United Kingdom, no. 36042/97, ECHR 2002-IV). It would be retrograde and would seriously weaken the protection given to the fundamental principle of equality of treatment between the sexes were the Court now to adopt an approach allowing a broad margin of appreciation to States which maintain sex discrimination in the operation of their social security systems, and the House of Lords in Hooper had been wrong to allow such a broad margin (see paragraphs 22 -2 4 above).", "28. Even where the difference in treatment pursued the aim of positive discrimination, it would still be necessary for the State to show that the discriminatory means were reasonably necessary and proportionate to the aim pursued. The existence of “factual inequalities” between the sexes, even if proved, did not without more justify the blanket and unqualified discrimination at issue, where every widower was excluded from entitlement to the pension, and every widow who met the qualifying conditions was entitled, regardless of the individual's financial circumstances. It was fundamental to the principle of equal treatment that every individual was entitled to respect as an individual, and should not be treated as a “statistical unit” on the basis of a personal characteristic, such as race or sex.", "29. The justifications for the inequality found by the Grand Chamber to apply in Stec did not apply in the present case, since, despite the fact that there was now no significant factual difference between the working lives of men and women, the 1998 Act preserved the discriminatory treatment of widowers bereaved before 1 April 2001. Moreover, the overwhelming majority of Contracting States provided social security benefits to bereaved spouses without sex discrimination, and did so at the time the applications were lodged.", "30. It was accepted that Mr Runkee, who was in receipt of means-tested social security benefits, would not, in his current financial circumstances, have received more money had he been entitled to WP (see paragraph 10 above). However, if his circumstances were to improve and his entitlement to means-tested benefits cease, he would be less well-off than a woman in his position, who would retain the right to WP.", "(b) The Government", "31. The Government asked the Court to follow the House of Lords in Hooper and Others and its own reasoning in Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, ECHR 2006- ..., to find that the difference in treatment between men and women as regards WP was reasonably and objectively justified.", "32. They also pointed out that a woman receiving the Income Support and other benefits paid to Mr Runkee would not have been entitled to WP.", "2. The Court's assessment", "33. The Court considers that the applicants'complaints about the non-payment to them of WP fall within the scope of Article 1 of Protocol No. 1 (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2006 - ... ). Since Article 14 therefore applies, it is not necessary to decide whether the complaints also raise an issue under Article 14 taken in conjunction with Article 8 (see also Willis v. the United Kingdom, § 53, ECHR 2002-IV).", "34. The Court recalls that Article 1 of Protocol No. 1 does not include a right to acquire property. It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see the Stec and Others decision, cited above, §§ 54-55).", "35. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article. A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see the Stec and Others judgment, cited above, § 51).", "36. The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is “manifestly without reasonable foundation” ( op. cit., § 52 ).", "37. The Court notes that the history of WP, as recounted by Lord Hoffmann in the Hooper and Others judgment (see paragraph 15 above), is not disputed by the parties to the instant case. The benefit was first introduced in 1925, in recognition of the fact that older widows, as a group, faced financial hardship and inequality because of the married woman's traditional role of caring for husband and family in the home rather than earning money in the workplace. Despite the increase in women entering the workforce over the next sixty years, in 1985, when the Government proposed reforms to the social security system, it was still considered necessary by Parliament to provide support to older widows, only half of whom were in paid employment of any kind. It was not until 1998 that the Government, in a Consultation Paper, proposed the abolition of WP in view of the increasing numbers of women in employment or receiving income from an occupational pension scheme. Even then, the proposal was strongly opposed by some members of Parliament, partly on the ground that elderly widows were still disadvantaged compared with men or younger widows, and partly on the ground that WP was a contributory benefit and that it would be “a breach of faith” to deny it to widows of men who had made contributions and arranged their affairs on the assumption that it would be available. In response to these views, the draft legislation was amended to preserve the rights of women widowed before 9 April 2001 (see paragraph 20 above).", "38. It does not appear that at any stage evidence was presented to the Government or Parliament showing that older widowers without dependent children, as a group, were similarly disadvantaged and in need of special financial help, nor has any such evidence been presented to the Court.", "39. Since WP was not means-tested, it is no doubt true, as the applicants contend, that the pension has been paid to certain widows who were less in need than individual widowers who were denied it. However, means-testing can be uneconomical, and any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need (see, mutatis mutandis, Lindsay v. the United Kingdom, no. 11098/84, Commission decision of 11 November 1986, Decisions and Reports 49, p. 181).", "40. At its origin, therefore, and until its abolition in respect of women whose spouses died after 9 April 2001, WP was intended to correct “factual inequalities” between older widows, as a group, and the rest of the population. The Court considers that, in the light of all the evidence presented to it, this difference in treatment was reasonably and objectively justified (cf. Willis v. the United Kingdom, ECHR 2002-IV, where the benefits in question were designed to ease the financial hardship faced by a spouse in the immediate aftermath of bereavement and to assist the surviving spouse bringing up dependent children alone).", "41. Given the slowly evolving nature of the change in women's working lives and the impossibility of pinpointing a precise date at which older widows as a class were no longer in need of extra help – a topic debated by Parliament on several occasions during the 1980s and 1990s, whenever reform was proposed – the Court does not consider that the United Kingdom can be criticised for not having abolished WP earlier (see, mutatis mutandis, the Stec judgment, cited above, § 64). Moreover, since it was decided to bring about equality through “levelling down”, it was not unreasonable of the legislature to decide to introduce the reform slowly, by preserving the rights of women widowed before 9 April 2001 ( ibid., § 65).", "42. It follows that there has been no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in respect of the non-payment to the applicants of Widow's Pension or equivalent.", "43. In the light of this conclusion, it is not necessary for the Court to determine whether or not, given the sums he receives in means-tested benefits, Mr Runkee can claim to be directly affected by the non-payment of WP (but see Bland v. the United Kingdom (dec.), no. 52301/99, 19 February 2002).", "B. Widow's Payment", "44. Mr Runkee and Mr White complained in addition about the non-payment to them of Widow's Payment.", "45. The Court has already held that the non-payment to a widower of Widow's Payment breaches Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention (see Willis, cited above, §§ 37-43 ). The Government have not sought to argue that the difference in treatment between men and women as regards entitlement to this one-off, lump sum payment intended to assist with additional expenses in the immediate aftermath of the spouse's death, was based on any “objective and reasonable justification”, and the Court sees no reason to distinguish the present applications from Willis.", "46. Again, it is not, therefore, necessary to consider whether any issue also arises under Article 14 taken in conjunction with Article 8 ( op. cit ., § 53 ).", "47. In conclusion, there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "48. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "49. In respect of pecuniary damage Mr Runkee claimed the following amounts in pounds sterling (GBP):", "( i ) GBP 1,000 for Widow's Payment;", "(ii) simple interest at 8%, based on the current statutory rate of interest applicable in the United Kingdom, on arrears of all widow's benefits found owing to him from 1 5 March 1998 until the date of judgment;", "Mr White claimed as follows:", "( i ) GBP 1,000 for Widow's Payment;", "(ii) GBP 12,167.17 for WP from 16 March 1999 to July 2005, and continuing;", "(iii) simple interest at 8%, based on the current statutory rate of interest applicable in the United Kingdom, on arrears of all widow's benefits found owing to him from 8 March 1999 until the date of judgment.", "50. The Government accepted that they should pay GBP 1,000 to each applicant in respect of Widow's Payment, but rejected Mr White's claim for WP. They submitted that, as a matter of domestic practice, the Department of Work and Pensions applied an interest rate based on the yearly Average Retail Shares and Deposits rate supplied by the Building Societies Commission when, exceptionally, a welfare clamant had lost the use of a sum of money as a result of a departmental error. These rates varied from 4.881%, being the highest, in 1998–1999 and 2.691%, being the lowest, in 2003-2004. The Government calculated that Mr Runkee should be awarded interest of GBP 266.15 and Mr White should receive GBP 209.51, to cover the period between the refusal of each of their claims and the Government's Observations of 26 July 2005, continuing at the rate of GBP 0.09 per day until the date of judgment or payment, whichever was sooner.", "51. The Court, which has found violations in respect of the denial of Widow's Payment, but no violation because of the lack of WP, awards each applicant the principal sum of GBP 1,000.", "52. In addition, interest can be claimed from the dates on which each recoverable element of past pecuniary damage accrued (see Willis, § 69). In the present cases, since under national law at the relevant time a widow was not automatically paid the benefit, but had to claim it and to wait for the Benefits Agency to process her claim, the Court takes as the starting point for interest the date of the Benefit's Agency's letter to each applicant informing him that the claim had been refused. An award of pecuniary damages under Article 41 of the Convention is intended to put the applicant, as far as possible, in the position he would have enjoyed had the breach not occurred (see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). The interest rate applied, which is intended to compensate for loss of value of the award over time, should therefore reflect national economic conditions, such as levels of inflation and rates of interest available to investors nationally during the relevant period (see, for example, Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV, § 35; Romanchenko v. Ukraine, no. 5596/03, 22 November 2005, § 30, unpublished; Prodan v. Moldova, no. 49806/99, § 73, ECHR 2004-III (extracts)). In the light of these considerations, the Court considers that the rate proposed by the Government is the more realistic.", "53. It therefore awards EUR 2,0 25 to Mr Runkee and EUR 1,8 70 to Mr White in respect of pecuniary damage.", "B. Non-pecuniary damage", "54. The applicants did not claim non pecuniary-damage, and the Court does not award any.", "C. Costs and expenses", "55. The applicants jointly claimed GBP 21,237.63 in respect of costs and expenses, inclusive of value added tax (“VAT”).", "56. The Government submitted that it could not be shown that such costs had indeed been incurred and therefore that the claim should be dismissed in its entirety. They noted that the applicant's legal representatives were a campaigning non-governmental organisation, and that it was unlikely that the applicants would be made to pay such high fees. In any case, they submitted that the sums put forward were excessive and unreasonable. Given that the matters at issue had been extensively aired in domestic proceedings, it was doubtful whether so many hours had been needed to prepare the case and whether it had been necessary to instruct a QC for the purposes of these proceedings.", "57. According to its settled case-law, the Court will award costs and expenses in so far as these relate to the violation found and to the extent to which they have been actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Schouten and Meldrum v. the Netherlands, judgment of 9 December 1994, Series A no. 304, pp. 28-29, § 78 and Lorsé and Others v. the Netherlands, no. 52750/99, § 103, 4 February 2003). Taking into account all the circumstances, in particular that it has found no violation as regards WP, and that the issues concerning Widow's Payment were established in Willis and were not contested by the Government, it awards the applicants jointly EUR 2 ,000 for legal costs and expenses, in addition to any VAT that may be payable.", "D. Default interest", "58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points." ]

[ "2. The applicant was born in 1972 and lives in Bucharest. She was represented by S.C.A. Ionescu and Sava, a law firm in Bucharest.", "3. The Government were represented by their Agent, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The applicant’s work IN the consular section OF THE ROMANIAN embassy IN Ljubljana", "5. The applicant is a Romanian diplomat. On 1 October 2002 she started working for the Ministry of Foreign Affairs (hereinafter “the MFA”).", "6. The applicant sat a competitive examination for a four-year post as a consular officer at the Romanian embassy in Ljubljana. Following the examination, she was appointed to the post by an order of the Minister for Foreign Affairs issued on 9 February 2007. At the time, she held the diplomatic rank of third secretary. Her diplomatic posting started on 2 March 2007, and since 1 January 2006 the post had been held by diplomats sent on temporary assignments.", "7. When the applicant arrived to take up her post, the embassy’s diplomatic staff consisted of the ambassador and two junior diplomats: the applicant, who was in charge of consular duties (about 70% of her work), and another individual, whose main tasks were diplomatic and political cooperation and who had received no consular training. The diplomatic staff also included an economic officer, sent from the Ministry of the Economy.", "8. The applicant’s consular work consisted mainly in providing help to Romanian nationals who found themselves in emergency situations in Slovenia, notably in police detention, without identity papers or hospitalised.", "The first pregnancy", "9. In April 2007 the applicant married a Slovenian official. A few months later she became pregnant with their first child. In November 2007 she was absent from work for a few days because of health problems linked to her pregnancy. On 27 November her obstetrician ordered that she should have bed rest. On the next day she informed the ambassador of her medical condition. She also asked to take her annual leave in the period from December to January 2008.", "10. On 6 December 2007 the ambassador sent an internal report on the applicant’s absence from work to the MFA, accompanied by a note written in the following terms:", "“Please find attached a communication from the embassy in Ljubljana which presents the act of insubordination [ actul de indisciplină ] committed by Mrs Oana Napotnik ...”", "11. The ambassador described in detail the applicant’s absence from work and asked for a replacement to be sent for the month of December, when requests for consular assistance were high. As no replacement was sent from the MFA, the consular section was closed during the applicant’s absence and requests for assistance were redirected to the embassies in Zagreb, Vienna or Budapest. The applicant resumed work in February 2008.", "12. The applicant returned to work during her leave, on 14 and 17 December 2007, in order to deal with urgent consular matters.", "13. In December 2007 the applicant was promoted to second secretary, upon being recommended for this position by her superiors.", "14. The applicant, who gave birth to her child on 16 June 2008, was on maternity leave from 2 June to 19 October 2008. She then took annual leave until 5 December 2008.", "15. The consular section of the embassy was closed between 2 and 15 June 2008, when a replacement was found for the applicant; that person was on a temporary assignment.", "16. Between 17 and 19 July 2008, after the start of the applicant’s maternity leave, the MFA organised an audit of the embassy in Ljubljana. According to the ensuing report, deficiencies were found in the consular activity at the embassy. In particular, it was found that consular requests and official documents had been improperly recorded in the embassy records. Some original documents issued by the consular section had not been archived or had simply been lost. Some documents had been recorded on the wrong date or had not been signed by the relevant parties. The audit team made recommendations, without proposing sanctions. The relevant part of the report read as follows:", "“Several deficiencies have been identified in the consular activity, despite the low volume of work. One of the reasons is linked to the parameters of Mrs Oana Napotnik’s professional activity, including the fact that during the first half of 2008, owing to her pregnancy, she was absent from work for long periods of time.”", "17. On 27 February 2009 the applicant sent an answer to the MFA, pointing out in particular that the audit team had generalised some particular situations where errors had been made, and that she had been made responsible for the conduct of the diplomats who had preceded her and those who had replaced her during her absence. She also found it regrettable that she had not been invited to talk to the inspectors while the audit team had been in Ljubljana.", "The second pregnancy", "18. The applicant returned to work on 5 December 2008. The ambassador considered that, as the applicant had worked very little that year, it would be more appropriate to postpone her annual work performance evaluation by six months. On 14 January 2009 the ambassador informed the MFA of that decision.", "19. On 19 January 2009 the applicant informed the ambassador that she was pregnant and was due to give birth in the second half of July 2009.", "20. On the same day the ambassador concluded the applicant’s annual performance evaluation for 2008. The overall assessment read as follows:", "“Although the overall assessment is that ‘the performance met the job requirements’, in Mrs Oana Napotnik’s case, bearing in mind the short period of time which she spent working in 2008, because of her maternity leave and because of frequent absences due to medical appointments from February to June, these circumstances mean that she is not best suited for consular activity, which has a certain specificity, particularly since Mrs Napotnik is the head of the consular section.”", "21. The applicant was informed of this report on 23 January 2009. She disagreed with the assessment.", "Termination of the applicant’s posting", "22. On 20 January 2009 the ambassador discussed the applicant’s situation with his superiors. In an internal note for the attention of the Minister for Foreign Affairs, the ambassador reiterated that the applicant had been repeatedly absent, owing to her first pregnancy, and it was to be expected that she would be absent again in connection with the new pregnancy. It was concluded that she was of little use to the diplomatic mission in Ljubljana. She created additional costs for the MFA because of the need to replace her on a temporary basis (notably costs with regard to lodging the replacement diplomat in Ljubljana). The note also reiterated that the audit team had found “deficiencies in the applicant’s consular activity”. It was proposed that the applicant’s posting be terminated.", "23. In a separate communication sent to the MFA on 20 January 2009, the ambassador reiterated that the applicant’s prolonged and repeated absences due to her pregnancies had meant that she was of little use to the diplomatic mission in Ljubljana. The ambassador added that she represented an additional security risk because of her marriage to a Slovenian national: the applicant’s husband drove the applicant’s car, which was registered with diplomatic plates.", "24. By a ministerial order of 20 January 2009, the applicant’s posting to Ljubljana was terminated. The next day the embassy in Ljubljana was given notice of the order. The applicant was informed that her mission had been terminated and that she was expected to return to the Bucharest office on 14 February 2009. She immediately requested parental leave (see Article 27 of Law no. 269/2003, quoted in paragraph 33 below).", "25. At the applicant’s request, her contract of employment was suspended by orders of the Minister for Foreign Affairs, firstly in respect of her parental leave (from 14 February 2009 to 15 May 2010 for the first child, and from 15 May 2010 to 22 July 2011 for the second child), and then in order to allow her to accompany her husband on his permanent diplomatic posting abroad (lasting four years, starting from 22 July 2011). She was not paid a salary by her employer while her contract was suspended.", "26. On 1 September 2015 the applicant resumed her work at the MFA. On 20 September 2016 she was promoted to first secretary. On the date of the last information received from the parties in this regard (the Government’s observations of 14 June 2019) she was still working for the MFA, in Bucharest.", "Civil action against tHE termination of the APPLICANT’S diplomatic posting in Slovenia", "27. On 28 September 2009 the applicant lodged a civil action against the MFA concerning the termination of her posting abroad. She complained mainly that the reason for the act in question had been her pregnancy. In her view, that reason was discriminatory and thus unlawful.", "28. On 21 March 2012 the Bucharest County Court dismissed the action. It reiterated that the Minister for Foreign Affairs had the discretion to organise foreign representation and terminate postings abroad whenever necessary, on serious grounds. The court concluded that the applicant’s posting had not been terminated on discriminatory grounds. The relevant parts of its findings read as follows:", "“The court considers that the termination [of the applicant’s posting was] allowed in the specific sphere of diplomatic activity and [did] not constitute a disciplinary measure ... it is within the discretion of [the MFA] to decide, in order to ensure the renewal [of the diplomatic corps], when to begin a diplomat’s new posting and when to terminate [the postings] of others, in order to ensure and maintain the functional capacity of diplomatic missions.", "...", "In so far as discrimination is concerned, the court notes that decisions to terminate a posting are taken by [the MFA] with regard to all diplomats, irrespective of their sex; when [the applicant] argues that her posting should not have been terminated on these grounds, [she] is using her pregnancy in order to obtain preferential treatment.”", "29. The applicant lodged an appeal with the Bucharest Court of Appeal. She maintained her arguments that her diplomatic posting had been terminated on discriminatory grounds related to her pregnancy.", "30. In a final decision of 8 November 2012, the Court of Appeal dismissed the appeal and upheld the decision rendered by the County Court on 21 March 2012 (see paragraph 28 above). In addition, it found as follows:", "“The Labour Code does not limit an employer’s right to organise the activity of its pregnant employees, the sole prohibition being that their contract of employment may not be terminated ...", "... [the applicant] did not prove that she had been discriminated against by [the MFA], as the decisions to terminate her posting had been taken by the MFA lawfully and within the scope of its discretion, with a view to ensuring the functioning of the MFA; such a measure can be taken in respect of all employees of the MFA, irrespective of sex or pregnancy.”" ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "DOMESTIC LAW", "31. The relevant provisions of the Equal Opportunity Act (Law no. 202/2002) read as follows:", "Article 6", "“(5) The following actions do not constitute discrimination:", "(a) special measures provided for by law for the protection of maternity, birth, the postnatal period, breastfeeding and child-rearing;", "(b) positive actions for the protection of certain categories of women or men;", "...”", "Article 10", "“(1) Maternity cannot constitute grounds for discrimination.", "(2) Any less favourable treatment of a woman in connection with pregnancy or maternity leave constitutes discrimination under the present law.”", "32. The relevant provisions of Government Emergency Ordinance no. 96/2003 on the protection of maternity in the workplace read as follows:", "Article 2", "“...", "(g) the duration of mandatory postnatal leave is 42 days, which the worker must take after giving birth; it is included in maternity leave, which has an overall duration of 126 days for all pregnant workers, in accordance with the law; ...”", "Article 21", "“(1) An employer shall not terminate a contract of employment in the following cases:", "(a) [in the case] of a [pregnant worker], for reasons directly connected to her condition;", "(b) [in the case] of a worker who is on leave owing to risks connected to maternity;", "(c) [in the case] of a worker who is on maternity leave;", "...”", "33. At the time of the facts of the present case, the relevant provisions of Law no. 269/2003 on the Statute of the Diplomatic and Consular Corps (“Law no. 269/2003”) read as follows:", "Article 3", "“(1) The general provisions of labour law and those of the Statute of Civil Servants shall complement the provisions of the Statute of the Romanian Diplomatic and Consular Corps, unless otherwise stated in the present law.", "(2) While on posting[s] abroad, members of the diplomatic and consular corps shall also be subject to the provisions of the international treaties which Romania has entered into, and to other rules of international law.”", "Article 9", "“(1) Promotion within the diplomatic and consular ranks shall be on the basis of time spent in service ..., the evaluation of professional activity, and qualifications obtained from the Diplomatic Academy or other institutes for continuous learning ...”", "Article 25", "“(1) During diplomatic and consular postings abroad, members of the Romanian diplomatic and consular corps, as well as the members of their families who accompany them, shall have the benefit of medical assistance, covered by the mandatory health insurance organised by the MFA ...”", "Article 27", "“(1) Members of the Romanian diplomatic and consular corps shall have the right to annual leave, study leave, unpaid leave, medical leave, maternity leave, [and] parental leave until a child is two years old ...”", "Article 35", "“(1) Members of the diplomatic and consular corps ... shall be sent on permanent posting[s] abroad following a competitive examination ...", "(5) The length of a diplomatic posting abroad shall, in principle, be four years, and three years in countries with a difficult climate.", "...", "(15) Vacant diplomatic and consular posts abroad which must be filled urgently ... shall be published within the central administration of [the MFA] ... after being approved by the Minister for Foreign Affairs. The Minister for Foreign Affairs shall fill these posts on a temporary basis for a period of up to 13 months, with the possibility of one extension for up to one year.”", "Article 48", "“(1) In order to ensure the necessary specialist staff from the [MFA], secondments and temporary employment shall be possible for the duration of a permanent diplomatic posting ...”", "DOMESTIC PRACTICE", "34. On several occasions the National Council for Combating Discrimination (“the NCCD”) has been asked to verify allegations of discrimination against pregnant workers. The NCCD found the following situations discriminatory:", "– the refusal to pay a pregnant worker’s salary for two months, with the intention of making her resign (decision of 18 January 2012);", "– the decision to retain all workers except pregnant workers in their posts, following the reorganisation of an employer company (decision of 6 February 2013);", "– a change in a claimant’s work situation during her short absence from work due to complications caused by her pregnancy (decision of 30 April 2014);", "– the summary dismissal of a visibly pregnant worker, despite the employer’s arguments that the dismissal was related to the claimant’s performance (decision of 25 January 2017);", "– a change of working conditions during or after a person’s return from parental leave (decisions of 7 February 2013, 16 October 2013, 4 September 2013 and 18 November 2015).", "35. On the other hand, the NCCD considered that the fact that an employer had offered less complex tasks to a claimant during her pregnancy did not constitute discrimination, as that had been justified by the fact that her presence at work would be limited during her pregnancy (decision of 14 September 2016).", "36. The Bucharest Court of Appeal has identified the following situations as being discriminatory on grounds of pregnancy:", "– offering a pregnant worker a temporary contract of employment instead of a permanent one (final decision of 14 December 2016);", "– giving a worker notice of her dismissal as soon as she had informed her employer of her pregnancy (final decisions of 25 June 2012 and 6 November 2012);", "– dismissing a pregnant worker at the end of the probationary period of an open-ended contract (final decision of 13 June 2014).", "37. The Bucharest County Court examined an action seeking the annulment of a ministerial order whereby the MFA had decided to recall Mr X from his four-year posting at the embassy in Geneva before the end of the relevant term and terminate his contract of employment. The claimant had been hired for a specific position at the embassy in Geneva, but following a restructuring of the diplomatic activities, those tasks had been transferred to another embassy, in Moscow. The County Court dismissed the action on the grounds that the reason for terminating the posting had been legitimate.", "COUNCIL OF EUROPE MATERIALRecommendation No. R(85)2 of the Committee of Ministers", "Recommendation No. R(85)2 of the Committee of Ministers", "Recommendation No. R(85)2 of the Committee of Ministers", "38. The relevant provisions of Recommendation No. R(85)2 on legal protection against sex discrimination, adopted by the Committee of Ministers of the Council of Europe on 5 February 1985 at the 380th meeting of the Ministers’ Deputies, read as follows:", "“... Recognising the necessity to ensure legal and de facto equality between men and women, in particular by improving the situation of women and by taking into account the specific needs of certain categories of people;", "...", "Principles", "I. Promotion of equality between the sexes by legislation", "In order to promote equality between the sexes, legislation should aim at the following objectives:", "1. In the field of employment, men and women should have equal rights with regard to opportunities for employment and conditions of employment in all fields and, in particular, should be entitled to:", "a. equal right of access to work;", "b. equal conditions of work;", "c. equal opportunities for training;", "d. equal pay for work of equal value;", "e. equal opportunities for advancement.", "...", "III. Special temporary measures (positive action)", "States should, in those areas where inequalities exist, give consideration to the adoption of special temporary measures designed to accelerate the realisation of de facto equality between men and women, where there are no obstacles of a constitutional nature, in particular by:", "a. making employers aware of the desirability of having as an objective the achievement of equality between the sexes;", "...”", "European Social Charter", "39. The respondent State ratified the European Social Charter (revised) in 1999, and considered itself bound by that charter. The relevant provisions read as follows:", "“...", "Part I", "The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised:", "...", "8. Employed women, in case of maternity, have the right to a special protection.", "...", "20. All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex.", "...", "27. All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities.", "...", "Part II", "The Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs.", "...", "Article 8 – The right of employed women to protection of maternity", "With a view to ensuring the effective exercise of the right of employed women to the protection of maternity, the Parties undertake:", "1. to provide either by paid leave, by adequate social security benefits or by benefits from public funds for employed women to take leave before and after childbirth up to a total of at least fourteen weeks;", "2. to consider it as unlawful for an employer to give a woman notice of dismissal during the period from the time she notifies her employer that she is pregnant until the end of her maternity leave, or to give her notice of dismissal at such a time that the notice would expire during such a period;", "3. to provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose;", "4. to regulate the employment in night work of pregnant women, women who have recently given birth and women nursing their infants;", "...", "Article 20 – The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex", "With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields:", "a access to employment, protection against dismissal and occupational reintegration;", "b vocational guidance, training, retraining and rehabilitation;", "c terms of employment and working conditions, including remuneration;", "d career development, including promotion.", "...", "Article 27 – The right of workers with family responsibilities to equal opportunities and equal treatment", "With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake:", "...", "2. to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice;", "...”", "LAW AND PRACTICE OF THE EUROPEAN UNIONDirectives of the Council of the European Union", "Directives of the Council of the European Union", "Directives of the Council of the European Union", "40. The matter of equality between men and women, and special protection for pregnancy, has been tackled in several directives adopted by the Council of the European Union, in particular: Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding; and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (which repealed Directive 76/207/EEC).", "41. The relevant provisions of Directive 2006/54/EC read as follows:", "“Whereas:", "...", "23. It is clear from the case-law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Such treatment should therefore be expressly covered by this Directive.", "24. The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman’s biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be without prejudice to Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. This Directive should further be without prejudice to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC.", "25. For reasons of clarity, it is also appropriate to make express provision for the protection of the employment rights of women on maternity leave and in particular their right to return to the same or an equivalent post, to suffer no detriment in their terms and conditions as a result of taking such leave and to benefit from any improvement in working conditions to which they would have been entitled during their absence.", "...”", "Article 15 – Return from maternity leave", "“A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.”", "42. The relevant provisions of Directive 92/85 read as follows:", "“Whereas Article 15 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work provides that particularly sensitive risk groups must be protected against the dangers which specifically affect them;", "Whereas pregnant workers, workers who have recently given birth or who are breastfeeding must be considered a specific risk group in many respects, and measures must be taken with regard to their safety and health;", "Whereas the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding should not treat women on the labour market unfavourably nor work to the detriment of directives concerning equal treatment for men and women;", "...", "Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; whereas provision should be made for such dismissal to be prohibited;", "...", "Whereas, moreover, provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and or entitlement to an adequate allowance;", "...”", "Article 10", "Prohibition of dismissal", "“In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that:", "1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent;", "2. if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing;", "3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.”", "Case-law of the Court of Justice of the European Union", "43. In its case-law, the Court of Justice of the European Union (hereinafter “the CJEU”) established that as only women could become pregnant, a refusal to employ a pregnant woman based on her pregnancy or her maternity, or the dismissal of a pregnant woman on such grounds, amounted to direct discrimination on grounds of sex, which could not be justified by any other interest.", "44. In the Dekker judgment (8 November 1990, C ‑ 177/88, EU:C:1990:383), the CJEU ruled that a refusal to employ a woman who met the conditions for a post because she was pregnant constituted direct discrimination on grounds of sex. The applicant in the Dekker case applied for the post, was considered the most suitable candidate, but ultimately was not hired because she was pregnant. The employer argued that, in accordance with the law, she was not eligible to be paid pregnancy benefits by the relevant insurer, and thus the employer would have to pay those benefits during her maternity leave. As a result, the employer would be unable to afford to employ a replacement during her absence, and would thus be short-staffed. The CJEU found as follows.", "“12 In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave.”", "45. In the Hertz judgment (8 November 1990, C ‑ 179/88, EU:C:1990:384), the CJEU ruled that dismissals which were the result of absences due to an illness not attributable to pregnancy or confinement did not breach the Directive on equal treatment. In that case, the applicant, who had been absent owing to illness during her pregnancy, became ill again after the end of her maternity leave. She was dismissed because of her absences. The relevant parts of that judgment read as follows:", "“13 It follows from the provisions of the Directive quoted above that the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex, as is a refusal to appoint a pregnant woman (see judgment of today’s date in Case C ‑ 177/88 Dekker v VJM-Centrum [1990] ECR I ‑ 3941).", "14 On the other hand, the dismissal of a female worker on account of repeated periods of sick leave which are not attributable to pregnancy or confinement does not constitute direct discrimination on grounds of sex, inasmuch as such periods of sick leave would lead to the dismissal of a male worker in the same circumstances.", "15 The Directive does not envisage the case of an illness attributable to pregnancy or confinement. It does, however, admit of national provisions guaranteeing women specific rights on account of pregnancy and maternity, such as maternity leave. During the maternity leave accorded to her pursuant to national law, a woman is accordingly protected against dismissal due to absence. It is for every Member State to fix periods of maternity leave in such a way as to enable female workers to absent themselves during the period in which the disorders inherent in pregnancy and confinement occur.", "16 In the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness. Such a pathological condition is therefore covered by the general rules applicable in the event of illness.”", "46. The CJEU further held that any unfavourable treatment directly or indirectly connected to pregnancy or maternity constituted direct sex discrimination.", "In the Webb judgment (14 July 1994, C-32/93, EU:C:1994:300), the CJEU found that the situation of a pregnant woman could not be compared with that of a man who was absent because of illness. The applicant in the Webb case found out that she was pregnant a few weeks after being hired to replace a worker who had herself become pregnant. She was dismissed as soon as the employer found out about her pregnancy. The CJEU ruled as follows:", "“24 First, in response to the House of Lords’ inquiry, there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons.", "25 As Mrs Webb rightly argues, pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex. Moreover, in the Hertz judgment, cited above, the Court drew a clear distinction between pregnancy and illness, even where the illness is attributable to pregnancy but manifests itself after the maternity leave. As the Court pointed out (in paragraph 16), there is no reason to distinguish such an illness from any other illness.", "26 Furthermore, contrary to the submission of the United Kingdom, dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the directive.", "27 In circumstances such as those of Mrs Webb, termination of a contract for an indefinite period on grounds of the woman’s pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged ...”", "47. In the Hofmann judgment (12 July 1984, C ‑ 184/83, EU:C:1984:273), which concerned paternity allowance, the CJEU found as follows:", "“25 It should further be added, with particular reference to paragraph (3), that, by reserving to member states the right to retain, or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, the directive recognizes the legitimacy, in terms of the principle of equal treatment, of protecting a woman’s needs in two respects. First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.”", "48. In the Tele Danmark judgment (4 October 2001, C-109/00, EU:C:2001:513), the CJEU extended the protection for absence due to pregnancy to temporary contracts. The applicant was recruited for a six ‑ month fixed period. She failed to inform the employer that she was pregnant, even though she was aware of this when the contract was concluded. Because of her pregnancy, she was unable to work during a substantial part of the term of that contract. The relevant parts of the judgment read as follows:", "“29. In paragraph 26 of Webb, the Court also held that, while the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during the period corresponding to maternity leave is essential to the proper functioning of the undertaking in which she is employed. A contrary interpretation would render ineffective the provisions of Directive 76/207.", "30. Such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term.", "31. Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy.", "32. Moreover, the duration of an employment relationship is a particularly uncertain element of the relationship in that, even if the worker is recruited under a fixed term contract, such a relationship may be for a longer or shorter period, and is moreover liable to be renewed or extended.”", "In that judgment, the CJEU further found that the size of an employer was irrelevant for that matter:", "“37. It suffices to observe that Directives 76/207 and 92/85 do not distinguish, as regards the scope of the prohibitions they lay down and the rights they guarantee, according to the size of the undertaking concerned.”", "INTERNATIONAL MATERIAL", "49. The relevant parts of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW”), which was ratified by the respondent State on 7 January 1982, read as follows:", "Article 4", "“1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.", "2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.”", "Article 5", "“States Parties shall take all appropriate measures:", "(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;", "(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.”", "Article 11", "“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:", "(a) The right to work as an inalienable right of all human beings;", "(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;", "(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;", "(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;", "(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;", "(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.", "2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:", "(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;", "(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;", "(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;", "(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.", "3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.”", "Article 12", "“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.", "2. Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12 TO THE CONVENTION", "Scope of the case", "50. In her initial application to the Court, the applicant complained that she had been discriminated against at work, in so far as her posting at the Romanian embassy in Ljubljana had been terminated because of her pregnancy without any valid reason being presented to her. She relied on Article 1 of Protocol No. 12 to the Convention.", "51. In her submissions in reply to the Government’s observations, the applicant further complained of violations of Articles 6 and 8 of the Convention as a result of the same facts which she had brought to the Court’s attention in her initial application.", "52. Having regard to the substance of the applicant’s complaints, and regardless of whether the above-mentioned complaints and/or arguments raised under Articles 6 and 8 of the Convention fall to be examined within the context of the present application, the Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the application from the standpoint of Article 1 of Protocol No. 12 to the Convention alone.", "That provision reads as follows:", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "AdmissibilityThe Court’s jurisdiction ratione materiae", "The Court’s jurisdiction ratione materiae", "The Court’s jurisdiction ratione materiae", "53. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case, and the issue of the applicability of Article 1 of Protocol No. 12 falls to be examined at the admissibility stage.", "54. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019).", "55. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection to not only “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010). According to the Explanatory Report to Protocol No. 12, the scope of protection of Article 1 of that Protocol concerns four categories of cases, in particular where a person is discriminated against:", "“i. in the enjoyment of any right specifically granted to an individual under national law;", "ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;", "iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies);", "iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).”", "The Explanatory Report further clarifies the following:", "“... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.”", "56. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicant’s complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others, cited above, § 105).", "57. In this connection, the Court notes that the domestic law regulates the organisation and duration of diplomatic postings abroad (see paragraph 33 above) but also grants, in accordance with the domestic courts’ interpretation, a discretionary power to the MFA to decide on the early termination of a diplomatic posting abroad (see paragraph 28 above). While contesting the manner in which this discretion had been exercised, the applicant did not contest its existence (see paragraph 62 below). Consequently, the Court cannot but conclude that the present case falls at least under category iii. of potential discrimination envisaged by the Explanatory Report (see paragraph 55 above).", "58. It follows that Article 1 of Protocol No. 12 applies to the facts of the present case.", "Other grounds for inadmissibility", "59. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "60. The applicant averred that the main reason for the early termination of her posting abroad had been her pregnancy. Although her work performance had been assessed as satisfactory by the ambassador (see paragraph 20 above), her direct superior, the ambassador had requested that her posting be terminated as soon as she had announced her second pregnancy. In her view, this sequence of events indicated with certainty that her pregnancy had been the reason for the early termination of her diplomatic posting. She further objected to the remarks made by the ambassador concerning the alleged security risk posed by her husband driving her diplomatic car (see paragraph 23 above).", "61. The applicant further averred that the work at the embassy had represented no danger for her pregnancy. She pointed out that she had been able to carry out her tasks without any risk while she had been pregnant the first time. Consequently, it could not be argued that in recalling her to Bucharest, the MFA had acted with a view to protecting her pregnancy. Moreover, the MFA had not demonstrated how her pregnancy would have been better protected in the office in Bucharest than in the office in Ljubljana. Moreover, the applicant argued that she had been recalled to Bucharest as a consequence of her exercising her lawful right to protection of pregnancy.", "62. She considered that in terminating her posting abroad, the MFA had used its discretion in an improper and unreasonable manner. The authorities could not provide any reasons for the measure. Moreover, the Government could not prove that other diplomats who had received good evaluations from their superiors had been recalled from their postings with the explanation that the MFA no longer needed them in those posts.", "63. She argued that the dysfunctionalities of the consular section of the embassy had not been caused by her pregnancy, but by the MFA’s deficient organisation as regards the replacement of diplomats who, during their posting, found themselves objectively and temporarily unable to exercise their duties as a result of unpredictable events such as medical leave.", "(b) The Government", "64. The Government pointed out that the Romanian embassy in Ljubljana was served by a very small team of diplomats. Consequently, when the applicant had accepted the relevant position she should have been aware that she would be expected to work on a more or less permanent basis and provide emergency consular assistance to Romanian nationals who needed it. While those circumstances were not to be interpreted as placing a restraint on the applicant’s choices in her private life, they constituted a presumption that, on a professional level, she would understand that her long, repeated and unpredictable absences would affect the functioning of the embassy. Thus, she should have accepted the early termination of her posting.", "65. While accepting that the applicant’s pregnancy had played a role in the decision to terminate her posting in Slovenia, the Government argued that the actual reason behind that decision had been the need to ensure the proper functioning of the consular activity. The decision had not been a disciplinary measure against the applicant, who had continued to be employed by the MFA and to advance unhindered in her career (see paragraph 26 above).", "66. Consequently, the Government argued that the applicant had not been subjected to a difference in treatment in the exercise of her duties. Given the particular circumstances of her work at the embassy, where she had been the sole consular officer, the same decision would have been taken regardless of the reasons behind her long and unpredictable absences from work.", "67. In addition, the decision to terminate the applicant’s posting had pursued a legitimate aim, notably ensuring the protection of the rights and freedoms of Romanian nationals abroad.", "68. Lastly, the Government argued that the domestic courts had carefully examined the applicant’s claims and had balanced her rights and interests against those of the Romanian nationals in need of consular assistance in Slovenia, and the obligations of the MFA to ensure the functional stability of the embassy.", "The Court’s assessment", "(a) The general principles", "69. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci, cited above, § 55).", "70. It can be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12.", "71. In this vein the Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see Molla Sali v. Greece [GC], no. 20452/14, §§ 133 and 135, 19 December 2018).", "72. The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017).", "73. Furthermore, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them. Indeed, the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI; and Guberina v. Croatia, no. 23682/13, § 70, 22 March 2016). The prohibition deriving from Article 14 will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different (see J.D. and A v. the United Kingdom, nos. 32949/17 and 34614/17, § 84, 24 October 2019, with further references, in particular Thlimmenos, cited above, § 44). In this context, relevance is measured in relation to what is at stake, whereas a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in the light of the ground of discrimination invoked (see J.D. and A v. the United Kingdom, cited above, § 85).", "74. The Court has acknowledged in its case-law, albeit indirectly, the need for the protection of pregnancy and motherhood (see, mutatis mutandis, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 82, 24 January 2017; Konstantin Markin v. Russia [GC], no. 30078/06, § 132, ECHR 2012; Alexandru Enache v. Romania, no. 16986/12, §§ 68 and 76-77, 3 October 2017; and Petrovic v. Austria, 27 March 1998, § 36, Reports of Judgments and Decisions 1998 ‑ II).", "75. The Court has also held that the advancement of the equality of the sexes is a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference in treatment on the grounds of sex could be regarded as being compatible with the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, and Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, § 46, 25 July 2017). Consequently, where a difference in treatment is based on sex, the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require that the measure chosen should in general be suited to the fulfilment of the aim pursued, but it must also be shown that it was necessary in the circumstances (see Emel Boyraz v. Turkey, no. 61960/08, § 51, 2 December 2014).", "(b) Application of those principles to the facts of the present case", "76. Turning to the facts of the present case, the Court notes that it was considered that the applicant would be unable to carry out her work because of absences for medical appointments and maternity leave (see paragraphs 20, 22 and 23 above). The decision to recall her to Bucharest was taken as soon as she had announced her second pregnancy (see paragraphs 19 and 24 above). In their submissions, the Government also accepted that the applicant’s condition had played a role in the decision to terminate her diplomatic assignment (see paragraph 65 above). Consequently, the Court considers it established that the applicant experienced such treatment mainly because of her pregnancy.", "77. The Court observes that only women can be treated differently on grounds of pregnancy, and for this reason such a difference in treatment will amount to direct discrimination on grounds of sex if it is not justified. On this point, the Court cannot but note that a similar approach has also been taken by the CJEU in its case-law (see paragraphs 44 and 46 above), and that the approach is consistent with domestic law (see paragraph 31 above) and practice (see paragraphs 34 ‑ 36 above).", "78. Having established that the applicant was treated differently on grounds of sex, the Court must determine whether the reasons put forward by the authorities – namely the MFA, the domestic courts and the Government – to justify the treatment applied to the applicant were relevant and sufficient, notwithstanding the narrow margin of appreciation afforded to States in cases such as the present one (see paragraph 75 above).", "79. The Government argued that the decision to recall the applicant from her posting abroad had pursued the legitimate aim of the protection of the rights of others, notably Romanian nationals in need of consular assistance in Slovenia (see paragraphs 67-68 above). The Court accepts this assertion. It must then be established whether the measure was proportionate to this aim.", "80. In this connection, it is to be noted that the domestic authorities and the Government considered that the early termination of the applicant’s posting abroad had been justified by the fact that her absence would have jeopardised the functional capacity of the embassy’s consular section (see paragraphs 22, 23, 28, 30 and 68 above). The Court observes that during the applicant’s absence from the office, consular services were suspended and requests for assistance were redirected to embassies in neighbouring countries (see paragraphs 11 and 15 above). It is thus clear that, bearing in mind the nature of her work and the urgency of the requests she was called upon to deal with (see paragraph 8 above), the applicant’s absence from the office seriously affected consular activity in the embassy.", "81. The Court also notes that domestic law does not prevent as such the early termination of a diplomatic posting abroad (see paragraph 33 above), a fact also affirmed by the domestic courts (see paragraphs 28 and 30 above and, mutatis mutandis, paragraph 37 above). In addition, domestic law allows an employer to organise the activity of pregnant employees, the sole prohibition being that their contract of employment may not be terminated (see paragraph 30 above).", "82. In this vein the Court notes that although her working conditions changed because of the early termination of her posting abroad, the applicant was not dismissed from her post as a diplomat in the MFA (see, in contrast, the case-law of the CJEU, quoted in paragraphs 43 to 48 above). That change in circumstances cannot be equated with a loss of employment (see also, for reference, the domestic case-law referred to in paragraph 35 above).", "83. The Court therefore considers it established that the consequences for the applicant of the early termination of her posting abroad were not of the same nature as those expressly prohibited by the domestic equal opportunity laws (see paragraphs 31-32 above) and the State’s international commitments in the field of protection of pregnancy and maternity (see paragraphs 39-42 and 49 above).", "84. Furthermore, despite her extended absence owing to maternity and parental leave, the applicant continued to be promoted by her employer, first in December 2007, while she was absent during her first pregnancy (see paragraph 13 above), and again in September 2016, about a year after her return to work (see paragraph 26 above). Consequently, it appears that she did not suffer any significant long-term setbacks in her diplomatic career.", "85. Lastly, it is to be noted that the domestic courts expressly reiterated that the decision to terminate the applicant’s posting had not been a disciplinary measure (see paragraph 28 above). The Court has no reason to question that finding. It thus concludes that while the decision was motivated by the applicant’s pregnancy, it was not intended to put her in an unfavourable position.", "86. In the light of the above findings, the Court considers it established that the early termination of the applicant’s diplomatic posting abroad was necessary for ensuring and maintaining the functional capacity of the diplomatic mission, and ultimately the protection of the rights of others. Notwithstanding the narrow margin of appreciation afforded to them, the domestic authorities provided relevant and sufficient reasons to justify the necessity of the measure.", "87. There has accordingly been no breach of Article 1 of Protocol No. 12 to the Convention." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "11. The applicant, a British citizen born in 1942, lives at Tunbridge Wells in England.", "12. At birth the applicant possessed all the physical and biological characteristics of a child of the female sex, and was consequently recorded in the register of births as a female, under the name Brenda Margaret Rees. However, already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance. In 1970, after learning that the transsexual state was a medically recognised condition, she sought treatment. She was prescribed methyl testosterone (a hormonal treatment) and started to develop secondary male characteristics.", "13. In September 1971, the applicant - who will henceforth be referred to in the masculine - changed his name to Brendan Mark Rees and subsequently, in September 1977, to Mark Nicholas Alban Rees. He has been living as a male ever since. After the change of name, the applicant requested and received a new passport containing his new names. The prefix \"Mr.\" was, however, at that time denied to him.", "14. Surgical treatment for physical sexual conversion began in May 1974 with a bilateral masectomy and led to the removal of feminine external characteristics. The costs of the medical treatment, including the surgical procedures, were borne by the National Health Service.", "15. The applicant made several unsuccessful efforts from 1973 onwards to persuade Members of Parliament to introduce a Private Member ’ s Bill to resolve the problems of transsexuals. Representations were also made by him, and by a number of Members of Parliament on his behalf, to the Registrar General to secure the alteration of his birth certificate to show his sex as male, but to no avail.", "16. On 10 November 1980 his solicitor wrote to the Registrar General making a formal request under Section 29(3) of the Births and Deaths Registration Act 1953, on the ground that there had been \"a mistake in completing the Register\". In support of his request, the applicant submitted a medical report by Dr. C.N. Armstrong. The report stated that, in Dr. Armstrong ’ s opinion, of the four criteria of sex - namely chromosomal sex, gonadal sex, apparent sex (external genitalia and body form) and psychological sex, the last was the most important as it determined the individual ’ s social activities and role in adult life, and it was also, in his view, pre-determined at birth, though not evident until later in life. Dr. Armstrong considered that as the applicant ’ s psychological sex was male, he should be assigned male.", "On 25 November the Registrar General refused the application to alter the Register. He stated that the report on the applicant ’ s psychological sex was not decisive and that, \"in the absence of any medical report on the other agreed criteria (chromosomal sex, gonadal sex and apparent sex)\", he was \"unable to consider whether an error (had been) made at birth registration in that the child was not of the sex recorded\". No further evidence in support of the applicant ’ s request was subsequently submitted.", "17. The applicant considers himself a man and is socially accepted as such. Except for the birth certificate, all official documents today refer to him by his new name and the prefix \"Mr.\", where such prefix is used. The prefix was added to his name in his passport in 1984." ]

[ "II. DOMESTIC LAW AND PRACTICE", "A. Medical treatment", "18. In the United Kingdom sexual reassignment operations are permitted without legal formalities. The operations and treatment may, as in the case of Mr. Rees, be carried out under the National Health Service.", "B. Change of name", "19. Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities (see, inter alia, Halsbury ’ s Laws of England, 4th ed., vol. 35, para. 1176). For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes, as did Mr. Rees, a declaration in the form of a \"deed poll\" which may be enrolled with the Central Office of the Supreme Court.", "The new names are valid for purposes of legal identification (see Halsbury ’ s Laws of England, loc. cit., para. 1174) and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll.", "C. Identity documents", "20. Civil status certificates or equivalent current identity documents are not in use or required in the United Kingdom. Where some form of identification is needed, this is normally met by the production of a driving licence or a passport. These and other identity documents may, according to the prevailing practice, be issued in the adopted names of the person in question with a minimum of formality. In the case of transsexuals, the documents are also issued so as to be in all respects consistent with the new identity. Thus, the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix \"Mr.\", \"Mrs.\", \"Ms.\" or \"Miss\", as appropriate, before his or her adopted names.", "D. The Register of Births", "21. The system of civil registration of births, deaths and marriages was established by statute in England and Wales in 1837. Registration of births is at present governed by the Births and Deaths Registration Act 1953 (\"the 1953 Act\"). The entry into force of this Act entailed no material change to the law in force in 1942, the date of the applicant ’ s birth. The 1953 Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. The particulars to be entered are prescribed in regulations made under the 1953 Act.", "A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register. A certificate of the latter kind, known as a \"short certificate of birth\", is in a form prescribed and contains such particulars as are prescribed by regulations made under the 1953 Act. The particulars so prescribed are the name and surname, sex, date of birth and place of birth of the individual.", "An entry in a birth register and the certificate derived therefrom are records of facts at the time of the birth. Thus, in England and Wales the birth certificate constitutes a document revealing not current identity, but historical facts. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like.", "22. The 1953 Act provides for the correction of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered. The birth register may also, within twelve months from the date of registration, be altered to give or change the name of a child and re-registration of a birth is permitted where the child has been legitimated. In addition, under the Adoption Act 1958, where a child is adopted, the register of births is to be marked with the word \"adopted\"; the adoption is also registered in the Adopted Children Register and a short certificate of birth may be obtained which contains no reference to parentage or adoption.", "23. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it. However, the practice of the Registrar General is to use exclusively the biological criteria: chromosomal, gonadal and genital sex. The fact that it becomes evident later in life that the person ’ s \"psychological sex\" is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, i.e. cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.", "24. The birth registers and the indexes of all the entries are public. However, the registers themselves are not readily accessible to the general public as identification of the index reference would require prior knowledge not only of the name under which the person concerned was registered, but also of the approximate date and place of birth and the Registration District.", "25. The law does not require that the birth certificate be produced for any particular purpose, although it may in practice be requested by certain institutions and employers.", "In particular, a birth certificate has in general to accompany a first application for a passport, although not for its renewal or replacement. A birth certificate is also generally (though not invariably) required by insurance companies when issuing pension or annuity policies, but not for the issue of motor or household policies nor, as a rule, for the issue of a life insurance policy. It may also be required when enrolling at a university and when applying for employment, inter alia, with the Government.", "E. Marriage", "26. In English law, marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130, 133). Section 11 of the Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties are not respectively male and female.", "27. According to the decision of the High Court in Corbett v. Corbett (1971) Probate Reports 83, sex, for the purpose of contracting a valid marriage, is to be determined by the chromosomal, gonadal and genital tests where these are congruent. The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies. The entry in the birth register is prima facie evidence of the person ’ s sex. It may, however, be rebutted if evidence of sufficient weight to the contrary is adduced.", "28. If, for the purpose of procuring a marriage or a certificate or licence for marriage, any person knowingly and wilfully makes a false oath or makes or signs a false declaration, notice or certificate required under any Act relating to marriage, he is guilty of an offence under Section 3 (1) of the Perjury Act 1911. However, a person contracting a marriage abroad is not liable to prosecution under this Act.", "F. The legal definition of sex for other purposes", "29. The biological definition of sex laid down in Corbett v. Corbett has been followed by English courts and tribunals on a number of occasions and for purposes other than marriage.", "The applicant has drawn the Court ’ s attention to the following cases. In one case concerning prostitution, a male to female transsexual, who had undergone both hormone and surgical treatment, was nevertheless treated as a male by the Court of Appeal for the purposes of Section 30 of the Sexual Offences Act 1956 and Section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others 1983, [1983] 2 All England Law Reports 12). In two cases concerning social security legislation, male to female transsexuals were considered by the National Insurance Commissioner as males for the purposes of retirement age; in the first case the person in question had only received hormone therapy, in the second he had involuntarily begun to develop female secondary characteristics at the age of 46, which developments were followed by surgery and adoption of a female social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980 Volume of National Insurance Commissioner Decisions). Lastly, in a case before an Industrial Tribunal a female to male transsexual, who had not undergone any sex change treatment, was treated as a female by the Tribunal for the purposes of the Sex Discrimination Act 1975; the person in question had sought and received employment in a position reserved for men under the Factories Act, but was dismissed after discovery of her biological sex (White v. British Sugar Corporation Ltd. [1977] Industrial Relations Law Reports p. 121).", "PROCEEDINGS BEFORE THE COMMISSION", "30. In his application (no. 9532/81) lodged with the Commission on 18 April 1979, Mr. Rees complained that United Kingdom law did not confer on him a legal status corresponding to his actual condition. He invoked Articles 3, 8 and 12 (art. 3, art. 8, art. 12) of the Convention.", "31. On 15 March 1984, the Commission declared admissible the complaints under Articles 8 and 12 (art. 8, art. 12). In its report of 12 December 1984, it expressed the unanimous opinion that there had been a breach of Article 8 (art. 8), but not of Article 12 (art. 12). The full text of the Commission ’ s opinion is reproduced as an annex to the present judgment.", "FINAL SUBMISSIONS MADE TO THE COURT", "32. At the hearing on 18 March 1986, the Government formally invited the Court to reach the conclusion and make the findings (1) that there has been no breach of the right to respect for the private life of the applicant under Article 8 para. 1 (art. 8-1) of the Convention and (2) that there has been no breach of the applicant ’ s right to marry and found a family under Article 12 (art. 12) of the Convention.", "The applicant, for his part, asked the Court to find that there had been a breach of both Articles (art. 8, art. 12).", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)", "33. The applicant claimed to be the victim of national legislation and practices contrary to his right to respect for his private life, enshrined in Article 8 (art. 8), which provides:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "34. The applicant complained primarily of the constraints upon his full integration into social life which were a result of the failure of the Government to provide measures that would legally constitute him as a male for the purposes of the exhaustive classification of all citizens into male or female.", "In particular, he complained of the practice of issuing him with a birth certificate on which his sex continued to be recorded as \"female\". Such a certificate, he alleged, was effectively an irrebuttable description of his sex, wherever sex was a relevant issue and, revealing as it did the discrepancy between his apparent and his legal sex, it caused him embarrassment and humiliation whenever social practices required its production.", "The Government contested the applicant ’ s claim; the Commission, on the other hand, agreed with it in its essentials.", "A. Interpretation of Article 8 (art. 8) in the context of the present case", "35. The Court has already held on a number of occasions that, although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective respect for private life, albeit subject to the State ’ s margin of appreciation (see, as the most recent authority, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 33-34, para. 67).", "In the present case it is the existence and scope of such \"positive\" obligations which have to be determined. The mere refusal to alter the register of births or to issue birth certificates whose contents and nature differ from those of the birth register cannot be considered as interferences.", "36. The Commission and the applicant submitted that the applicant has been socially accepted as a man (see paragraph 17 above) and that, consistently with this, the change in his sexual identity should be given full legal recognition by the United Kingdom. It was only with regard to the choice of the necessary measures that there could be any room for a margin of appreciation, or for any balancing with countervailing public interests.", "The Government, on the other hand, maintained that the whole matter depended on the balance that had to be struck between the competing interests of the individual and of society as a whole.", "37. As the Court pointed out in its above-mentioned Abdulaziz, Cabales and Balkandali judgment the notion of \"respect\" is not clear-cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case.", "These observations are particularly relevant here. Several States have, through legislation or by means of legal interpretation or by administrative practice, given transsexuals the option of changing their personal status to fit their newly-gained identity. They have, however, made this option subject to conditions of varying strictness and retained a number of express reservations (for example, as to previously incurred obligations). In other States, such an option does not - or does not yet - exist. It would therefore be true to say that there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation.", "In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see, mutatis mutandis, amongst others, the James and Others judgment of 21 February 1986, Series A no. 98, p. 34, para. 50, and the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 26, para. 69). In striking this balance the aims mentioned in the second paragraph of Article 8 (art. 8-2) may be of a certain relevance, although this provision refers in terms only to \"interferences\" with the right protected by the first paragraph - in other words is concerned with the negative obligations flowing therefrom (see, mutatis mutandis, the Marckx judgment of 13 June 1979, Series A no. 31, p. 15, para. 31).", "B. Compliance with Article 8 (art. 8)", "38. Transsexualism is not a new condition, but its particular features have been identified and examined only fairly recently. The developments that have taken place in consequence of these studies have been largely promoted by experts in the medical and scientific fields who have drawn attention to the considerable problems experienced by the individuals concerned and found it possible to alleviate them by means of medical and surgical treatment. The term \"transsexual\" is usually applied to those who, whilst belonging physically to one sex, feel convinced that they belong to the other; they often seek to achieve a more integrated, unambiguous identity by undergoing medical treatment and surgical operations to adapt their physical characteristics to their psychological nature. Transsexuals who have been operated upon thus form a fairly well-defined and identifiable group.", "39. In the United Kingdom no uniform, general decision has been adopted either by the legislature or by the courts as to the civil status of post-operative transsexuals. Moreover, there is no integrated system of civil status registration, but only separate registers for births, marriages, deaths and adoption. These record the relevant events in the manner they occurred without, except in special circumstances (see paragraph 22 above), mentioning changes (of name, address, etc.) which in other States are registered.", "40. However, transsexuals, like anyone else in the United Kingdom, are free to change their first names and surnames at will (see paragraph 19 above). Similarly, they can be issued with official documents bearing their chosen first names and surnames and indicating, if their sex is mentioned at all, their preferred sex by the relevant prefix (Mr., Mrs., Ms. or Miss) (see paragraph 20 above). This freedom gives them a considerable advantage in comparison with States where all official documents have to conform with the records held by the registry office.", "Conversely, the drawback - emphasised by the applicant - is that, as the country ’ s legal system makes no provision for legally valid civil-status certificates, such persons have on occasion to establish their identity by means of a birth certificate which is either an authenticated copy of or an extract from the birth register. The nature of this register, which furthermore is public, is that the certificates mention the biological sex which the individuals had at the time of their birth (see paragraphs 21 and 24 above). The production of such a birth certificate is not a strict legal requirement, but may on occasion be required in practice for some purposes (see paragraph 25 above).", "It is also clear that the United Kingdom does not recognise the applicant as a man for all social purposes. Thus, it would appear that, at the present stage of the development of United Kingdom law, he would be regarded as a woman, inter alia, as far as marriage, pension rights and certain employments are concerned (see paragraphs 27 and 29 above). The existence of the unamended birth certificate might also prevent him from entering into certain types of private agreements as a man (see paragraph 25 above).", "41. For the applicant and the Commission this situation was incompatible with Article 8 (art. 8), there being in their opinion no justification for it on any ground of public interest. They submitted that the refusal of the Government to amend or annotate the register of births to record the individual ’ s change of sexual identity and to enable him to be given a birth certificate showing his new identity cannot be justified on any such ground. Such a system of annotation would, according to the applicant, be similar to that existing in the case of adoptions. The applicant and the Commission pointed to the example of certain other Contracting States which have recently made provision for the possibility of having the original indication of sex altered from a given date. The Commission additionally relied on the fact that the United Kingdom, through its free national health service, had borne the costs of the surgical operations and other medical treatment which the applicant had been enabled to undergo. They considered that this medical recognition of the necessity to assist him to realise his identity must be regarded as a further argument for the legal recognition of the change in his sexual identity; failure to do so had the effect that the applicant was treated as an ambiguous being.", "42. The Court is not persuaded by this reasoning.", "(a) To require the United Kingdom to follow the example of other Contracting States is from one perspective tantamount to asking that it should adopt a system in principle the same as theirs for determining and recording civil status.", "Albeit with delay and some misgivings on the part of the authorities, the United Kingdom has endeavoured to meet the applicant ’ s demands to the fullest extent that its system allowed. The alleged lack of respect therefore seems to come down to a refusal to establish a type of documentation showing, and constituting proof of, current civil status. The introduction of such a system has not hitherto been considered necessary in the United Kingdom. It would have important administrative consequences and would impose new duties on the rest of the population. The governing authorities in the United Kingdom are fully entitled, in the exercise of their margin of appreciation, to take account of the requirements of the situation pertaining there in determining what measures to adopt. While the requirement of striking a fair balance, as developed in paragraph 37 above, may possibly, in the interests of persons in the applicant ’ s situation, call for incidental adjustments to the existing system, it cannot give rise to any direct obligation on the United Kingdom to alter the very basis thereof.", "(b) Interpreted somewhat more narrowly, the applicant ’ s complaint might be seen as a request to have such an incidental adjustment in the form of an annotation to the present birth register.", "Whilst conceding that additions can be made to the entries in the birth register in order to record, for example, subsequent adoption or legitimation (see paragraphs 22-23 above), the Government disputed that the proposed annotation was comparable to additions of this kind. They submitted that, in the absence of any error or omission at the time of birth, the making of an alteration to the register as to the sex of the individual would constitute a falsification of the facts contained therein and would be misleading to other persons with a legitimate interest in being informed of the true situation. They contended that the demands of the public interest weighed strongly against any such alteration.", "The Court notes that the additions at present permitted as regards adoption and legitimation also concern events occurring after birth and that, in this respect, they are not different from the annotation sought by the applicant. However, they record facts of legal significance and are designed to ensure that the register fulfils its purpose of providing an authoritative record for the establishment of family ties in connection with succession, legitimate descent and the distribution of property. The annotation now being requested would, on the other hand, establish only that the person concerned henceforth belonged to the other sex. Furthermore, the change so recorded could not mean the acquisition of all the biological characteristics of the other sex. In any event, the annotation could not, without more, constitute an effective safeguard for ensuring the integrity of the applicant ’ s private life, as it would reveal his change of sexual identity.", "43. The applicant has accordingly also asked that the change, and the corresponding annotation, be kept secret from third parties.", "However, such secrecy could not be achieved without first modifying fundamentally the present system for keeping the register of births, so as to prohibit public access to entries made before the annotation. Secrecy could also have considerable unintended results and could prejudice the purpose and function of the birth register by complicating factual issues arising in, inter alia, the fields of family and succession law. Furthermore, no account would be taken of the position of third parties, including public authorities (e.g. the armed services) or private bodies (e.g. life insurance companies) in that they would be deprived of information which they had a legitimate interest to receive.", "44. In order to overcome these difficulties there would have to be detailed legislation as to the effects of the change in various contexts and as to the circumstances in which secrecy should yield to the public interest. Having regard to the wide margin of appreciation to be afforded the State in this area and to the relevance of protecting the interests of others in striking the requisite balance, the positive obligations arising from Article 8 (art. 8) cannot be held to extend that far.", "45. This conclusion is not affected by the fact, on which both the Commission and the applicant put a certain emphasis, that the United Kingdom cooperated in the applicant ’ s medical treatment.", "If such arguments were adopted too widely, the result might be that Government departments would become over-cautious in the exercise of their functions and the helpfulness necessary in their relations with the public could be impaired. In the instant case, the fact that the medical services did not delay the giving of medical and surgical treatment until all legal aspects of persons in the applicant ’ s situation had been fully investigated and resolved, obviously benefited him and contributed to his freedom of choice.", "46. Accordingly, there is no breach of Article 8 (art. 8) in the circumstances of the present case.", "47. That being so, it must for the time being be left to the respondent State to determine to what extent it can meet the remaining demands of transsexuals. However, the Court is conscious of the seriousness of the problems affecting these persons and the distress they suffer. The Convention has always to be interpreted and applied in the light of current circumstances (see, mutatis mutandis, amongst others, the Dudgeon judgment of 22 October 1981, Series A no. 45, pp. 23-24, paragraph 60). The need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and societal developments.", "II. ALLEGED VIOLATION OF ARTICLE 12 (art. 12)", "48. The applicant complained of the undisputed fact that, according to the law currently in force in the United Kingdom, he cannot marry a woman. He alleged a violation of Article 12 (art. 12), which provides:", "\"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.\"", "The Government contested this; the Commission was divided between two conflicting views.", "49. In the Court ’ s opinion, the right to marry guaranteed by Article 12 (art. 12) refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 (art. 12) is mainly concerned to protect marriage as the basis of the family.", "50. Furthermore, Article 12 (art. 12) lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired. However, the legal impediment in the United Kingdom on the marriage of persons who are not of the opposite biological sex cannot be said to have an effect of this kind.", "51. There is accordingly no violation in the instant case of Article 12 (art. 12) of the Convention." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "9. The applicant, who is a British citizen, was born in 1954 and registered in the birth register as a male, under the male Christian names of Barry Kenneth.", "10. At the age of 13 the applicant realised that she was unlike other boys and, by the age of 15 or 16, she understood that, although she had male external genitalia, she was psychologically of the female sex.", "In July 1972 she abandoned her male Christian names and assumed the female Christian name of Caroline, a change which she confirmed by deed poll (see paragraph 16 below) in March 1973. Since July 1972 she has been known under that name for all purposes, has dressed as a woman and has adopted a female role.", "11. In December 1974 the applicant, who had previously taken female hormones and had had an operation for breast augmentation involving implants, underwent gender reassignment surgery in a London hospital, to render the external anatomy nearer that of the female gender.", "A medical report dated 8 February 1984 describes Miss Cossey as a pleasant young woman, states that she has lived a full life as a female, both psychologically and physically, since the surgery and records that a genital examination showed her to have the external genitalia and vagina of a female. As a post-operative female transsexual, she is able to have sexual intercourse with a man.", "12. In 1976 the applicant was issued with a United Kingdom passport as a female (see paragraphs 16-17 below). From about 1979 to 1986 she was a successful fashion model, featuring regularly in newspapers, magazines and advertisements.", "13. In 1983 Miss Cossey and Mr L., an Italian national whom she had known for some fourteen months, wished to marry each other.", "By letter of 22 August 1983, the Registrar General informed the applicant that such a marriage would be void as a matter of English law, because it would classify her as male notwithstanding her anatomical and psychological status. Her Member of Parliament advised her in a letter of 30 August 1983 that a change in the law would be required to enable her to marry. A reply on behalf of the Registrar General, dated 18 January 1984, to a further enquiry by the applicant stated that she could not be granted a birth certificate showing her sex as female, since such a certificate records details as at the date of birth (see paragraphs 18-20 below).", "In 1985 - after the date of her application to the Commission - Miss Cossey and Mr L. ceased to be engaged to be married, though they remained good friends.", "14. On 21 May 1989 the applicant purported to marry a Mr X, at a ceremony conducted at a London synagogue. However, their relationship terminated on 11 June of the same year.", "Following a petition filed by Miss Cossey, who had been advised that this was her only means of obtaining financial relief, the marriage was, by decree nisi made by the High Court on 17 January 1990, pronounced to have been by law void by reason of the parties not being respectively male and female (see paragraphs 23-24 below). That decree was made final on 13 March 1990." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Medical treatment", "15. In the United Kingdom gender reassignment operations are permitted without legal formalities. The operations and treatment may be carried out under the National Health Service.", "B. Change of name", "16. Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities (see, inter alia, Halsbury ’ s Laws of England, 4th ed., vol. 35, paras. 1173-1176). For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes a declaration in the form of a \"deed poll\" which may be enrolled with the Central Office of the Supreme Court.", "The new names are valid for purposes of legal identification and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll.", "C. Identity documents", "17. Civil status certificates or equivalent current identity documents are not in use or required in the United Kingdom. Where some form of identification is needed, this is normally met by the production of a driving licence or a passport. These and other identity documents may, according to the prevailing practice, be issued in the adopted names of the person in question with a minimum of formality. In the case of transsexuals, the documents are also issued so as to be in all respects consistent with the new identity. Thus, the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix \"Mr\", \"Mrs\", \"Ms\" or \"Miss\", as appropriate, before his or her adopted names.", "D. The register of births", "18. The system of civil registration of births, deaths and marriages was established by statute in England and Wales in 1837. Registration of births is at present governed by the Births and Deaths Registration Act 1953 (\"the 1953 Act\"), which requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. The particulars to be entered are prescribed in regulations made under the 1953 Act.", "A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register. A certificate of the latter kind, known as a \"short certificate of birth\", is in a form prescribed and contains such particulars as are prescribed by regulations made under the 1953 Act, that is the name and surname, sex, date of birth and place of birth of the individual. It omits, notably, any particulars relating to parentage or adoption contained in the register.", "An entry in a birth register and the certificate derived therefrom are records of facts at the time of birth. Thus, in England and Wales the birth certificate constitutes a document revealing not current identity, but historical facts. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like.", "19. The 1953 Act provides for the correction, by the registrar or superintendent registrar, of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered. The birth register may also, within twelve months from the date of registration, be altered to give or change the name of a child.", "Statutory provision is made for the re-registration of the birth of a child who has been legitimated by the subsequent marriage of his parents. Thereafter birth certificates supplied concerning him take the form of a certified copy of the entry of re-registration; no copy of the previous entry may be given except under the direction of the Registrar General.", "Under the Adoption Act 1976, where a child is adopted, an entry (not including the names of the natural parents) will be made in a separate register known as the Adopted Children Register. In addition, the original entry in the register of births will be marked with the word \"Adopted\". The Registrar General keeps books to make traceable the connection between the entries in the two registers but these books are not accessible to the public, save on application by the adopted person himself or by order of a court. It is open to anyone to obtain a certified copy of the entry in the Adopted Children Register or a short certificate which contains no particulars relating to parentage.", "20. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it. However, the practice of the Registrar General is to use exclusively the biological criteria: chromosomal, gonadal and genital sex. The fact that it becomes evident later in life that the person ’ s \"psychological sex\" is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, i.e. cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.", "21. Indexes are maintained of all entries in birth registers. It is open to any member of the public to search the indexes (but not the registers themselves) and obtain a certified copy of any such entry. However, identification of the index reference requires prior knowledge not only of the name under which the person concerned was registered, but also of the approximate date and place of birth and the registration district.", "22. The law does not require that the birth certificate be produced for any particular purpose, although a certificate may in practice be requested by certain institutions and employers.", "A birth certificate has in general to accompany a first application for a passport, but is not needed for its renewal or replacement or for an application for a driving licence. A birth certificate is also usually (though not invariably) required by insurance companies when issuing pension or annuity policies, but not for the issue of motor or household policies nor, as a rule, for the issue of a life insurance policy. It may also be required when enrolling at a university and when applying for employment, inter alia, with the Government. In the case of a religious marriage ceremony, the celebrant is not obliged nor is there any statutory power under English law to ask the parties to produce copies of their birth certificates (see also paragraph 25 below).", "E. Marriage", "23. In English law, marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130, 133). Section 11 of the Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties are not respectively male and female.", "Under section 12 of the same Act, a marriage which is not consummated owing to the incapacity or wilful refusal of one of the parties to consummate it, is voidable.", "24. According to the decision of the High Court in Corbett v. Corbett [1971] Probate Reports 83, sex, for the purpose of contracting a valid marriage, is to be determined by the chromosomal, gonadal and genital tests where these are congruent, and without regard to any operative intervention. The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies. The entry in the birth register is prima facie evidence of the person ’ s sex. It may, however, be rebutted if evidence of sufficient weight to the contrary is adduced.", "25. If, for the purpose of procuring a marriage or a certificate or licence for marriage, any person knowingly and wilfully makes a false oath or makes or signs a false declaration, notice or certificate required under any Act relating to marriage, he or she is guilty of an offence under section 3(1) of the Perjury Act 1911. However, a person contracting a marriage abroad is not liable to prosecution under this Act.", "F. The legal definition of sex for other purposes", "26. The biological definition of sex laid down in Corbett v. Corbett has been followed by English courts and tribunals on a number of occasions and for purposes other than marriage.", "In one case concerning prostitution, a male-to-female transsexual, who had undergone both hormone and surgical treatment, was nevertheless treated as a male by the Court of Appeal for the purposes of section 30 of the Sexual Offences Act 1956 and section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others [1983] 2 All England Law Reports 12). In two cases concerning social security legislation, male-to-female transsexuals were considered by the National Insurance Commissioner as males for the purposes of retirement age; in the first case the person in question had only received hormone therapy, in the second she had involuntarily begun to develop female secondary characteristics at the age of 46, which developments were followed by surgery and adoption of a female social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980 Volume of National Insurance Commissioner Decisions). Lastly, in a case before an Industrial Tribunal a female-to-male transsexual, who had not undergone any sex-change treatment, was treated as a female by the Tribunal for the purposes of the Sex Discrimination Act 1975; the person in question had sought and received employment in a position reserved for men under the Factories Act, but was dismissed after discovery of her biological sex (White v. British Sugar Corporation Ltd [1977] Industrial Relations Law Reports 121).", "PROCEEDINGS BEFORE THE COMMISSION", "27. In her application (no. 10843/84) lodged with the Commission on 24 February 1984, Miss Cossey complained of the fact that under English law she cannot claim full recognition of her changed status and, in particular, is unable to enter into a valid marriage with a man. She alleged violations of Articles 8 and 12 (art. 8, art. 12) of the Convention.", "28. The Commission declared the application admissible on 5 July 1985. In its report of 9 May 1989 (drawn up in accordance with Article 31) (art. 31), the Commission expressed the opinion, by ten votes to six, that there had been a violation of Article 12 (art. 12), but not of Article 8 (art. 8).", "The full text of the Commission ’ s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT", "29. At the hearing on 24 April 1990 the Government requested the Court to \"decide and declare that there has been no breach of the applicant ’ s right to respect for private life under Article 8 para. 1 (art. 8-1) ... or of the applicant ’ s right to marry and to found a family under Article 12 (art. 12) ...\".", "AS TO THE LAW", "30. Miss Cossey claimed that the refusal to issue her with a birth certificate showing her sex as female and her inability, under English law, to contract a valid marriage with a man gave rise to violations of Article 8 and Article 12 (art. 8, art. 12), respectively, of the Convention. These provisions read as follows:", "Article 8 (art. 8)", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "Article 12 (art. 12)", "\"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.\"", "The applicant ’ s allegations were contested by the Government. A majority of the Commission expressed the opinion that there had been a violation of Article 12 (art. 12) but not of Article 8 (art. 8).", "31. The Court was confronted in the Rees case with issues akin to those arising in the present case. It therefore has to determine whether the two cases are distinguishable on their facts or whether it should depart from the judgment which it gave in the former case on 17 October 1986 (Series A no. 106; \"the Rees judgment\").", "I. IS THE PRESENT CASE DISTINGUISHABLE ON ITS FACTS FROM THE REES CASE?", "32. In the view of the applicant and certain members of the Commission, the present case was distinguishable on its facts from the Rees case, in that, at the time of their respective applications to the Commission, Miss Cossey had a male partner wishing to marry her (see paragraph 13 above) whereas Mr Rees did not have a female partner wishing to marry him. Reference was also made to the ceremony of marriage between the applicant and Mr X (see paragraph 14 above) which, although the marriage was declared void, was said to underline her wish to marry.", "The Court is not persuaded that this difference is material. In the first place, the fact that Mr Rees had no such partner played no part in the Court ’ s decisions, which were based on a general consideration of the principles involved (see the Rees judgment, pp. 14-18 and 19, paras. 35-46 and 48-51). In any event, as regards Article 8 (art. 8), the existence or otherwise of a willing marriage partner has no relevance in relation to the contents of birth certificates, copies of which may be sought or required for purposes wholly unconnected with marriage. Again, as regards Article 12 (art. 12), whether a person has the right to marry depends not on the existence in the individual case of such a partner or a wish to marry, but on whether or not he or she meets the general criteria laid down by law.", "33. Reliance was also placed by the applicant on the fact that she is socially accepted as a woman (see paragraphs 10-12 above), but this provides no relevant distinction because the same was true, mutatis mutandis, of Mr Rees (see the Rees judgment, p. 9, para. 17). Neither is it material that Miss Cossey is a male-to-female transsexual whereas Mr Rees is a female-to-male transsexual: this - the only other factual difference between the two cases - is again a matter that had no bearing on the reasoning in the Rees judgment.", "34. The Court thus concludes that the present case is not materially distinguishable on its facts from the Rees case.", "II. SHOULD THE COURT DEPART FROM ITS REES JUDGMENT?", "35. The applicant argued that, in any event, the issues arising under Articles 8 and 12 (art. 8, art. 12) deserved reconsideration.", "It is true that, as she submitted, the Court is not bound by its previous judgments; indeed, this is borne out by Rule 51 para. 1 of the Rules of Court. However, it usually follows and applies its own precedents, such a course being in the interests of legal certainty and the orderly development of the Convention case-law. Nevertheless, this would not prevent the Court from departing from an earlier decision if it was persuaded that there were cogent reasons for doing so. Such a departure might, for example, be warranted in order to ensure that the interpretation of the Convention reflects societal changes and remains in line with present-day conditions (see, amongst several authorities, the Inze judgment of 28 October 1987, Series A no. 126, p. 18, para. 41).", "A. Alleged violation of Article 8 (art. 8)", "36. The applicant asserted that the refusal to issue her with a birth certificate showing her sex as female constituted an \"interference\" with her right to respect for her private life, in that she was required to reveal intimate personal details whenever she had to produce a birth certificate. In her view, the Government had not established that this interference was justified under paragraph 2 of Article 8 (art. 8-2).", "On this point, the Court remains of the opinion which it expressed in the Rees judgment (p. 14, para. 35): refusal to alter the register of births or to issue birth certificates whose contents and nature differ from those of the original entries cannot be considered as an interference. What the applicant is arguing is not that the State should abstain from acting but rather that it should take steps to modify its existing system. The question is, therefore, whether an effective respect for Miss Cossey ’ s private life imposes a positive obligation on the United Kingdom in this regard.", "37. As the Court has pointed out on several occasions, notably in the Rees judgment itself (p. 15, para. 37), the notion of \"respect\" is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention.", "38. In reaching its conclusion in the Rees judgment that no positive obligation of the kind now in issue was incumbent on the United Kingdom, the Court noted, inter alia, the following points (pp. 17-18, paras. 42-44).", "(a) The requirement of striking a fair balance could not give rise to any direct obligation on the respondent State to alter the very basis of its system for the registration of births, which was designed as a record of historical facts, by substituting therefor a system of documentation, such as that used in some other Contracting States, for recording current civil status.", "(b) An annotation to the birth register, recording Mr Rees ’ change of sexual identity, would establish only that he belonged thenceforth - and not from the time of his birth - to the other sex. Furthermore, the change so recorded could not mean the acquisition of all the biological characteristics of the other sex. In any event, such an annotation could not, without more, constitute an effective safeguard for ensuring the integrity of his private life, as it would reveal the change in question.", "(c) That change, and the corresponding annotation, could not be kept secret from third parties without a fundamental modification of the existing system for maintaining the register of births, which was accessible to the public. Secrecy could have considerable unintended results and could prejudice the purpose and function of the register by, for instance, complicating factual issues arising in the fields of family and succession law. It would also take no account of the position of third parties, in that they would be deprived of information which they had a legitimate interest to receive.", "39. In the Court ’ s view, these points are equally cogent in the present case, especially as regards Miss Cossey ’ s submission that arrangements could be made to provide her either with a copy birth certificate stating her present sex, the official register continuing to record the sex at birth, or, alternatively, a short-form certificate, excluding any reference either to sex at all or to sex at the date of birth.", "Her suggestions in this respect were not precisely formulated, but it appears to the Court that none of them would overcome the basic difficulties. Unless the public character of the register of births were altered, the very details which the applicant does not wish to have disclosed would still be revealed by the original entry therein or, if that entry were annotated, would merely be highlighted. Moreover, the register could not be corrected to record a complete change of sex since that is not medically possible.", "40. In the Rees judgment, the Court, having noted that the United Kingdom had endeavoured to meet Mr Rees ’ demands to the fullest extent that its system allowed - and this applies also in the case of Miss Cossey -, pointed out that the need for appropriate legal measures concerning transsexuals should be kept under review having regard particularly to scientific and societal developments (pp. 17 and 19, paras. 42 and 47).", "The Court has been informed of no significant scientific developments that have occurred in the meantime; in particular, it remains the case - as was not contested by the applicant - that gender reassignment surgery does not result in the acquisition of all the biological characteristics of the other sex.", "There have been certain developments since 1986 in the law of some of the member States of the Council of Europe. However, the reports accompanying the resolution adopted by the European Parliament on 12 September 1989 (OJ No C 256, 9.10.1989, p. 33) and Recommendation 1117 (1989) adopted by the Parliamentary Assembly of the Council of Europe on 29 September 1989 - both of which seek to encourage the harmonisation of laws and practices in this field - reveal, as the Government pointed out, the same diversity of practice as obtained at the time of the Rees judgment. Accordingly this is still, having regard to the existence of little common ground between the Contracting States, an area in which they enjoy a wide margin of appreciation (see the Rees judgment, p. 15, para. 37). In particular, it cannot at present be said that a departure from the Court ’ s earlier decision is warranted in order to ensure that the interpretation of Article 8 (art. 8) on the point at issue remains in line with present-day conditions (see paragraph 35 above).", "41. The applicant also prayed in aid Article 14 (art. 14) of the Convention, which prohibits discrimination in the enjoyment of the rights and freedoms guaranteed. However, the Court does not consider that this provision assists her. She appears to have relied on it not so much in order to challenge a difference of treatment between persons placed in analogous situations (see, amongst various authorities, the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 26, para. 60) but rather as a means of introducing into her submissions the notion of proportionality between a measure or a restriction and the aim which it seeks to achieve. Yet that notion is already encompassed within that of the fair balance that has to be struck between the general interest of the community and the interests of the individual (see paragraph 37 above and the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 50, para. 120).", "42. The Court accordingly concludes that there is no violation of Article 8 (art. 8).", "The Court would, however, reiterate the observations it made in the Rees judgment (p. 19, para. 47). It is conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review.", "B. Alleged violation of Article 12 (art. 12)", "43. In reaching its conclusion in the Rees judgment that there had been no violation of Article 12 (art. 12), the Court noted the following points (p. 19, paras. 49-50).", "(a) The right to marry guaranteed by Article 12 (art. 12) referred to the traditional marriage between persons of opposite biological sex. This appeared also from the wording of the Article (art. 12) which made it clear that its main concern was to protect marriage as the basis of the family.", "(b) Article 12 (art. 12) laid down that the exercise of the right to marry shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right was impaired. However, the legal impediment in the United Kingdom on the marriage of persons who were not of the opposite biological sex could not be said to have an effect of this kind.", "44. Miss Cossey placed considerable reliance, as did the Delegate of the Commission, on the fact that she could not marry at all: as a woman, she could not realistically marry another woman and English law prevented her from marrying a man.", "In the latter connection, Miss Cossey accepted that Article 12 (art. 12) referred to marriage between a man and a woman and she did not dispute that she had not acquired all the biological characteristics of a woman. She challenged, however, the adoption in English law of exclusively biological criteria for determining a person ’ s sex for the purposes of marriage (see paragraph 24 above) and the Court ’ s endorsement of that situation in the Rees judgment, despite the absence from Article 12 (art. 12) of any indication of the criteria to be applied for this purpose. In her submission, there was no good reason for not allowing her to marry a man.", "45. As to the applicant ’ s inability to marry a woman, this does not stem from any legal impediment and in this respect it cannot be said that the right to marry has been impaired as a consequence of the provisions of domestic law.", "As to her inability to marry a man, the criteria adopted by English law are in this respect in conformity with the concept of marriage to which the right guaranteed by Article 12 (art. 12) refers (see paragraph 43 (a) above).", "46. Although some Contracting States would now regard as valid a marriage between a person in Miss Cossey ’ s situation and a man, the developments which have occurred to date (see paragraph 40 above) cannot be said to evidence any general abandonment of the traditional concept of marriage. In these circumstances, the Court does not consider that it is open to it to take a new approach to the interpretation of Article 12 (art. 12) on the point at issue. It finds, furthermore, that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person ’ s sex for the purposes of marriage, this being a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry.", "47. In the context of Article 12 (art. 12) the applicant again prayed in aid Article 14 (art. 14) of the Convention. On this point it suffices to refer to the observations in paragraph 41 above.", "48. The Court thus concludes that there is no violation of Article 12 (art. 12)." ]

[ "the circumstances of the case", "A. The first applicant, Miss Sheffield", "12. The first applicant, Miss Kristina Sheffield, is a British citizen born in 1946 and currently resident in London. At birth the applicant was registered as being of the male sex. Prior to her gender reassignment treatment (see paragraph 13 below) she was married. She has one daughter from that marriage, which is now dissolved.", "13. In 1986 the first applicant began treatment at a gender identity clinic in London and, on a date unspecified, successfully underwent sex reassignment surgery and treatment. She changed her name by deed poll to her present name. The change of name was recorded on her passport and driving licence.", "14. Miss Sheffield refers to the difficulties which she has encountered as a result of her decision to undergo gender reassignment surgery and her subsequent change of sex.", "15. She states that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a precondition to surgery being carried out. Following the divorce, the applicant’s former spouse applied to the court to have her contact with her daughter terminated. The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child’s interests. The applicant has not seen her daughter since then, a period of some twelve years.", "16. Although her new name has been entered on her passport and driving licence, her birth certificate and various records including social- security and police records continue to record her original name and gender. As to her passport, she maintains that if there is a need for further enquiries about the bearer, this will inevitably lead to her former name and gender being disclosed. She cites by way of example her experience when applying for a visa to the United States embassy in London.", "17. On 7 and 16 April 1992 Miss Sheffield attended court to stand surety in the sum of 2,000 pounds for a friend. On both occasions she was required, to her great embarrassment, to disclose to the court her previous name. She has also been dissuaded from acting as an alibi witness for a friend who was tried on criminal charges in March 1994 for fear of adding an element of sensationalism to the proceedings through the disclosure to the court of her original gender as inscribed on her birth certificate.", "18. In June 1992 Miss Sheffield was arrested for breach of firearms regulations. The charges were dropped when it was established that the pistol was a replica. Following comments of police officers indicating that they were aware that the applicant had undergone a sex-change operation, the applicant sought to discover whether these personal details were held on police computer files. She discovered that the official request for information made under the provisions of the Data Protection Act 1984 required her to state her sex and other names. She did not pursue the enquiry.", "19. On 20 December 1992 the applicant entered into an insurance contract in respect of her car. The form which she was required to fill in as the basis of the contract required her to state her sex. Since she continues under United Kingdom law to be regarded as male she was obliged to give her sex as male.", "She also notes that she is obliged under the Perjury Act 1911 to disclose her former sexual identity in certain contexts under pain of criminal sanction.", "20. The applicant maintains that her decision to undergo gender reassignment surgery has resulted in her being subjected to discrimination at work or in relation to obtaining work. She is a pilot by profession. She states that she was dismissed by her employers in 1986 as a direct consequence of her gender reassignment and has found it impossible to obtain employment in the respondent State in her chosen profession. She attributes this in large part to the legal position of transsexuals in that State.", "B. The second applicant, Miss Horsham", "21. The second applicant, Miss Rachel Horsham, is a British citizen born in 1946. She has been living in the Netherlands since 1974 and acquired Netherlands citizenship by naturalisation in September 1993.", "The second applicant was registered at birth as being of the male sex. She states that from an early age she began to experience difficulties in relating to herself as male and when she was twenty-one she fully understood that she was a transsexual. She left the United Kingdom in 1971 as she was concerned about the consequences of being identified as a transsexual. Thereafter she led her life abroad as a female.", "22. From 1990, Miss Horsham received psychotherapy and hormonal treatment and finally underwent gender reassignment surgery on 21 May 1992 at the Free University Hospital, Amsterdam.", "23. On 26 June1992, following earlier refusals, she applied to the British consulate in Amsterdam seeking a change of photograph and the inscription of her new name in her passport. She was informed that this could only be carried out in accordance with an order from the Netherlands courts. On 24 August 1992 Miss Horsham obtained an order from the Amsterdam Regional Court that she be issued a birth certificate by the Registrar of Births in The Hague recording her new name and the fact that she was of the female sex. The birth certificate was issued on 12 November 1992. In the meantime, on 11 September 1992 and on production of the court order, the British consulate issued a new passport to the applicant recording her new name and her sex as female.", "24. On 15 November 1992 the second applicant requested that her original birth certificate in the United Kingdom be amended to record her sex as female. By letter dated 20 November 1992, the Office of Population Censuses and Surveys (OPCS) replied that there was no provision under United Kingdom law for any new information to be inscribed on her original birth certificate.", "25. Miss Horsham states that she is forced to live in exile because of the legal situation in the United Kingdom. She has a male partner whom she plans to marry. She states that they would like to lead their married life in the United Kingdom but has been informed by the OPCS by letter dated 4 November 1993 that as a matter of English law, if she were to be held to be domiciled in the United Kingdom, she would be precluded from contracting a valid marriage whether that marriage “took place in the Netherlands or elsewhere”." ]

[ "ii. Relevant domestic law and practice", "A. Names", "26. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll.", "B. Marriage and definition of gender in domestic law", "27. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen’s Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy.", "Under section 11(b) of the Matrimonial Causes Act 1973 any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice Ormrod).", "C. Birth certificates", "28. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.", "29. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett.", "30. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person’s life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.", "31. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation.", "D. Social security, employment and pensions", "32. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. A male-to-female transsexual will accordingly only be entitled to a State pension at the State retirement age of 65 and not the age of 60 which is applicable to women.", "E. Other relevant materials", "33. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and accordingly Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that", "“... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.", "To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22)", "34. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 ( Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports).", "Liberty’s observations", "35. In their written observations on the legal recognition of transsexuals in comparative law (see paragraph 6 above), Liberty suggested that over the last decade there has been an unmistakably clear trend in the member States of the Council of Europe towards giving full legal recognition to gender reassignment. According to the study carried out by Liberty, the majority of member States now make provision for such recognition. For example, out of thirty-seven countries analysed, only four (including the United Kingdom) do not permit a change to be made to a person’s birth certificate in one form or another to reflect the re-assigned sex of that person.", "PROCEEDINGS BEFORE THE COMMISSION", "36. Miss Sheffield applied to the Commission on 4 August 1993. She alleged that the refusal of the respondent State to give legal recognition to her status as a woman following gender reassignment surgery gave rise to violations of Articles 8, 12 and 14 of the Convention and that she had no effective remedy in respect of her complaints, in breach of Article 13. She also complained that she was coerced by underhand methods into divorcing and is prevented from having contact with her daughter.", "The Commission declared the application (no. 22985/93) admissible on 19 January 1996 with the exception of her complaint regarding her divorce and contact with her daughter which had been declared inadmissible on 4 September 1995 for failure to comply with the six-month time-limit under the Convention. In its report of 21 January 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (fifteen votes to one); that the applicant’s complaint under Article 12 of the Convention did not give rise to any separate issue (nine votes to seven); that the applicant’s complaint under Article 14 of the Convention did not give rise to any separate issue (unanimously); and that there had been no violation of Article 13 of the Convention (unanimously).", "37. In her application to the Commission lodged on 4 August 1993, Miss Horsham alleged that the refusal of the respondent State to give legal recognition to her status as a woman following gender reassignment surgery gave rise to violations of Articles 3, 8, 12, 13 and 14 of the Convention as well as of Article 3 of Protocol No. 4 in relation to alleged constructive expulsion from the respondent State.", "The Commission declared the application (no. 23390/94) admissible on 19 January 1996 with the exception of her complaints under Article 3 of the Convention and Article 3 of Protocol No. 4 which had been declared inadmissible on 4 September 1995. In its report of 21 January 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 of the Convention (fifteen votes to one); that her complaint under Article 12 of the Convention did not give rise to any separate issue (ten votes to six); that the applicant’s complaint under Article 14 of the Convention did not give rise to any separate issue (unanimously); and that there had been no violation of Article 13 of the Convention (unanimously).", "38. The full text of the Commission’s opinions in the two cases and of the dissenting opinions contained in the reports is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "39. The applicants in their joint memorial requested the Court to decide and declare that the facts of the case disclose a breach of their rights under Article 8 of the Convention and/or Article 14 in conjunction with Article 8, and to award them just satisfaction under Article 50.", "The Government requested the Court in their memorial to decide and declare that the facts disclose no breach of the applicants’ rights.", "AS TO THE LAW", "I. Alleged violation of Article 8 of the Convention", "40. The applicants complained that the failure of the respondent State to recognise in law that they were of the female sex constituted an interference with their rights to respect for their private lives guaranteed under Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "41. The Commission accepted the applicants’ submissions. The Government contended that there had been no violation of Article 8 in the circumstances of the case.", "1. Arguments of those appearing before the Court", "(a) The applicants", "42. The applicants stated that under English law they continue to be regarded as being of the male sex and to suffer prejudice on that account. The failure to give legal recognition to their new gender has serious consequences for the way in which they conducted their lives, compelling them to identify themselves frequently in public contexts in a gender which they had renounced. This was a matter of profound hurt and distress and an affront to their dignity. Miss Sheffield’s experiences (see paragraphs 16–20 above) provided a convincing account of the extreme disadvantages which beset post-operative transsexuals and of how the current legal situation operated to the detriment of their privacy and even exposed them to the risk of penalties for the offence of perjury. For her part, Miss Horsham claimed that she had had to abandon her residence in the United Kingdom in order to avoid the difficulties which she encountered there as a transsexual.", "43. They contended that the law of the respondent State continued to be based on a restrictive and purely biological approach to the determination of an individual’s gender (see paragraphs 27 and 29 above). In their view, the conclusive nature of that approach should now be reviewed in light of recent medical research findings which demonstrated convincingly that the sex of a person’s brain is also to be considered one of the decisive indices of his or her gender. According to Professor L.J.G. Gooren, a distinguished and recognised authority on this subject, the brain’s ability to differentiate between the male and female sex occurs when an individual is between 3 and 4 years old. A problem arises if the brain differentiates sex in a manner which is contradictory to the nature of the external genitalia. This dysfunction explains the feelings which transsexuals like the applicants have about their bodies.", "44. The continued insistence in English law on the use of purely biological criteria for the determination of gender meant that they were unable to have the register of births amended to record their post-operative gender. The applicants challenged the official view that it was impossible to amend or update the facts contained in the register save for cases of clerical or factual error. They pointed to instances where the register had been amended to take account of a person’s change of sex and reasoned that if it were possible to update the register in cases of adoption it should also be feasible to do so in respect of gender reassignment.", "45. The applicants recalled that the Court in its Rees v. the United Kingdom judgment of 17 October 1986 (Series A no. 106, pp. 18–19, § 47) had stated that the respondent State should keep the need for appropriate legal measures in the area of transsexualism under review having regard in particular to scientific and societal developments. The Court reiterated that view in its Cossey v. the United Kingdom judgment of 27 September 1990 (Series A no. 184, p. 17, § 41). Notwithstanding new medical findings on the cause of transsexualism (see paragraph 43 above) and the increased legal recognition of a transsexual’s post-operative gender at the level of the European Union and in the member States of the Council of Europe (see paragraphs 33–35 above), the respondent State has still not reviewed its domestic law in this area.", "(b) The Government", "46. The Government replied that Article 8 of the Convention does not require a Contracting State to recognise generally for legal purposes the new sexual identity of an individual who has undergone gender reassignment surgery. With reference to the above-mentioned Rees and Cossey judgments, they pleaded that a Contracting State properly enjoys a wide margin of appreciation in respect of its positive obligations under Article 8, especially so in the area of transsexualism where there is no sufficiently broad consensus within the member States on how to address the complexity of the legal, ethical, scientific and social issues which arise. They argued that Professor Gooren’s research findings on the notion of a person’s psychological sex (see paragraph 43 above) cannot be considered conclusive of the issue and required further verification (see, for example, S.M. Breedlove’s article in Nature, vol. 378, p. 15, 2 November 1995); nor was the applicants’ reliance on the European Court of Justice’s ruling in P. v. S. and Cornwall County Council of support to their case that a European-wide consensus existed on the need to give legal recognition to the situation of transsexuals. That case was not concerned with the legal status of transsexuals. Moreover, much of the comparative material submitted by Liberty had already been considered by the Court at the time of its judgment in the Rees case.", "47. The Government further submitted that the applicants had not adduced any evidence of having suffered any substantial practical detriment on a day-to-day basis which would suggest that the authorities had exceeded their margin of appreciation. The applicants are only obliged to reveal their pre-operative gender on rare occasions and only when it is justified to do so. Further, to allow the applicants’ birth certificates to be altered so as to provide them with official proof of their new sexual status would undermine the function of the register of births as a historical record of fact; nor could the civil liberties implications of allowing a change of sex to be entered on the register be discounted.", "48. In view of these considerations, the Government maintained that any inconvenience which the applicants may suffer is not such as to upset the fair balance which must be struck between the general interests of the community and their individual interests.", "(c) The Commission", "49. The Commission considered that the applicants, even if they do not suffer daily humiliation and embarrassment, are nevertheless subject to a real and continuous risk of intrusive and distressing enquiries and to an obligation to make embarrassing disclosures. Miss Sheffield’s case showed that this risk was not theoretical.", "50. The Commission had regard in particular to the clear trend in European legal systems towards legal acknowledgment of gender reassignment. It also found it significant that the medical profession has reached a consensus that transsexualism is an identifiable medical condition, gender dysphoria, in respect of which gender reassignment treatment is ethically permissible and can be recommended for improving the quality of life and, moreover, is State-funded in certain member States. In view of these developments, the Government’s concerns about the difficulties in assimilating the phenomenon of transsexualism readily into existing legal frameworks cannot be of decisive weight. In the view of the Commission, appropriate ways could be found to provide for transsexuals to be given prospective legal recognition of their gender reassignment without destroying the historical nature of the register of births. The Commission considered that the concerns put forward by the Government, even having regard to their margin of appreciation in this area, were not sufficient to outweigh the interests of the applicants and for that reason there had been a violation of Article 8 of the Convention.", "2. The Court’s assessment", "51. The Court observes that it is common ground that the applicants’ complaints fall to be considered from the standpoint of whether or not the respondent State has failed to comply with a positive obligation to ensure respect for their rights to respect for their private lives. It has not been contended that the failure of the authorities to afford them recognition for legal purposes, in particular by altering the register of births to reflect their new gender status or issuing them with birth certificates whose contents and nature differ from the entries made at the time of their birth, constitutes an “interference”.", "Accordingly, as in the above-mentioned Rees and Cossey cases, the issue raised by the applicants before the Court is not that the respondent State should abstain from acting to their detriment but that it has failed to take positive steps to modify a system which they claim operates to their prejudice. The Court will therefore proceed on that basis.", "52. The Court reiterates that the notion of “respect” is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention (see the above-mentioned Rees judgment, p. 15, § 37; and the above-mentioned Cossey judgment, p. 15, § 37).", "53. It is to be noted that in applying the above principle in both the Rees and Cossey cases, the Court concluded that the same respondent State was under no positive obligation to modify its system of birth registration in order to allow those applicants the right to have the register of births updated or annotated to record their new sexual identities or to provide them with a copy birth certificate or a short-form certificate excluding any reference to sex at all or sex at the time of birth.", "Although the applicants in the instant case have formulated their complaints in terms which are wider than those invoked by Mr Rees and Miss Cossey since they contend that their rights under Article 8 of the Convention have been violated on account of the failure of the respondent State to recognise for legal purposes generally their post-operative gender, it is nonetheless the case that the essence of their complaints concerns the continuing insistence by the authorities on the determination of gender according to biological criteria alone and the immutability of the gender information once it is entered on the register of births.", "54. The Government have relied in continuing defence of the current system of births registration on the general interest grounds which were accepted by the Court in its Rees and Cossey judgments as justification for preserving the register of births as a historical record of facts subject neither to alteration so as to record an entrant’s change of sex nor to abridgement in the form of an extract containing no indication of the bearer’s registered gender (see, in particular, the Cossey judgment, pp. 15–16, §§ 38 and 39), as well as to the wide margin of appreciation which they claim in respect of the treatment to be accorded in law to post-operative transsexuals. It is the applicants’ contention that that defence is no longer tenable having regard to significant scientific and legal developments and to the clear detriment which the maintenance in force of the current system has on their personal situation, factors which, in their view, tilt the balance away from public-interest considerations in favour of the need to take action to safeguard their own individual interests.", "55. The Court notes that in its Cossey judgment it considered that there had been no noteworthy scientific developments in the area of transsexualism in the period since the date of adoption of its Rees judgment which would compel it to depart from the decision reached in the latter case. This view was confirmed subsequently in the Court’s B. v. France judgment of 25 March 1992 (Series A no. 232-C) in which it observed that there still remained uncertainty as to the essential nature of transsexualism and that the legitimacy of surgical intervention in such cases is sometimes questioned (p. 49, § 48). As to legal developments occurring since the date of the Cossey judgment, the Court in the B. case stated that there was, as yet, no sufficiently broad consensus among the member States on how to deal with a range of complex legal matters resulting from a change of sex.", "56. In the view of the Court, the applicants have not shown that since the date of adoption of its Cossey judgment in 1990 there have been any findings in the area of medical science which settle conclusively the doubts concerning the causes of the condition of transsexualism. While Professor Gooren’s research into the role of the brain in conditioning transsexualism may be seen as an important contribution to the debate in", "this area (see paragraph 43 above), it cannot be said that his views enjoy the universal support of the medico-scientific profession. Accordingly, the non-acceptance by the authorities of the respondent State for the time being of the sex of the brain as a crucial determinant of gender cannot be criticised as being unreasonable. The Court would add that, as at the time of adoption of the Cossey judgment, it still remains established that gender reassignment surgery does not result in the acquisition of all the biological characteristics of the other sex despite the increased scientific advances in the handling of gender reassignment procedures.", "57. As to legal developments in this area, the Court has examined the comparative study which has been submitted by Liberty (see paragraph 35 above). However, the Court is not fully satisfied that the legislative trends outlined by amicus suffice to establish the existence of any common European approach to the problems created by the recognition in law of post-operative gender status. In particular, the survey does not indicate that there is as yet any common approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection, or the circumstances in which a transsexual may be compelled by law to reveal his or her pre-operative gender.", "58. The Court is accordingly not persuaded that it should depart from its Rees and Cossey decisions and conclude that on the basis of scientific and legal developments alone the respondent State can no longer rely on a margin of appreciation to defend its continuing refusal to recognise in law a transsexual’s post-operative gender. For the Court, it continues to be the case that transsexualism raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States (see the X, Y and Z v. the United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, p. 635, § 52).", "59. Nor is the Court persuaded that the applicants’ case histories demonstrate that the failure of the authorities to recognise their new gender gives rise to detriment of sufficient seriousness as to override the respondent State’s margin of appreciation in this area (cf. the above-mentioned B. v. France judgment). It cannot be denied that the incidents alluded to by Miss Sheffield were a source of embarrassment and distress to her and that Miss Horsham, if she were to return to the United Kingdom, would equally run the risk of having on occasion to identify herself in her pre-operative gender. At the same time, it must be acknowledged that an individual may with justification be required on occasion to provide proof of gender as well as medical history. This is certainly the case of life assurance contracts which are uberrimae fidei. It may possibly be true of motor insurance where the insurer may need to have regard to the sex of the driver in order to make an actuarial assessment of the risk. Furthermore, it would appear appropriate for a court to run a check on whether a person has a criminal record, either under his or her present name or former name, before accepting that person as a surety for a defendant in criminal proceedings. However, quite apart from these considerations the situations in which the applicants may be required to disclose their pre-operative gender do not occur with a degree of frequency which could be said to impinge to a disproportionate extent on their right to respect for their private lives. The Court observes also that the respondent State has endeavoured to some extent to minimise intrusive enquiries as to their gender status by allowing transsexuals to be issued with driving licences, passports and other types of official documents in their new name and gender, and that the use of birth certificates as a means of identification is officially discouraged (see paragraphs 26 and 31 above).", "60. Having reached those conclusions, the Court cannot but note that despite its statements in the Rees and Cossey cases on the importance of keeping the need for appropriate legal measures in this area under review having regard in particular to scientific and societal developments (see, respectively, pp. 18–19, § 47, and p. 41, § 42), it would appear that the respondent State has not taken any steps to do so. The fact that a transsexual is able to record his or her new sexual identity on a driving licence or passport or to change a first name are not innovative facilities. They obtained even at the time of the Rees case. Even if there have been no significant scientific developments since the date of the Cossey judgment which make it possible to reach a firm conclusion on the aetiology of transsexualism, it is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter. Even if it finds no breach of Article 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States.", "61. For the above reasons, the Court considers that the applicants have not established that the respondent State has a positive obligation under Article 8 of the Convention to recognise in law their post-operative gender. Accordingly, there is no breach of that provision in the instant case.", "II. Alleged violation of Article 12 of the ConventiON", "62. The applicants submitted that any marriage which a male-to-female post-operative transsexual contracted with a man would be void under English law having regard to the fact that a male-to-female transsexual is still considered for legal purposes as male. While they addressed the prejudice which they suffered in respect of their right to marry in the context of their more general complaint under Article 8 of the Convention, before the Commission they relied on Article 12 of the Convention, which provides:", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”", "63. Miss Horsham stated in particular that she intended to marry her male partner in the Netherlands, where the validity of her marriage would be recognised. However, she feared that she would be unable to settle subsequently in the United Kingdom since it was doubtful whether the English courts would recognise the validity of the marriage. This situation meant that she would have to live her married life in forced exile outside the United Kingdom.", "64. The Government contended that there was no breach of the applicants’ rights under Article 12 of the Convention and requested the Court to endorse this view on the basis of the reasoning which led it to conclude in the above-mentioned Rees and Cossey cases that there had been no breach of that provision. As to Miss Horsham’s situation, the Government further submitted that she had never sought to test the validity of her proposed marriage, which might well be recognised by the English courts in application of the rules of private international law. She must be considered to have failed to exhaust domestic remedies in respect of this complaint.", "65. The Commission found that the applicants’ allegations gave rise to no separate issue having regard to the substance of their complaints under Article 8 of the Convention.", "66. The Court recalls that the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family. Furthermore, Article 12 lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired. However, the legal impediment in the United Kingdom on the marriage of persons who are not of the opposite biological sex cannot be said to have an effect of this kind (see the above-mentioned Rees judgment, p. 19, §§ 49 and 50).", "67. The Court recalls further that in its Cossey judgment it found that the attachment to the traditional concept of marriage which underpins Article 12 of the Convention provides sufficient reason for the continued adoption by the respondent State of biological criteria for determining a person’s sex for the purposes of marriage, this being a matter encompassed within the power of the Contracting States to regulate by national law the exercise of the right to marry (p. 18, § 46).", "68. In light of the above considerations, the Court finds that the inability of either applicant to contract a valid marriage under the domestic law of the respondent State having regard to the conditions imposed by the Matrimonial Causes Act 1973 (see paragraph 27 above) cannot be said to constitute a violation of Article 12 of the Convention.", "69. The Court is not persuaded that Miss Horsham’s complaint raises an issue under Article 12 which engages the responsibility of the respondent State since it relates to the recognition by that State of a post-operative transsexual’s foreign marriage rather than the law governing the right to marry of individuals within its jurisdiction. In any event, this applicant has not provided any evidence that she intends to set up her matrimonial home in the United Kingdom and to enjoy married life there. Furthermore, it cannot be said with certainty what the outcome would be were the validity of her marriage to be tested in the English courts.", "70. The Court concludes that there has been no violation of Article 12.", "III. Alleged violation of Article 14 of the Convention in conjunction with Article 8", "71. The applicants maintained that they were victims of a breach of Article 14 of the Convention in conjunction with Article 8. Article 14 provides:", "“ The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status .”", "72. The applicants contended that transsexuals alone are compelled to describe themselves frequently and in public by a gender which does not accord with their external appearances. The discrimination which they suffer compared with either other members of society or with other women who have not undergone gender reassignment surgery is intrusive and a cause of profound embarrassment and distress. Given that the law continues to treat them as being of the male sex, they argued that they are victims of sex discrimination having regard to the detriment which they, unlike men, suffer through having to disclose their pre-operative gender. They maintained that their disadvantaged position in law impinges on intimate aspects of their private lives and in a disproportionate manner which cannot be justified by an appeal to the respondent State’s margin of appreciation under Article 14 of the Convention.", "73. The Government submitted that the applicants received the same treatment in law as any other person who has undergone gender reassignment surgery. In any event, any difference in treatment which the applicants may experience as compared to other members of the public could be justified on the basis of the reasons which they had advanced by way of defence to the applicants’ complaints under Article 8 of the Convention.", "74. The Commission found that the applicants’ complaints did not give rise to any separate issue having regard to the conclusions which it reached in respect of their allegations under Articles 8 and 12 of the Convention.", "75. The Court reiterates that Article 14 affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction.", "Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1507, § 72).", "76. The Court notes that it has already concluded that the respondent State has not overstepped its margin of appreciation in not according legal recognition to a transsexual’s post-operative gender. In reaching that conclusion, it was satisfied that a fair balance continues to be struck between the need to safeguard the interests of transsexuals such as the applicants and the interests of the community in general and that the situations in which the applicants may be required to disclose their pre-operative gender do not occur with a degree of frequency which could be said to impinge to a disproportionate extent on their right to respect for their private lives.", "Those considerations, which are equally encompassed in the notion of “reasonable and objective justification” for the purposes of Article 14 of the Convention (see the above-mentioned Cossey judgment, p. 17, § 41), must also be seen as justifying the difference in treatment which the applicants experience irrespective of the reference group relied on.", "77. The Court concludes therefore that no violation has been established under this head of complaint.", "IV. Alleged violation of Article 13 of the Convention", "78. The applicants stated in their memorial and at the hearing that they did not wish to pursue their complaints under Article 13.", "79. The Commission concluded that there was no violation of this provision and the Government endorsed this conclusion in their memorial. Neither the Government nor the Delegate of the Commission addressed the complaints at the hearing.", "80. Having regard to the above considerations, the Court does not consider it necessary to examine this head of complaint." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "12. The applicant is a United Kingdom citizen born in 1937 and is a post-operative male to female transsexual.", "13. The applicant had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid-1960s, she was diagnosed as a transsexual. Though she married a woman and they had four children, her conviction was that her “brain sex” did not fit her body. From that time until 1984 she dressed as a man for work but as a woman in her free time. In January 1985, the applicant began treatment in earnest, attending appointments once every three months at the Gender Identity Clinic at the Charing Cross Hospital, which included regular consultations with a psychiatrist as well as on occasion a psychologist. She was prescribed hormone therapy, began attending grooming classes and voice training. Since this time, she has lived fully as a woman. In October 1986, she underwent surgery to shorten her vocal chords. In August 1987, she was accepted on the waiting list for gender re-assignment surgery. In 1990, she underwent gender re-assignment surgery at a National Health Service hospital. Her treatment and surgery was provided for and paid for by the National Health Service.", "14. The applicant divorced from her former wife on a date unspecified but continued to enjoy the love and support of her children.", "15. The applicant claims that between 1990 and 1992 she was sexually harassed by colleagues at work. She attempted to pursue a case of sexual harassment in the Industrial Tribunal but claimed that she was unsuccessful because she was considered in law to be a man. She did not challenge this decision by appealing to the Employment Appeal Tribunal. The applicant was subsequently dismissed from her employment for reasons connected with her health, but alleges that the real reason was that she was a transsexual.", "16. In 1996, the applicant started work with a new employer and was required to provide her National Insurance (“NI”) number. She was concerned that the new employer would be in a position to trace her details as once in the possession of the number it would have been possible to find out about her previous employers and obtain information from them. Although she requested the allocation of a new NI number from the Department of Social Security (“DSS”), this was rejected and she eventually gave the new employer her NI number. The applicant claims that the new employer has now traced back her identity as she began experiencing problems at work. Colleagues stopped speaking to her and she was told that everyone was talking about her behind her back.", "17. The DSS Contributions Agency informed the applicant that she would be ineligible for a State pension at the age of 60, the age of entitlement for women in the United Kingdom. In April 1997, the DSS informed the applicant that her pension contributions would have to be continued until the date at which she reached the age of 65, being the age of entitlement for men, namely April 2002. On 23 April 1997, she therefore entered into an undertaking with the DSS to pay direct the NI contributions which would otherwise be deducted by her employer as for all male employees. In the light of this undertaking, on 2 May 1997, the DSS Contributions Agency issued the applicant with a Form CF 384 Age Exemption Certificate (see Relevant domestic law and practice below).", "18. The applicant's files at the DSS were marked “sensitive” to ensure that only an employee of a particular grade had access to her files. This meant in practice that the applicant had to make special appointments for even the most trivial matters and could not deal directly with the local office or deal with queries over the telephone. Her record continues to state her sex as male and despite the “special procedures” she has received letters from the DSS addressed to the male name which she was given at birth.", "19. In a number of instances, the applicant stated that she has had to choose between revealing her birth certificate and foregoing certain advantages which were conditional upon her producing her birth certificate. In particular, she has not followed through a loan conditional upon life insurance, a re-mortgage offer and an entitlement to winter fuel allowance from the DSS. Similarly, the applicant remains obliged to pay the higher motor insurance premiums applicable to men. Nor did she feel able to report a theft of 200 pounds sterling to the police, for fear that the investigation would require her to reveal her identity.", "III. INTERNATIONAL TEXTS", "58. Article 9 of the Charter of Fundamental Rights of the European Union, signed on 7 December 2000, provides:", "“The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Names", "20. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for the purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll.", "B. Marriage and definition of gender in domestic law", "21. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen's Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy.", "22. Under section 11(b) of the Matrimonial Causes Act 1973, any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice Ormrod ).", "This decision was reinforced by Section 12(a) of the Matrimonial Causes Act 1973, according to which a marriage that has not been consummated owing to the incapacity of either party to consummate may be voidable. Section 13(1) of the Act provides that the court must not grant a decree of nullity if it is satisfied that the petitioner knew the marriage was voidable, but led the respondent to believe that she would not seek a decree of nullity, and that it would be unjust to grant the decree.", "C. Birth certificates", "23. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.", "24. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett.", "25. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person's life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified, or where the biological criteria were not congruent, can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.", "26. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation.", "D. Social security, employment and pensions", "27. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth.", "1. National Insurance", "28. The DSS registers every British citizen for National Insurance purposes (“NI”) on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable.", "29. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder's sex or of any other personal information. The NI number is used to identify each person with a NI account (there are at present approximately 60 million individual NI accounts). The DSS are thereby able to record details of all NI contributions paid into the account during the NI account holder's life and to monitor each person's liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons e.g. under the witness protection schemes or to protect the identity of child offenders.", "30. Under Regulation 44 of the Social Security (Contributions) Regulations 1979, made under powers conferred by paragraph 8(1)(p) of Schedule 1 to the Social Security Contributions and Benefits Act 1992, specified individuals are placed under an obligation to apply for a NI number unless one has already been allocated to them.", "31. Under Regulation 45 of the 1979 Regulations, an employee is under an obligation to supply his NI number to his employer on request.", "32. Section 112(1) of the Social Security Administration Act 1992 provides:", "“(1) If a person for the purpose of obtaining any benefit or other payment under the legislation ...[as defined in section 110 of the Act]... whether for himself or some other person, or for any other purpose connected with that legislation -", "(a) makes a statement or representation which he knows to be false; or", "(b) produces or furnishes, or knowingly causes or knowingly allows to be produced or furnished, any document or information which he knows to be false in a material particular, he shall be guilty of an offence.”", "33. It would therefore be an offence under this section for any person to make a false statement in order to obtain a NI number.", "34. Any person may adopt such first name, surname or style of address (e.g. Mr, Mrs, Miss, Ms) that he or she wishes for the purposes of the name used for NI registration. The DSS will record any such amendments on the person's computer records, manual records and NI number card. But, the DSS operates a policy of only issuing one NI number for each person regardless of any changes that occur to that person's sexual identity through procedures such as gender re-assignment surgery. A renewed application for leave to apply for judicial review of the legality of this policy brought by a male-to-female transsexual was dismissed by the Court of Appeal in the case of R v. Secretary of State for Social Services ex parte Hooker (1993) (unreported). McCowan LJ giving the judgment of the Court stated (at page 3 of the transcript):", "“...since it will not make the slightest practical difference, far from the Secretary of State's decision being an irrational one, I consider it a perfectly rational decision. I would further reject the suggestion that the applicant had a legitimate expectation that a new number would be given to her for psychological purposes when, in fact, its practical effect would be nil.”", "35. Information held in the DSS NI records is confidential and will not normally be disclosed to third parties without the consent of the person concerned. Exceptions are possible in cases where the public interest is at stake or the disclosure is necessary to protect public funds. By virtue of Section 123 of the Social Security Administration Act 1992, it is an offence for any person employed in social security administration to disclose without lawful authority information acquired in the course of his or her employment.", "36. The DSS operates a policy of normally marking records belonging to persons known to be transsexual as nationally sensitive. Access to these records is controlled by DSS management. Any computer printer output from these records will normally be referred to a special section within the DSS to ensure that identity details conform with those requested by the relevant person.", "37. NI contributions are made by way of deduction from an employee's pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). Employers at present will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee.", "38. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA4180 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS.", "2. State pensions", "39. A male-to-female transsexual is currently entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. A full pension will be payable only if she has made contributions for 44 years as opposed to the 39 years required of women.", "40. A person's sex for the purposes of pensionable age is determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases:", "In the case entitled R(P) 2/80, a male-to-female transsexual claimed entitlement to a pensionable age of 60. The Commissioner dismissed the claimant's appeal and stated at paragraph 9 of his decision:", "“(a) In my view, the word “woman” in section 27 of the Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman.", "(b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his national insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted. ...", "(d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.”", "41. The Government have instituted plans to eradicate the difference between men and women concerning age of entitlement to State pensions. Equalisation of the pension age is to begin in 2010 and it is anticipated that by 2020 the transition will be complete. As regards the issue of free bus passes in London, which also differentiated between men and women concerning age of eligibility (65 and 60 respectively), the Government have also announced plans to introduce a uniform age.", "3. Employment", "42. Under section 16(1) of the Theft Act 1968, it is a criminal offence liable to a sentence of imprisonment to dishonestly obtain a pecuniary advantage by deception. Pecuniary advantage includes, under section 16(2)(c), being given the opportunity to earn remuneration in employment. Should a post-operative transsexual be asked by a prospective employer to disclose all their previous names, but fail to make full disclosure before entering into a contract of employment, an offence might be committed. Furthermore, should the employer discover the lack of full disclosure, there might also be a risk of dismissal or an action by the employer for damages.", "43. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and, accordingly, Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that", "“... where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.", "To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22)", "44. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 ( Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports).", "45. The Sexual Discrimination (Gender Re-assignment) Regulations 1999 were issued to comply with the ruling of the European Court of Justice in P. v. S. and Cornwall County Council (30 April 1996). This provides generally that transsexual persons should not be treated less favourably in employment because they are transsexual (whether pre- or post-operative).", "E. Rape", "46. Prior to 1994, for the purposes of the law of rape, a male-to-female transsexual would have been regarded as a male. Pursuant to section 142 of the Criminal Justice and Public Order Act 1994, for rape to be established there has to be “vaginal or anal intercourse with a person”. In a judgment of 28 October 1996, the Reading Crown Court found that penile penetration of a male to female transsexual's artificially constructed vagina amounted to rape: R. v. Matthews (unreported).", "F. Imprisonment", "47. Prison rules require that male and female prisoners shall normally be detained separately and also that no prisoner shall be stripped and searched in the sight of a person of the opposite sex (Rules 12(1) and 41(3) of the Prison Rules 1999 respectively).", "48. According to the Report of the Working Group on Transsexual People (Home Office April 2000, see further below, paragraphs 49-50), which conducted a review of law and practice, post-operative transsexuals where possible were allocated to an establishment for prisoners of their new gender. Detailed guidelines concerning the searching of transsexual prisoners were under consideration by which post-operative male to female transsexuals would be treated as women for the purposes of searches and searched only by women (see paragraphs 2.75-2.76).", "G. Current developments", "1. Review of the situation of transsexuals in the United Kingdom", "49. On 14 April 1999, the Secretary of State for the Home Department announced the establishment of an Interdepartmental Working Group on Transsexual People with the following terms of reference:", "“to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexuals, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue.”", "50. The Working Group produced a report in April 2000 in which it examined the current position of transsexuals in the United Kingdom, with particular reference to their status under national law and the changes which might be made. It concluded:", "“5.1. Transsexual people deal with their condition in different ways. Some live in the opposite sex without any treatment to acquire its physical attributes. Others take hormones so as to obtain some of the secondary characteristics of their chosen sex. A smaller number will undergo surgical procedures to make their bodies resemble, so far as possible, those of their acquired gender. The extent of treatment may be determined by individual choice, or by other factors such as health or financial resources. Many people revert to their biological sex after living for some time in the opposite sex, and some alternate between the two sexes throughout their lives. Consideration of the way forward must therefore take into account the needs of people at these different stages of change.", "5.2. Measures have already been taken in a number of areas to assist transsexual people. For example, discrimination in employment against people on the basis of their transsexuality has been prohibited by the Sex Discrimination (Gender Reassignment) Regulations 1999 which, with few exceptions, provide that a transsexual person (whether pre- or post-operative) should not be treated less favourably because they are transsexual. The criminal justice system (i.e. the police, prisons, courts, etc.) try to accommodate the needs of transsexual people so far as is possible within operational constraints. A transsexual offender will normally be charged in their acquired gender, and a post-operative prisoner will usually be sent to a prison appropriate to their new status. Transsexual victims and witnesses will, in most circumstances, similarly be treated as belonging to their acquired gender.", "5.3. In addition, official documents will often be issued in the acquired gender where the issue is identifying the individual rather than legal status. Thus, a transsexual person may obtain a passport, driving licence, medical card etc, in their new gender. We understand that many non-governmental bodies, such as examination authorities, will often re-issue examination certificates etc. (or otherwise provide evidence of qualifications) showing the required gender. We also found that at least one insurance company will issue policies to transsexual people in their acquired gender.", "5.4. Notwithstanding such provisions, transsexual people are conscious of certain problems which do not have to be faced by the majority of the population. Submissions to the Group suggested that the principal areas where the transsexual community is seeking change are birth certificates, the right to marry and full recognition of their new gender for all legal purposes.", "5.5. We have identified three options for the future;", "– to leave the current situation unchanged;", "– to issue birth certificates showing the new name and, possibly, the new gender;", "– to grant full legal recognition of the new gender subject to certain criteria and procedures.", "We suggest that before taking a view on these options the Government may wish to put the issues out to public consultation.”", "51. The report was presented to Parliament in July 2000. Copies were placed in the libraries of both Houses of Parliament and sent to 280 recipients, including Working Group members, Government officials, Members of Parliament, individuals and organisations. It was publicised by a Home Office press notice and made available to members of the public through application to the Home Office in writing, E-mail, by telephone or the Home Office web site.", "2. Recent domestic case-law", "52. In the case of Bellinger v. Bellinger, EWCA Civ 1140 [2001], 3 FCR 1, the appellant who had been classified at birth as a man had undergone gender re-assignment surgery and in 1981 had gone through a form of marriage with a man who was aware of her background. She sought a declaration under the Family Law Act 1986 that the marriage was valid. The Court of Appeal held, by a majority, that the appellant's marriage was invalid as the parties were not respectively male and female, which terms were to be determined by biological criteria as set out in the decision of Corbett v. Corbett [1971]. Although it was noted that there was an increasing emphasis upon the impact of psychological factors on gender, there was no clear point at which such factors could be said to have effected a change of gender. A person correctly registered as male at birth, who had undergone gender reassignment surgery and was now living as a woman was biologically a male and therefore could not be defined as female for the purposes of marriage. It was for Parliament, not for the courts, to decide at what point it would be appropriate to recognise that a person who had been assigned to one sex at birth had changed gender for the purposes of marriage. Dame Elizabeth Butler- Sloss, President of the Family Division noted the warnings of the European Court of Human Rights about continued lack of response to the situation of transsexuals and observed that largely as a result of these criticisms an interdepartmental working group had been set up, which had in April 2000 issued a careful and comprehensive review of the medical condition, current practice in other countries and the state of English law in relevant aspects of the life of an individual:", "“[95.] ... We inquired of Mr Moylan on behalf of the Attorney-General, what steps were being taken by any government department, to take forward any of the recommendations of the Report, or to prepare a consultation paper for public discussion.", "[96.] To our dismay, we were informed that no steps whatsoever have been, or to the knowledge of Mr Moylan, were intended to be, taken to carry this matter forward. It appears, therefore, that the commissioning and completion of the report is the sum of the activity on the problems identified both by the Home Secretary in his terms of reference, and by the conclusions of the members of the working group. That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across western Europe which have been set out so clearly and strongly in judgments of Members of the European Court at Strasbourg, and which in our view need to be addressed by the UK...", "[109.] We would add however, with the strictures of the European Court of Human Rights well in mind, that there is no doubt that the profoundly unsatisfactory nature of the present position and the plight of transsexuals requires careful consideration. The recommendation of the interdepartmental working group for public consultation merits action by the government departments involved in these issues. The problems will not go away and may well come again before the European Court sooner rather than later.”", "53. In his dissenting judgment, Lord Justice Thorpe considered that the foundations of the judgment in Corbett v. Corbett were no longer secure, taking the view that an approach restricted to biological criteria was no longer permissible in the light of scientific, medical and social change.", "“[155.] To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other than by scientific test. It makes no contribution to the physiological or psychological self. Indeed in the context of the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seem right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth...", "[160.] The present claim lies most evidently in the territory of the family justice system. That system must always be sufficiently flexible to accommodate social change. It must also be humane and swift to recognise the right to human dignity and to freedom of choice in the individual's private life. One of the objectives of statute law reform in this field must be to ensure that the law reacts to and reflects social change. That must also be an objective of the judges in this field in the construction of existing statutory provisions. I am strongly of the opinion that there are not sufficiently compelling reasons, having regard to the interests of others affected or, more relevantly, the interests of society as a whole, to deny this appellant legal recognition of her marriage. I would have allowed this appeal.”", "He also noted the lack of progress in domestic reforms:", "“[151.] ...although the [interdepartmental] report has been made available by publication, Mr Moylan said that there has since been no public consultation. Furthermore when asked whether the Government had any present intention of initiating public consultation or any other process in preparation for a parliamentary Bill, Mr Moylan said that he had no instructions. Nor did he have any instructions as to whether the Government intended to legislate. My experience over the last 10 years suggests how hard it is for any department to gain a slot for family law reform by primary legislation. These circumstances reinforce my view that it is not only open to the court but it is its duty to construe s 11(c) either strictly, alternatively liberally as the evidence and the submissions in this case justify.”", "3. Proposals to reform the system of registration of births, marriages and deaths", "54. In January 2002, the Government presented to Parliament the document “Civil Registration: Vital Change (Birth, Marriage and Death Registration in the 21 st Century)” which set out plans for creating a central database of registration records which moves away from a traditional snapshot of life events towards the concept of a living record or single “through life” record:", "“In time, updating the information in a birth record will mean that changes to a person's names, and potentially, sex will be able to be recorded.” ( para. 5.1)", "“5.5 Making changes", "There is strong support for some relaxation to the rules that govern corrections to the records. Currently, once a record has been created, the only corrections that can be made are where it can be shown that an error was made at the time of registration and that this can be established. Correcting even the simplest spelling error requires formal procedures and the examination of appropriate evidence. The final records contains the full original and corrected information which is shown on subsequently issued certificates. The Government recognises that this can act as a disincentive. In future, changes (to reflect developments after the original record was made) will be made and formally recorded. Documents issued from the records will contain only the information as amended, though all the information will be retained. ...”", "H. Liberty's third party intervention", "55. Liberty updated the written observations submitted in the case of Sheffield and Horsham concerning the legal recognition of transsexuals in comparative law (Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, p. 2021, § 35). In its 1998 study, it had found that over the previous decade there had been an unmistakable trend in the member States of the Council of Europe towards giving full legal recognition to gender re-assignment. In particular, it noted that out of thirty seven countries analysed only four (including the United Kingdom) did not permit a change to be made to a person's birth certificate in one form or another to reflect the re-assigned sex of that person. In cases where gender re-assignment was legal and publicly funded, only the United Kingdom and Ireland did not give full legal recognition to the new gender identity.", "56. In its follow up study submitted on 17 January 2002, Liberty noted that while there had not been a statistical increase in States giving full legal recognition of gender re-assignment within Europe, information from outside Europe showed developments in this direction. For example, there had been statutory recognition of gender re-assignment in Singapore, and a similar pattern of recognition in Canada, South Africa, Israel, Australia, New Zealand and all except two of the States of the United States of America. It cited in particular the cases of Attorney-General v. Otahuhu Family Court [1995] 1 NZLR 60 and Re Kevin [2001] FamCA 1074 where in New Zealand and Australia transsexual persons' assigned sex was recognised for the purposes of validating their marriages: In the latter case, Mr Justice Chisholm held:", "“I see no basis in legal principle or policy why Australian law should follow the decision in Corbett. To do so would, I think, create indefensible inconsistencies between Australian marriage law and other Australian laws. It would take the law in a direction that is generally contrary to development in other countries. It would perpetuate a view that flies in the face of current medical understanding and practice. Most of all, it would impose indefensible suffering on people who have already had more than their share of difficulty, with no benefit to society...", "...Because the words 'man' and 'woman' have their ordinary contemporary meaning, there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage. That is, it cannot be said as a matter of law that the question in a particular case will be determined by applying a single criterion, or limited list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals (whether at birth or at some other time). Similarly, it would be wrong in law to say that the question can be resolved by reference solely to the person's psychological state, or by identifying the person's 'brain sex'.", "To determine a person's sex for the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she was brought up and the person's attitude to it; the person's self-perception as a man or a woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex re-assignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage...", "For the purpose of ascertaining the validity of a marriage under Australian law the question whether a person is a man or a woman is to be determined as of the date of marriage...”", "57. As regarded the eligibility of post-operative transsexuals to marry a person of sex opposite to their acquired gender, Liberty's survey indicated that 54% of Contracting States permitted such marriage (Annex 6 listed Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Slovakia, Spain, Sweden, Switzerland, Turkey and Ukraine), while 14% did not (Ireland and the United Kingdom did not permit marriage, while no legislation existed in Moldova, Poland, Romania and Russia). The legal position in the remaining 32% was unclear.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "59. The applicant claims a violation of Article 8 of the Convention, the relevant part of which provides as follows:", "“1. Everyone has the right to respect for his private ... life...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicant", "60. The applicant submitted that despite warnings from the Court as to the importance for keeping under review the need for legal reform the Government had still not taken any constructive steps to address the suffering and distress experienced by the applicant and other post-operative transsexuals. The lack of legal recognition of her changed gender had been the cause of numerous discriminatory and humiliating experiences in her everyday life. In the past, in particular from 1990 to 1992, she was abused at work and did not receive proper protection against discrimination. She claimed that all the special procedures through which she had to go in respect of her NI contributions and State retirement pension constituted in themselves an unjustified difference in treatment, as they would have been unnecessary had she been recognised as a woman for legal purposes. In particular, the very fact that the DSS operated a policy of marking the records of transsexuals as sensitive was a difference in treatment. As a result, for example, the applicant cannot attend the DSS without having to make a special appointment.", "61. The applicant further submitted that the danger of her employer learning about her past identity was real. It was possible for the employer to trace back her employment history on the basis of her NI number and this had in fact happened. She claimed that her recent failure to obtain a promotion was the result of the employer realising her status.", "62. As regarded pensionable age, the applicant submitted that she had worked for 44 years and that the refusal of her entitlement to a State retirement pension at the age of 60 on the basis of the pure biological test for determining sex was contrary to Article 8 of the Convention. She was similarly unable to apply for a free London bus pass at the age of 60 as other women were but had to wait until the age of 65. She was also required to declare her birth sex or disclose her birth certificate when applying for life insurance, mortgages, private pensions or car insurance, which led her not to pursue these possibilities to her advantage.", "63. The applicant argued that rapid changes, in respect of the scientific understanding of, and the social attitude towards, transsexualism were taking place not only across Europe but elsewhere. She referred, inter alia, to Article 29 of the Netherlands Civil Code, Article 6 of Law No. 164 of 14 April 1982 of Italy, and Article 29 of the Civil Code of Turkey as amended by Law No. 3444 of 4 May 1988, which allowed the amendment of civil status. Also, under a 1995 New Zealand statute, Part V, Section 28, a court could order the legal recognition of the changed gender of a transsexual after examination of medical and other evidence. The applicant saw no convincing reason why a similar approach should not be adopted in the United Kingdom. The applicant also pointed to increasing social acceptance of transsexuals and interest in issues of concern to them reflected by coverage in the press, radio and television, including sympathetic dramatisation of transsexual characters in mainstream programming.", "2. The Government", "64. Referring to the Court's case-law, the Government maintained that there was no generally accepted approach among the Contracting States in respect of transsexuality and that, in view of the margin of appreciation left to States under the Convention, the lack of recognition in the United Kingdom of the applicant's new gender identity for legal purposes did not entail a violation of Article 8 of the Convention. They disputed the applicant's assertion that scientific research and “massive societal changes” had led to wide acceptance, or consensus on issues, of transsexualism.", "65. The Government accepted that there may be specific instances where the refusal to grant legal recognition of a transsexual's new sexual identity may amount to a breach of Article 8, in particular where the transsexual as a result suffered practical and actual detriment and humiliation on a daily basis (see the B. v. France judgment of 25 March 1992, Series A no. 232-C, pp. 52-54, §§ 59-63). However, they denied that the applicant faced any comparable practical disadvantages, as she had been able inter alia to obtain important identification documents showing her chosen names and sexual identity (e.g. new passport and driving licence).", "66. As regards the specific difficulties claimed by the applicant, the Government submitted that an employer was unable to establish the sex of the applicant from the NI number itself since it did not contain any encoded reference to her sex. The applicant had been issued with a new NI card with her changed name and style of address. Furthermore, the DSS had a policy of confidentiality of the personal details of a NI number holder and, in particular, a policy and procedure for the special protection of transsexuals. As a result, an employer had no means of lawfully obtaining information from the DSS about the previous sexual identity of an employee. It was also in their view highly unlikely that the applicant's employer would discover her change of gender through her NI number in any other way. The refusal to issue a new NI number was justified, the uniqueness of the NI number being of critical importance in the administration of the national insurance system, and for the prevention of the fraudulent use of old NI numbers.", "67. The Government argued that the applicant's fear that her previous sexual identity would be revealed upon reaching the age of 60, when her employer would no longer be required to make NI contribution deductions from her pay, was entirely without foundation, the applicant having already been issued with a suitable Age Exemption Certificate on Form CF384.", "68. Concerning the impossibility for the applicant to obtain a State retirement pension at the age of 60, the Government submitted that the distinction between men and women as regarded pension age had been held to be compatible with European Community law (Article 7(1)(a) of Directive 79/7/EEC; European Court of Justice, R. v. Secretary of State for Social Security ex parte Equal Opportunities Commission Case C-9/91 [1992] ECR I-4927). Also, since the preserving of the applicant's legal status as a man was not contrary as such to Article 8 of the Convention, it would constitute favourable treatment unfair to the general public to allow the applicant's pension entitlement at the age of 60.", "69. Finally, as regards allegations of assault and abuse at work, the Government submitted that the applicant could have pressed charges under the criminal law against harassment and assault. Harassment in the workplace on the grounds of transsexuality would also give rise to a claim under the Sex Discrimination Act 1975 where the employers knew of the harassment and took no steps to prevent it. Adequate protection was therefore available under domestic law.", "70. The Government submitted that a fair balance had therefore been struck between the rights of the individual and the general interest of the community. To the extent that there were situations where a transsexual may face limited disclosure of their change of sex, these situations were unavoidable and necessary e.g. in the context of contracts of insurance where medical history and gender affected the calculation of premiums.", "B. The Court's assessment", "1. Preliminary considerations", "71. This case raises the issue whether or not the respondent State has failed to comply with a positive obligation to ensure the right of the applicant, a post-operative male to female transsexual, to respect for her private life, in particular through the lack of legal recognition given to her gender re-assignment.", "72. The Court recalls that the notion of “respect” as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention. In determining whether or not a positive obligation exists, regard must also be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention ( Cossey v. the United Kingdom judgment of 27 September 1990, Series A no. 184, p. 15, § 37).", "73. The Court recalls that it has already examined complaints about the position of transsexuals in the United Kingdom (see the Rees v. the United Kingdom judgment of 17 October 1986, Series A no. 106, the Cossey v. the United Kingdom judgment, cited above; the X., Y. and Z. v. the United Kingdom judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, and the Sheffield and Horsham v. the United Kingdom judgment of 30 July 1998, Reports 1998-V, p. 2011). In those cases, it held that the refusal of the United Kingdom Government to alter the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual could not be considered as an interference with the right to respect for private life (the above-mentioned Rees judgment, p. 14, § 35, and Cossey judgment, p. 15, § 36). It also held that there was no positive obligation on the Government to alter their existing system for the registration of births by establishing a new system or type of documentation to provide proof of current civil status. Similarly, there was no duty on the Government to permit annotations to the existing register of births, or to keep any such annotation secret from third parties (the above-mentioned Rees judgment, p. 17, § 42, and Cossey judgment, p. 15, §§ 38-39). It was found in those cases that the authorities had taken steps to minimise intrusive enquiries (for example, by allowing transsexuals to be issued with driving licences, passports and other types of documents in their new name and gender). Nor had it been shown that the failure to accord general legal recognition of the change of gender had given rise in the applicants' own case histories to detriment of sufficient seriousness to override the respondent State's margin of appreciation in this area (the Sheffield and Horsham judgment cited above, p. 2028-29, § 59).", "74. While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I, § 70). However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the standards to be achieved (see, amongst other authorities, the Cossey judgment, p. 14, § 35, and Stafford v. the United Kingdom [GC], no. 46295/99, judgment of 28 May 2002, to be published in ECHR 2002-, §§ 67-68). It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement (see the above-cited Stafford v. the United Kingdom judgment, § 68). In the present context the Court has, on several occasions since 1986, signalled its consciousness of the serious problems facing transsexuals and stressed the importance of keeping the need for appropriate legal measures in this area under review (see the Rees judgment, § 47; the Cossey judgment, § 42; the Sheffield and Horsham judgment, § 60).", "75. The Court proposes therefore to look at the situation within and outside the Contracting State to assess “in the light of present-day conditions” what is now the appropriate interpretation and application of the Convention (see the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, § 31, and subsequent case-law).", "2. The applicant's situation as a transsexual", "76. The Court observes that the applicant, registered at birth as male, has undergone gender re-assignment surgery and lives in society as a female. Nonetheless, the applicant remains, for legal purposes, a male. This has had, and continues to have, effects on the applicant's life where sex is of legal relevance and distinctions are made between men and women, as, inter alia, in the area of pensions and retirement age. For example, the applicant must continue to pay national insurance contributions until the age of 65 due to her legal status as male. However as she is employed in her gender identity as a female, she has had to obtain an exemption certificate which allows the payments from her employer to stop while she continues to make such payments herself. Though the Government submitted that this made due allowance for the difficulties of her position, the Court would note that she nonetheless has to make use of a special procedure that might in itself call attention to her status.", "77. It must also be recognised that serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see, mutatis mutandis, Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, § 41). The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality. A conflict between social reality and law arises which places the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety.", "78. In this case, as in many others, the applicant's gender re-assignment was carried out by the national health service, which recognises the condition of gender dysphoria and provides, inter alia, re-assignment by surgery, with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs. The Court is struck by the fact that nonetheless the gender re-assignment which is lawfully provided is not met with full recognition in law, which might be regarded as the final and culminating step in the long and difficult process of transformation which the transsexual has undergone. The coherence of the administrative and legal practices within the domestic system must be regarded as an important factor in the assessment carried out under Article 8 of the Convention. Where a State has authorised the treatment and surgery alleviating the condition of a transsexual, financed or assisted in financing the operations and indeed permits the artificial insemination of a woman living with a female-to-male transsexual (as demonstrated in the case of X., Y. and Z. v. the United Kingdom, cited above), it appears illogical to refuse to recognise the legal implications of the result to which the treatment leads.", "79. The Court notes that the unsatisfactory nature of the current position and plight of transsexuals in the United Kingdom has been acknowledged in the domestic courts (see Bellinger v. Bellinger, cited above, paragraph 52) and by the Interdepartmental Working Group which surveyed the situation in the United Kingdom and concluded that, notwithstanding the accommodations reached in practice, transsexual people were conscious of certain problems which did not have to be faced by the majority of the population (paragraph 50 above).", "80. Against these considerations, the Court has examined the countervailing arguments of a public interest nature put forward as justifying the continuation of the present situation. It observes that in the previous United Kingdom cases weight was given to medical and scientific considerations, the state of any European and international consensus and the impact of any changes to the current birth register system.", "3. Medical and scientific considerations", "81. It remains the case that there are no conclusive findings as to the cause of transsexualism and, in particular, whether it is wholly psychological or associated with physical differentiation in the brain. The expert evidence in the domestic case of Bellinger v. Bellinger was found to indicate a growing acceptance of findings of sexual differences in the brain that are determined pre- natally, though scientific proof for the theory was far from complete. The Court considers it more significant however that transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief (for example, the Diagnostic and Statistical Manual fourth edition (DSM-IV) replaced the diagnosis of transsexualism with “gender identity disorder”; see also the International Classification of Diseases, tenth edition (ICD-10)). The United Kingdom national health service, in common with the vast majority of Contracting States, acknowledges the existence of the condition and provides or permits treatment, including irreversible surgery. The medical and surgical acts which in this case rendered the gender re-assignment possible were indeed carried out under the supervision of the national health authorities. Nor, given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role, can it be suggested that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment. In those circumstances, the ongoing scientific and medical debate as to the exact causes of the condition is of diminished relevance.", "82. While it also remains the case that a transsexual cannot acquire all the biological characteristics of the assigned sex (Sheffield and Horsham, cited above, p. 2028, § 56), the Court notes that with increasingly sophisticated surgery and types of hormonal treatments, the principal unchanging biological aspect of gender identity is the chromosomal element. It is known however that chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where the biological criteria at birth are not congruent) and in those cases, some persons have to be assigned to one sex or the other as seems most appropriate in the circumstances of the individual case. It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals (see the dissenting opinion of Thorpe LJ in Bellinger v. Bellinger cited in paragraph 52 above; and the judgment of Chisholm J in the Australian case, Re Kevin, cited in paragraph 55 above).", "83. The Court is not persuaded therefore that the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals.", "4. The state of any European and international consensus", "84. Already at the time of the Sheffield and Horsham case, there was an emerging consensus within Contracting States in the Council of Europe on providing legal recognition following gender re-assignment (see § 35 of that judgment ). The latest survey submitted by Liberty in the present case shows a continuing international trend towards legal recognition (see paragraphs 55-56 above). In Australia and New Zealand, it appears that the courts are moving away from the biological birth view of sex (as set out in the United Kingdom case of Corbett v. Corbett ) and taking the view that sex, in the context of a transsexual wishing to marry, should depend on a multitude of factors to be assessed at the time of the marriage.", "85. The Court observes that in the case of Rees in 1986 it had noted that little common ground existed between States, some of which did permit change of gender and some of which did not and that generally speaking the law seemed to be in a state of transition (see § 37). In the later case of Sheffield and Horsham, the Court's judgment laid emphasis on the lack of a common European approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection. While this would appear to remain the case, the lack of such a common approach among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising. In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation. The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.", "5. Impact on the birth register system", "86. In the Rees case, the Court allowed that great importance could be placed by the Government on the historical nature of the birth record system. The argument that allowing exceptions to this system would undermine its function weighed heavily in the assessment.", "87. It may be noted however that exceptions are already made to the historic basis of the birth register system, namely, in the case of legitimisation or adoptions, where there is a possibility of issuing updated certificates to reflect a change in status after birth. To make a further exception in the case of transsexuals (a category estimated as including some 2,000-5,000 persons in the United Kingdom according to the Interdepartmental Working Group Report, p. 26) would not, in the Court's view, pose the threat of overturning the entire system. Though previous reference has been made to detriment suffered by third parties who might be unable to obtain access to the original entries and to complications occurring in the field of family and succession law (see the Rees judgment, p. 18, § 43), these assertions are framed in general terms and the Court does not find, on the basis of the material before it at this time, that any real prospect of prejudice has been identified as likely to arise if changes were made to the current system.", "88. Furthermore, the Court notes that the Government have recently issued proposals for reform which would allow ongoing amendment to civil status data (see paragraph 54). It is not convinced therefore that the need to uphold rigidly the integrity of the historic basis of the birth registration system takes on the same importance in the current climate as it did in 1986.", "6. Striking a balance in the present case", "89. The Court has noted above (paragraphs 76-79) the difficulties and anomalies of the applicant's situation as a post-operative transsexual. It must be acknowledged that the level of daily interference suffered by the applicant in B. v. France ( judgment of 25 March 1992, Series A no. 232) has not been attained in this case and that on certain points the risk of difficulties or embarrassment faced by the present applicant may be avoided or minimised by the practices adopted by the authorities.", "90. Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, judgment of 29 April 2002, § 62, and Mikulić v. Croatia, no. 53176/99, judgment of 7 February 2002, § 53, both to be published in ECHR 2002-...). In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable. Domestic recognition of this evaluation may be found in the report of the Interdepartmental Working Group and the Court of Appeal's judgment of Bellinger v. Bellinger (see paragraphs 50, 52-53).", "91. The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures. As Lord Justice Thorpe observed in the Bellinger case, any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court convinced by arguments that allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, would cause any injustice to others in the national insurance and state pension systems as alleged by the Government. No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.", "92. In the previous cases from the United Kingdom, this Court has since 1986 emphasised the importance of keeping the need for appropriate legal measures under review having regard to scientific and societal developments (see references at paragraph 73). Most recently in the Sheffield and Horsham case in 1998, it observed that the respondent State had not yet taken any steps to do so despite an increase in the social acceptance of the phenomenon of transsexualism and a growing recognition of the problems with which transsexuals are confronted (cited above, paragraph 60). Even though it found no violation in that case, the need to keep this area under review was expressly re-iterated. Since then, a report has been issued in April 2000 by the Interdepartmental Working Group which set out a survey of the current position of transsexuals in inter alia criminal law, family and employment matters and identified various options for reform. Nothing has effectively been done to further these proposals and in July 2001 the Court of Appeal noted that there were no plans to do so (see paragraphs 52-53). It may be observed that the only legislative reform of note, applying certain non-discrimination provisions to transsexuals, flowed from a decision of the European Court of Justice of 30 April 1996 which held that discrimination based on a change of gender was equivalent to discrimination on grounds of sex (see paragraphs 43-45 above).", "93. Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION", "94. The applicant also claimed a violation of Article 12 of the Convention, which provides as follows:", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”", "A. Arguments of the parties", "1. The applicant", "95. The applicant complained that although she currently enjoyed a full physical relationship with a man, she and her partner could not marry because the law treated her as a man. She argued that the Corbett v. Corbett definition of a person's sex for the purpose of marriage had been shown no longer to be sufficient in the recent case of Bellinger v. Bellinger and that even if a reliance on biological criteria remained acceptable, it was a breach of Article 12 to use only some of those criteria for determining a person's sex and excluding those who failed to fulfil those elements.", "2. The Government", "96. The Government referred to the Court's previous case-law (the above-cited Rees, Cossey and Sheffield and Horsham judgments ) and maintained that neither Article 12 nor Article 8 of the Convention required a State to permit a transsexual to marry a person of his or her original sex. They also pointed out that the domestic law approach had been recently reviewed and upheld by the Court of Appeal in Bellinger v. Bellinger, the matter now pending before the House of Lords. In their view, if any change in this important or sensitive area were to be made, it should come from the United Kingdom's own courts acting within the margin of appreciation which this Court has always afforded. They also referred to the fact that any change brought the possibility of unwanted consequences, submitting that legal recognition would potentially invalidate existing marriages and leave transsexuals and their partners in same-sex marriages. They emphasised the importance of proper and careful review of any changes in this area and the need for transitional provisions.", "B. The Court's assessment", "97. The Court recalls that in the cases of Rees, Cossey and Sheffield and Horsham the inability of the transsexuals in those cases to marry a person of the sex opposite to their re-assigned gender was not found in breach of Article 12 of the Convention. These findings were based variously on the reasoning that the right to marry referred to traditional marriage between persons of opposite biological sex (the Rees judgment, p. 19, § 49), the view that continued adoption of biological criteria in domestic law for determining a person's sex for the purpose of marriage was encompassed within the power of Contracting States to regulate by national law the exercise of the right to marry and the conclusion that national laws in that respect could not be regarded as restricting or reducing the right of a transsexual to marry in such a way or to such an extent that the very essence of the right was impaired (the Cossey judgment, p. 18, §§ 44-46, the Sheffield and Horsham judgment, p. 2030, §§ 66-67). Reference was also made to the wording of Article 12 as protecting marriage as the basis of the family (Rees, loc. cit .).", "98. Reviewing the situation in 2002, the Court observes that Article 12 secures the fundamental right of a man and woman to marry and to found a family. The second aspect is not however a condition of the first and the inability of any couple to conceive or parent a child cannot be regarded as per se removing their right to enjoy the first limb of this provision.", "99. The exercise of the right to marry gives rise to social, personal and legal consequences. It is subject to the national laws of the Contracting States but the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired (see the Rees judgment, p. 19, § 50; the F. v. Switzerland judgment of 18 December 1987, Series A no. 128, § 32).", "100. It is true that the first sentence refers in express terms to the right of a man and woman to marry. The Court is not persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria (as held by Ormrod J. in the case of Corbett v. Corbett, paragraph 21 above). There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court has found above, under Article 8 of the Convention, that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender. The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women (see paragraph 58 above).", "101. The right under Article 8 to respect for private life does not however subsume all the issues under Article 12, where conditions imposed by national laws are accorded a specific mention. The Court has therefore considered whether the allocation of sex in national law to that registered at birth is a limitation impairing the very essence of the right to marry in this case. In that regard, it finds that it is artificial to assert that post-operative transsexuals have not been deprived of the right to marry as, according to law, they remain able to marry a person of their former opposite sex. The applicant in this case lives as a woman, is in a relationship with a man and would only wish to marry a man. She has no possibility of doing so. In the Court's view, she may therefore claim that the very essence of her right to marry has been infringed.", "102. The Court has not identified any other reason which would prevent it from reaching this conclusion. The Government have argued that in this sensitive area eligibility for marriage under national law should be left to the domestic courts within the State's margin of appreciation, adverting to the potential impact on already existing marriages in which a transsexual is a partner. It appears however from the opinions of the majority of the Court of Appeal judgment in Bellinger v. Bellinger that the domestic courts tend to the view that the matter is best handled by the legislature, while the Government have no present intention to introduce legislation (see paragraphs 52-53).", "103. It may be noted from the materials submitted by Liberty that though there is widespread acceptance of the marriage of transsexuals, fewer countries permit the marriage of transsexuals in their assigned gender than recognise the change of gender itself. The Court is not persuaded however that this supports an argument for leaving the matter entirely to the Contracting States as being within their margin of appreciation. This would be tantamount to finding that the range of options open to a Contracting State included an effective bar on any exercise of the right to marry. The margin of appreciation cannot extend so far. While it is for the Contracting State to determine inter alia the conditions under which a person claiming legal recognition as a transsexual establishes that gender re-assignment has been properly effected or under which past marriages cease to be valid and the formalities applicable to future marriages (including, for example, the information to be furnished to intended spouses), the Court finds no justification for barring the transsexual from enjoying the right to marry under any circumstances.", "104. The Court concludes that there has been a breach of Article 12 of the Convention in the present case.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "105. The applicant also claimed a violation of Article 14 of the Convention, which provides as follows:", "“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "106. The applicant complained that the lack of legal recognition of her changed gender was the cause of numerous discriminatory experiences and prejudices. She referred in particular to the fact that she could not claim her State pension until she was 65 and to the fact that she could not claim a “freedom pass” to give her free travel in London, a privilege which women were allowed to enjoy from the age 60 and men from the age of 65.", "107. The Government submitted that no issues arose which were different from those addressed under Article 8 of the Convention and that the complaints failed to disclose any discrimination contrary to the above provision.", "108. The Court considers that the lack of legal recognition of the change of gender of a post-operative transsexual lies at the heart of the applicant's complaints under Article 14 of the Convention. These issues have been examined under Article 8 and resulted in the finding of a violation of that provision. In the circumstances, the Court considers that no separate issue arises under Article 14 of the Convention and makes no separate finding.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "109. The applicant claimed a violation of Article 13 of the Convention, which provides as follows:", "“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "110. The applicant complained that she had no effective remedy available to her in respect of the matters complained of above.", "111. The Government submitted that no arguable breach of any Convention right arose to engage the right to a remedy under Article 13. In any event, since 2 October 2000 when the Human Rights Act 1998 came into force, the Convention rights could be relied on in national courts and the applicant would now have a remedy in a national court for any breach of a Convention right.", "112. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Its effect is to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, amongst other authorities, the Aksoy v. Turkey judgment of 25 September 1996, Reports 1996-VI, p. 2286, § 95).", "113. Having found above that there have been violations of Articles 8 and 12 of the Convention, the applicant's complaints in this regard are without doubt arguable for the purposes of Article 13 of the Convention. The case-law of the Convention institutions indicates, however, that Article 13 cannot be interpreted as requiring a remedy against the state of domestic law, as otherwise the Court would be imposing on Contracting States a requirement to incorporate the Convention (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 48, § 86). Insofar therefore as no remedy existed in domestic law prior to 2 October 2000 when the Human Rights Act 1998 took effect, the applicant's complaints fall foul of this principle. Following that date, it would have been possible for the applicant to raise her complaints before the domestic courts, which would have had a range of possible redress available to them.", "114. The Court finds in the circumstances no breach of Article 13 of the Convention in the present case.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "115. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "116. The applicant claimed pecuniary damage of a total of 38,200 pounds sterling (GBP). This represented a sum of GBP 31,200 in respect of the pension which she had been unable to claim at age 60 and GBP 7,000 as the estimated value of the pensioner's bus pass which she had not been eligible to obtain. The applicant also claimed for non-pecuniary damage the sum of GBP 40,000 in respect of distress, anxiety and humiliation.", "117. The Government submitted that were the Court to find any breach of the Convention this finding would of itself be sufficient just satisfaction for the purposes of Article 41 of the Convention.", "118. The Court recalls that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings or other sources of income (see, amongst other authorities, the Barberà, Messegué and Jabardo v. Spain judgment of 13 June 1994 (Article 50), Series A no. 285-C, pp. 57-58, §§ 16-20; the Cakıcı v. Turkey judgment of 8 July 1999, Reports 1999-IV, § 127).", "119. The Court observes that the applicant was unable to retire at age 60 as other female employees were entitled and to obtain a state pension or to claim a bus pass for free travel. The degree of financial detriment suffered as a result, if any, is not clear-cut however as the applicant, though perhaps not by choice, continued to work and to enjoy a salary as a result. While it has adverted above to the difficulties and stresses of the applicant's position as a post-operative transsexual, it would note that over the period until 1998 similar issues were found to fall within the United Kingdom's margin of appreciation and that no breach arose.", "120. The Court has found that the situation, as it has evolved, no longer falls within the United Kingdom's margin of appreciation. It will be for the United Kingdom Government in due course to implement such measures as it considers appropriate to fulfil its obligations to secure the applicant's, and other transsexuals', right to respect for private life and right to marry in compliance with this judgment. While there is no doubt that the applicant has suffered distress and anxiety in the past, it is the lack of legal recognition of the gender re-assignment of post-operative transsexuals which lies at the heart of the complaints in this application, the latest in a succession of cases by other applicants raising the same issues. The Court does not find it appropriate therefore to make an award to this particular applicant. The finding of violation, with the consequences which will ensue for the future, may in these circumstances be regarded as constituting just satisfaction.", "B. Costs and expenses", "121. The applicant claims for legal costs and expenses GBP 17,000 for solicitors' fees and GBP 24,550 for the fees of senior and junior counsel. Costs of travel to the Court hearing, together with accommodation and other related expenses were claimed in the sum of GBP 2,822. This made a total of GBP 44,372.", "122. The Government submitted that the sum appeared excessive in comparison to other cases from the United Kingdom and in particular as regarded the amount of GBP 39,000 claimed in respect of the relatively recent period during which the applicant's current solicitors have been instructed which would only relate to the consolidated observations and the hearing before the Court.", "123. The Court finds that the sums claimed by the applicant for legal costs and expenses, for which no detail has been provided by way of hours of work and fee rates, are high having regard to the level of complexity of, and procedures adopted in, this case. Having regard to the sums granted in other United Kingdom cases and taking into account the sums of legal aid paid by the Council of Europe, the Court awards for this head 39,000 euros (EUR), together with any value-added tax that may be payable. The award is made in euros, to be converted into pounds sterling at the date of settlement, as the Court finds it appropriate that henceforth all just satisfaction awards made under Article 41 of the Convention should in principle be based on the euro as the reference currency.", "C. Default interest", "124. As the award is expressed in euros to be converted into the national currency at the date of settlement, the Court considers that the default interest rate should also reflect the choice of the euro as the reference currency. It considers it appropriate to take as the general rule that the rate of the default interest to be paid on outstanding amounts expressed in euro should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. According to the applicant ’ s birth certificate, she is male. She served in the army for three years from the age of 17 and then worked as a police officer. Aged 24, she gave up attempting to live as a man, and had gender reassignment surgery two years later. She has presented as a woman since 1963, is identified as a woman on her National Insurance card and paid contributions to the National Insurance scheme at the female rate (until 1975, when the difference in rates was abolished). In 1972 she became self-employed and started paying into a private pension fund.", "8. By a letter dated 22 August 1997, the applicant applied to the local government benefits office for State pension payments. She wished these to commence on 22 December 1997, her 60 th birthday. Her application was refused by a decision of the Adjudication Officer issued on 31 October 1997. He stated that she had applied “too early”, and was only entitled to a State pension from the age of 65, the retirement age applicable to men.", "9. Her appeal against this decision was heard by Birmingham Social Security Appeal Tribunal on 12 March 1998, which dismissed it on the basis of established case-law. At this time she claimed that she was no longer able to work due to a spinal collapse fracture of osteoporotic origin.", "10. On 1 October 1998 the applicant submitted her appeal to the Social Security Commissioner. Leave to appeal was granted but, by a decision of 1 June 2000, her appeal was dismissed following an oral hearing. The Commissioner felt compelled to follow previous decisions and also held that the DSS had not entered into an agreement to treat the applicant as a woman.", "11. In the light of the judgments of 11 July 2002 given by the Grand Chamber in Christine Goodwin v. the United Kingdom ( [GC], no. 28957 /95, ECHR 2002-VI) and I. v. the United Kingdom ( [GC], no. 25680/94), in which the Court found that the Government ’ s continuing failure to take effective steps to effect the legal recognition of the change of gender of post-operative transsexuals was in breach of Article 8, the applicant wrote to the Office of Social Security on 12 July 20 02 asking for her case to be reopened. The Commissioner notified her on 14 August 2002 that leave to appeal to the Court of Appeal had been granted.", "12. On 5 September 2002 the Department for Work and Pensions refused to award the applicant a State pension in light of the judgment in Christine Goodwin.", "13. In the Court of Appeal, the applicant sought, inter alia, a declaration that she was entitled to her full retirement pension from her 60 th birthday, and damages for breach of the Human Rights Act 1998, in force from 2 October 2000. Meanwhile, on 22 December 2002, the applicant reached the age of 65 and her pension payments began.", "14. By agreement, her case was adjourned to await the House of Lords judgment in Bellinger v. Bellinger. In that case the claimant, a transsexual, sought a declaration of validity in respect of a marriage contracted following gender reassignment surgery. By a decision of 10 April 2003, their Lordships, whilst finding the Government ’ s continuing failure to legislate to be a breach of Articles 8 and 12, deemed the formulation of legal norms to remedy that breach best left to Parliament ([2003] WLR 1174). Further, the House of Lords disapproved of attempts to seek recognition even in the clearest cases on the basis that (a) eventually a line would have to be drawn and (b) such demarcation required detailed consideration by the legislature of the likely social consequences. Following this decision, the applicant was advised by her legal representative that the prospects of persuading the Court of Appeal to depart from the Bellinger judgment, and thus of obtaining an effective remedy, were nil. If proceedings were continued, she would further risk punitive costs orders. Accordingly, the applicant consented to a court order dismissing her appeal with no order as to costs. The Government further refused to make any ex gratia payment of a sum representing her lost State pension.", "15. On 26 April 2005 the applicant was issued with a Gender Recognition Certificate following her application under the Gender Recognition Act 2004 which had come into force on 1 July 2004 (see paragraphs 30-31 below)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "Social security, employment and pensions", "16. A transsexual continues to be recorded for social security, National Insurance and employment purposes as being of the sex recorded at birth.", "(a) National Insurance", "17. The DSS registers every British citizen for National Insurance (NI) purposes on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable.", "18. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder ’ s sex or of any other personal information. The NI number is used to identify each person with an NI account (there are at present approximately 60 million individual NI accounts). The DSS is thereby able to record details of all NI contributions paid into the account during the NI account - holder ’ s life and to monitor each person ’ s liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons, for example, under the witness protection scheme or to protect the identity of child offenders.", "19. NI contributions are made by way of deduction from an employee ’ s pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). At present employers will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee.", "20. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA414 0 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS.", "21. Documents received to date do not explain why National Insurance payments at the lower female rate were accepted from the applicant between 1963 and 1975.", "(b) State pensions", "22. A male-to-female transsexual was, prior to 4 April 2005, only entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. In those circumstances, a full pension was payable only if she had made contributions for 44 years as opposed to the 39 years required of women.", "23. A person ’ s sex for the purposes of pensionable age was prior to 4 April 2005 determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases.", "24. In the R(P) 2/80 case, a male-to-female transsexual claimed entitlement to a pension at the age of 60. The Commissioner dismissed the applicant ’ s appeal and stated at paragraph 9 of his decision:", "“(a) In my view, the word ‘ woman ’ in section 27 of the [1992 Social Security Contributions and Benefits] Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman.", "(b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his National Insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted.", "...", "(d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.”", "25. On 1 June 2000 this decision was followed by a Commissioner determining the applicant ’ s appeal.", "26. By 11 July 2002, when the Grand Chamber gave judgment in Christine Goodwin, the Government had instituted plans to eradicate the difference between men and women concerning the age of entitlement to State pensions. Section 126 of the Pensions Act 1995 provides for the State pensionable age to increase progressively, beginning in 2010 and reaching complete equalisation of the pensionable age at 65 by 2020.", "(c) Recent developments", "27. Up to 15 October 2002, the Government had received 101 applications from transsexual people seeking to have their birth certificate changed. An Interdepartmental Group on Transsexual People was reconvened and reported to Ministers. On 13 December 2002 the Government announced draft legislation and a commitment to legislate as soon as possible.", "28. In its Bellinger judgment published on 10 April 2003 ( see above ), the House of Lords did not expressly deal with the issue of pension entitlements, but took cognisance of the Government ’ s concession that domestic legislation failing to recognise the acquired gender of transsexual people infringed Articles 8 and 12 of the Convention.", "29. On 14 April 2003 the Government confirmed in response to a parliamentary question that proposed legislation would include rights to claim a State pension from the date of legal recognition of the new gender.", "30. The Gender Recognition Act 2004 has been adopted by Parliament since the introduction of this application. It received the Royal Assent on 1 July 2004. Under the Act, individuals who satisfy certain criteria are able to apply to a Gender Recognition Panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the State retirement pension are paid according to the acquired gender.", "31. From 4 January 2005, the Secretariat to the Gender Recognition Panel has been in operation and receiving applications. The Panel itself came into legal existence on 4 April 2005, from which date certificates could be issued.", "(d) The Human Rights Act 1998", "32. On 2 October 2000 the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be relied on in domestic proceedings in the United Kingdom.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "33. The applicant complained that the law relating to transsexual persons in general and the decision of the DSS in particular denying her a retirement pension at the age of 60 amounted to a violation of her rights under Article 8 of the Convention.", "34. The relevant parts of Article 8 of the Convention provide :", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The applicant", "35. The applicant emphasised that she had been issued with a National Insurance card as a woman and had made contributions at the female rate and as a result believed that she was being treated for all National Insurance purposes as a woman. She had never been informed otherwise. Referring to European Union case-law on temporal effects of judgments, the applicant argued that the judgment in Christine Goodwin ( cited above) had not been expressed as having limited temporal effect in the sense identified in Marckx v. Belgium ( 1 3 June 1979, § 58, Series A no. 31); that it had not dispensed the Government from re-examining legal acts or situations which predated the judgment; and that the Government had not requested such limitation and had not identified any mandatory reasons of legal certainty that would justify such limitation. Since there was a violation in Christine Goodwin, where the applicant had been informed in 1997 about her ineligibility for a State pension, a similar violation must have arisen in the present case from the refusal given to the applicant on 31 October 1997, and certainly on 5 September 2002 when she was refused again. In any event, the situation was a continuing one, not based on any one-off act.", "36. Even if there was a temporal limitation in the earlier judgment, the applicant argued that this could not apply to her, as she had already made an equivalent claim and instituted legal proceedings to assert her rights. In so far as the Government sought to argue that no breach arose after the judgment in Christine Goodwin, this was contrary to the House of Lords judgment in Bellinger itself and contrary to Convention case-law. On the latter point, she referred to Vermeire v. Belgium ( 29 November 1991, Series A no. 214- C), in which the Court rejected the Belgian Government ’ s argument that the judgment in Marckx required a thorough revision of the legal status of children born out of wedlock and found that Article 46 did not allow a State to suspend the application of the Convention while waiting for reform.", "2. The Government", "37. The Government accepted that the applicant had genuinely believed that she would be entitled to a pension at the age of 60 but submitted that this mistake was not caused by the authorities. They also accepted that from the time of the judgment in Christine Goodwin (cited above) on 11 July 2002 those parts of English law which failed to give legal recognition to the acquired gender of transsexual persons were in principle incompatible with Articles 8 and 12 of the Convention. It was clear, however, that the judgment did not apply to the past or overrule previous judgments but expressly recognised the prospective nature of the judgment. Accordingly, there was no violation in the present case when the applicant was refused a pension on 31 October 1997, a one-off act or decision, the compatibility of which with the Convention should be assessed at that date.", "38. Furthermore they submitted that the judgment in Christine Goodwin indicated that it was for the Government to implement measures in due course and the relevant domestic legal authorities were to be afforded a reasonable period within which to change clear statutory provisions for the future and were not to be treated as having been in breach of the Convention in other cases retrospectively ( Marckx v. Belgium, cited above; Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000; and J.R. v. Germany, no. 22651/93, Commission decision of 18 October 1995, Decisions and Reports 83-A ). There were inevitable difficulties and important repercussions in any major change in the system and there had been a prompt legislative response. There had accordingly been no breach of Article 8 of the Convention in respect of the applicant.", "B. The Court ’ s assessment", "39. The Court notes that it has dealt with a series of cases concerning the position of transsexuals in the United Kingdom ( Rees v. the United Kingdom, 17 October 1986, Series A no. 106; Cossey v. the United Kingdom, 27 September 1990, Series A no. 184; X, Y and Z v. the United Kingdom, 22 April 1997, Reports of Judgments and Decisions 1997-II; Sheffield and Horsham v. the United Kingdom, 30 July 1998, Reports 1998 ‑ V; and, most recently, Christine Goodwin and I. v. the United Kingdom, both cited above ). In the earlier cases, it held that the refusal of the United Kingdom Government to alter the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual could not be considered as an interference with the right to respect for private life ( see Rees, § 35; Cossey, § 36; and Sheffield and Horsham, § 59 ). However, at the same time, the Court was conscious of the serious problems facing transsexuals and on each occasion stressed the importance of keeping the need for appropriate legal measures in this area under review (see Rees, § 47; Cossey, § 42; and Sheffield and Horsham, § 60). In the latest cases, it expressly had regard to the situation within and outside the Contracting State to assess “in the light of present-day conditions” what was at that time the appropriate interpretation and application of the Convention ( see Christine Goodwin, § 75). Following its examination of the applicants ’ personal circumstances as a transsexual, current medical and scientific considerations, the state of European and international consensus, impact on the birth register and social and domestic law developments, the Court found that the respondent Government could no longer claim that the matter fell within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. As there were no significant factors of public interest to weigh against the interest of these individual applicants in obtaining legal recognition of their gender reassignment, it reached the conclusion that the fair balance that was inherent in the Convention now tilted decisively in favour of the applicants and that there had accordingly been a failure to respect their right to private life in breach of Article 8 of the Convention.", "40. In the present case, the Court finds that the applicant – a post-operative male-to-female transsexual in an identical situation to the applicant in Christine Goodwin – may also claim to be a victim of a breach of her right to respect for her private life contrary to Article 8 of the Convention due to the lack of legal recognition of her change of gender.", "41. The Court has noted the submissions of the parties concerning the date from which the applicant can claim, if at all, to be a victim of such a breach. While it is true that the Government had to take steps to comply with the judgment in Christine Goodwin, which involved drafting and passing in Parliament new legislation, which they achieved with laudable expedition, it is not the case that this process can be regarded as in any way suspending the applicant ’ s victim status. The Court ’ s judgment in Christine Goodwin found that from that moment there was no longer any justification for failing to recognise the change of gender of post-operative transsexuals. The applicant as such a transsexual did not have at that time any possibility of obtaining such recognition and could claim to be prejudiced from that moment. This situation may be distinguished from that in Walden (cited above), relied on by the Government, where the domestic courts did not act unreasonably or disproportionately in taking into account the time necessary for passing remedial legislation when considering the applicants ’ claims for redress under domestic law,. The present applicant ’ s victim status came to an end when the Gender Recognition Act 2004 came into force, thereby providing the applicant with the means on a domestic level to obtain the legal recognition previously denied.", "42. The Court must also therefore reject the applicant ’ s claims that her victim status should be regarded as existing before the Christine Goodwin case and in particular encompassing the decision taken in October 1997 which first denied her the pension payable to women. Contrary to the applicant ’ s argument, the Court did not make any finding in Christine Goodwin that the refusal of a pension at an earlier time violated that applicant ’ s rights. The differences applicable to men and women concerning pensionable ages and National Insurance contributions were adverted to in the context of examining the consequence of the lack of legal recognition of transsexuals. The finding of a violation was, in light of previous findings by the Court that the Government had been acting within their margin of appreciation, made with express reference to the conditions pertaining at the time the Court carried out its examination of the merits of the case (see, mutatis mutandis, in expulsion cases, Chahal v. the United Kingdom, 15 November 1996, § 97, Reports 1996 ‑ V).", "43. Consequently, in so far as the applicant complains specifically of the refusal to accord her the pension rights applicable to women of biological origin, she may claim to be a victim of this aspect of the lack of legal recognition from the moment, after the judgment in Christine Goodwin, when the authorities refused to give effect to her claim, namely, from 5 September 2002.", "44. Subject to the above considerations, the Court finds that there has been a breach of the applicant ’ s right to respect for her private life contrary to Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "45. The applicant complained of the refusal to pay her a State pension at 60, relying on the provisions below.", "46. Article 1 of Protocol No. 1 provides in its first paragraph :", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”", "47. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "48. The applicant submitted that the denial of her pension must be regarded as an interference with a property right, namely a deprivation of five years ’ worth of pension payments (about 20,000 pounds sterling ), for which no legitimate justification had been provided. Nor had any reasonable and objective justification been provided for any differential treatment between her and other women.", "49. The Government accepted that the applicant ’ s entitlement to a State retirement pension, which was a contributory benefit, was a “ property ” right for the purposes of this provision. However, for the reasons given under Article 8 of the Convention, the refusal to recognise the applicant ’ s acquired gender for the purposes of the State pensionable age on 31 October 1997 was within their margin of appreciation and not in violation of Article 1 of Protocol No. 1. Her complaints were in any event more appropriately examined under Article 8 and no separate issue, in their view, arose.", "B. The Court ’ s assessment", "50. The Court would note that under domestic law as it stood at the relevant time the applicant had no right to be paid a State pension at 60 and, on the same basis, it may well be that no proprietary right arose capable of engaging Article 1 of Protocol No. 1 taken alone. The Court does not consider it necessary, however, to decide this point.", "51. As regards Article 14 of the Convention, this provision complements the other substantive provisions of the Convention and its Protocols and there can be no room for its application unless the facts in issue fall within the ambit of one or more of them (see, among other authorities, Gaygusuz v. Austria, 16 September 1996, § 36, Reports 1996-IV). Assuming that issues relating to the eligibility for a State pension are sufficiently pecuniary to fall within the scope of Article 1 of Protocol No. 1 for the purposes of Article 14, the Court observes that any failure by the domestic authorities to accord the applicant her pension at the age applicable to women must be regarded, at the time of the first refusal in 1997, as within the Government ’ s margin of appreciation (see paragraph 39 above ). In so far as her pension was again refused after the judgment in Christine Goodwin, in which a violation of Article 8 was found, the Court observes that the applicant has already complained of this aspect also in the context of Article 8. Since this refusal indeed flowed as a consequence from the failure to accord due respect to the applicant ’ s private life, the Court considers that it is essentially an Article 8 matter and that no separate issue arises for the purposes of Article 1 of Protocol No. 1 either taken alone or in conjunction with Article 14 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "52. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "53. The applicant claimed 20,000 pounds sterling (GBP) for the loss of her pension between the ages of 60 and 65. She further claimed GBP 10,312 for non-pecuniary damage, namely the suffering, financial hardship, worry and distress flowing from the lack of legal recognition, referring to the award made in B. v. France ( 25 March 1992, Series A no. 232 ‑ C ).", "54. The Government submitted that no award for pecuniary or non-pecuniary damage should be made. To hold otherwise would be to favour this applicant to the prejudice of the applicant in Christine Goodwin. In any event, the sum for non-pecuniary damage claimed was excessive, B. v. France not being an appropriate comparator.", "55. The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings or other sources of income (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, §§ 16-20, Series A no. 285-C, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV ).", "56. In the present case, the applicant was refused payment of her State pension on 5 September 2002, that is, after the Court had found in the judgment in Christine Goodwin that there was no longer any justification for failing to provide for the legal recognition of the change of gender of post-operative transsexuals. It started to be paid from 22 December 2002. The Court makes a pecuniary award of 1,700 euros (EUR) in respect of the three - month -and-seventeen- day period between those dates.", "57. As regards non-pecuniary damage, the Court observes that it considered in Christine Goodwin that such an award was not appropriate and that the essence of redress lay in the implementation, in due course, by the Government of the necessary measures to secure compliance with the Article 8 rights.", "B. Costs and expenses", "58. The applicant claimed GBP 10,708.90, inclusive of value-added tax (VAT), for legal costs and expenses incurred in pursuing her case domestically and GBP 11,463.90, inclusive of VAT, for legal costs and expenses in pursuing her complaints in Strasbourg.", "59. The Government considered that the sums claimed for the domestic proceedings were excessive, given the high hourly rate claimed and the relatively short period of time during which the applicant ’ s representatives were instructed (less than a year). They put forward GBP 4,000 as a reasonable figure. As far as the costs before this Court were concerned, they considered that they should be reduced to take into account that part of the application was unsuccessful. They also considered that the sums were not reasonable as to quantum, again given the high hourly rate claimed and the high sums claimed for solicitor and counsel which suggested a degree of duplication of work. They proposed a sum of GBP 5,500.", "60. The Court reiterates that where there has been a violation of the Convention it may award the applicant not only actual and necessary costs of the proceedings in Strasbourg, in so far as reasonable in quantum, but also those incurred before the domestic courts for the prevention or redress of the violation (see, for example, I.J.L. and Others v. the United Kingdom ( just satisfaction ), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001).", "61. As regards the costs in domestic proceedings which may be regarded as flowing from the applicant ’ s efforts to prevent a violation of her rights, the Court has taken note of the Government ’ s objections and agrees that the sum is high given the nature and relative brevity of the procedures. It would award the sum of EUR 11, 463 in this respect, inclusive of VAT.", "62. Turning to the Strasbourg costs, the Court observes that those aspects of the case which were declared inadmissible were a minor part of the application and that a violation has been found on the central issue of Article 8. It does not find that the sums claimed are unreasonable or that there is any significant element of duplication. It awards EUR 16,686 in this respect, inclusive of VAT.", "C. Default interest", "63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. According to the applicant ’ s birth certificate, she is male. She served in the army for three years from the age of 17 and then worked as a police officer. Aged 24, she gave up attempting to live as a man, and had gender reassignment surgery two years later. She has presented as a woman since 1963, is identified as a woman on her National Insurance card and paid contributions to the National Insurance scheme at the female rate (until 1975, when the difference in rates was abolished). In 1972 she became self-employed and started paying into a private pension fund.", "8. By a letter dated 22 August 1997, the applicant applied to the local government benefits office for State pension payments. She wished these to commence on 22 December 1997, her 60 th birthday. Her application was refused by a decision of the Adjudication Officer issued on 31 October 1997. He stated that she had applied “too early”, and was only entitled to a State pension from the age of 65, the retirement age applicable to men.", "9. Her appeal against this decision was heard by Birmingham Social Security Appeal Tribunal on 12 March 1998, which dismissed it on the basis of established case-law. At this time she claimed that she was no longer able to work due to a spinal collapse fracture of osteoporotic origin.", "10. On 1 October 1998 the applicant submitted her appeal to the Social Security Commissioner. Leave to appeal was granted but, by a decision of 1 June 2000, her appeal was dismissed following an oral hearing. The Commissioner felt compelled to follow previous decisions and also held that the DSS had not entered into an agreement to treat the applicant as a woman.", "11. In the light of the judgments of 11 July 2002 given by the Grand Chamber in Christine Goodwin v. the United Kingdom ( [GC], no. 28957 /95, ECHR 2002-VI) and I. v. the United Kingdom ( [GC], no. 25680/94), in which the Court found that the Government ’ s continuing failure to take effective steps to effect the legal recognition of the change of gender of post-operative transsexuals was in breach of Article 8, the applicant wrote to the Office of Social Security on 12 July 20 02 asking for her case to be reopened. The Commissioner notified her on 14 August 2002 that leave to appeal to the Court of Appeal had been granted.", "12. On 5 September 2002 the Department for Work and Pensions refused to award the applicant a State pension in light of the judgment in Christine Goodwin.", "13. In the Court of Appeal, the applicant sought, inter alia, a declaration that she was entitled to her full retirement pension from her 60 th birthday, and damages for breach of the Human Rights Act 1998, in force from 2 October 2000. Meanwhile, on 22 December 2002, the applicant reached the age of 65 and her pension payments began.", "14. By agreement, her case was adjourned to await the House of Lords judgment in Bellinger v. Bellinger. In that case the claimant, a transsexual, sought a declaration of validity in respect of a marriage contracted following gender reassignment surgery. By a decision of 10 April 2003, their Lordships, whilst finding the Government ’ s continuing failure to legislate to be a breach of Articles 8 and 12, deemed the formulation of legal norms to remedy that breach best left to Parliament ([2003] WLR 1174). Further, the House of Lords disapproved of attempts to seek recognition even in the clearest cases on the basis that (a) eventually a line would have to be drawn and (b) such demarcation required detailed consideration by the legislature of the likely social consequences. Following this decision, the applicant was advised by her legal representative that the prospects of persuading the Court of Appeal to depart from the Bellinger judgment, and thus of obtaining an effective remedy, were nil. If proceedings were continued, she would further risk punitive costs orders. Accordingly, the applicant consented to a court order dismissing her appeal with no order as to costs. The Government further refused to make any ex gratia payment of a sum representing her lost State pension.", "15. On 26 April 2005 the applicant was issued with a Gender Recognition Certificate following her application under the Gender Recognition Act 2004 which had come into force on 1 July 2004 (see paragraphs 30-31 below)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "Social security, employment and pensions", "16. A transsexual continues to be recorded for social security, National Insurance and employment purposes as being of the sex recorded at birth.", "(a) National Insurance", "17. The DSS registers every British citizen for National Insurance (NI) purposes on the basis of the information in their birth certificate. Non-British citizens who wish to register for NI in the United Kingdom may use their passport or identification card as evidence of identity if a birth certificate is unavailable.", "18. The DSS allocates every person registered for NI with a unique NI number. The NI number has a standard format consisting of two letters followed by three pairs of numbers and a further letter. It contains no indication in itself of the holder ’ s sex or of any other personal information. The NI number is used to identify each person with an NI account (there are at present approximately 60 million individual NI accounts). The DSS is thereby able to record details of all NI contributions paid into the account during the NI account - holder ’ s life and to monitor each person ’ s liabilities, contributions and entitlement to benefits accurately. New numbers may in exceptional cases be issued to persons, for example, under the witness protection scheme or to protect the identity of child offenders.", "19. NI contributions are made by way of deduction from an employee ’ s pay by the employer and then by payment to the Inland Revenue (for onward transmission to the DSS). At present employers will make such deductions for a female employee until she reaches the pensionable age of 60 and for a male employee until he reaches the pensionable age of 65. The DSS operates a policy for male-to-female transsexuals whereby they may enter into an undertaking with the DSS to pay direct to the DSS any NI contributions due after the transsexual has reached the age of 60 which have ceased to be deducted by the employer in the belief that the employee is female. In the case of female-to-male transsexuals, any deductions which are made by an employer after the age of 60 may be reclaimed directly from the DSS by the employee.", "20. In some cases employers will require proof that an apparent female employee has reached, or is about to reach, the age of 60 and so entitled not to have the NI deductions made. Such proof may be provided in the form of an Age Exemption Certificate (form CA414 0 or CF384). The DSS may issue such a certificate to a male-to-female transsexual where such a person enters into an undertaking to pay any NI contributions direct to the DSS.", "21. Documents received to date do not explain why National Insurance payments at the lower female rate were accepted from the applicant between 1963 and 1975.", "(b) State pensions", "22. A male-to-female transsexual was, prior to 4 April 2005, only entitled to a State pension at the retirement age of 65 applied to men and not the age of 60 which is applicable to women. In those circumstances, a full pension was payable only if she had made contributions for 44 years as opposed to the 39 years required of women.", "23. A person ’ s sex for the purposes of pensionable age was prior to 4 April 2005 determined according to biological sex at birth. This approach was approved by the Social Security Commissioner (a judicial officer, who specialises in social security law) in a number of cases.", "24. In the R(P) 2/80 case, a male-to-female transsexual claimed entitlement to a pension at the age of 60. The Commissioner dismissed the applicant ’ s appeal and stated at paragraph 9 of his decision:", "“(a) In my view, the word ‘ woman ’ in section 27 of the [1992 Social Security Contributions and Benefits] Act means a person who is biologically a woman. Sections 28 and 29 contain many references to a woman in terms which indicate that a person is denoted who is capable of forming a valid marriage with a husband. That can only be a person who is biologically a woman.", "(b) I doubt whether the distinction between a person who is biologically, and one who is socially, female has ever been present in the minds of the legislators when enacting relevant statutes. However that may be, it is certain that Parliament has never conferred on any person the right or privilege of changing the basis of his National Insurance rights from those appropriate to a man to those appropriate to a woman. In my judgment, such a fundamental right or privilege would have to be expressly granted.", "...", "(d) I fully appreciate the unfortunate predicament of the claimant, but the merits are not all on her side. She lived as a man from birth until 1975, and, during the part of that period when she was adult, her insurance rights were those appropriate to a man. These rights are in some respects more extensive than those appropriate to a woman. Accordingly, an element of unfairness to the general public might have to be tolerated so as to allow the payment of a pension to her at the pensionable age of a woman.”", "25. On 1 June 2000 this decision was followed by a Commissioner determining the applicant ’ s appeal.", "26. By 11 July 2002, when the Grand Chamber gave judgment in Christine Goodwin, the Government had instituted plans to eradicate the difference between men and women concerning the age of entitlement to State pensions. Section 126 of the Pensions Act 1995 provides for the State pensionable age to increase progressively, beginning in 2010 and reaching complete equalisation of the pensionable age at 65 by 2020.", "(c) Recent developments", "27. Up to 15 October 2002, the Government had received 101 applications from transsexual people seeking to have their birth certificate changed. An Interdepartmental Group on Transsexual People was reconvened and reported to Ministers. On 13 December 2002 the Government announced draft legislation and a commitment to legislate as soon as possible.", "28. In its Bellinger judgment published on 10 April 2003 ( see above ), the House of Lords did not expressly deal with the issue of pension entitlements, but took cognisance of the Government ’ s concession that domestic legislation failing to recognise the acquired gender of transsexual people infringed Articles 8 and 12 of the Convention.", "29. On 14 April 2003 the Government confirmed in response to a parliamentary question that proposed legislation would include rights to claim a State pension from the date of legal recognition of the new gender.", "30. The Gender Recognition Act 2004 has been adopted by Parliament since the introduction of this application. It received the Royal Assent on 1 July 2004. Under the Act, individuals who satisfy certain criteria are able to apply to a Gender Recognition Panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the State retirement pension are paid according to the acquired gender.", "31. From 4 January 2005, the Secretariat to the Gender Recognition Panel has been in operation and receiving applications. The Panel itself came into legal existence on 4 April 2005, from which date certificates could be issued.", "(d) The Human Rights Act 1998", "32. On 2 October 2000 the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be relied on in domestic proceedings in the United Kingdom.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "33. The applicant complained that the law relating to transsexual persons in general and the decision of the DSS in particular denying her a retirement pension at the age of 60 amounted to a violation of her rights under Article 8 of the Convention.", "34. The relevant parts of Article 8 of the Convention provide :", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The applicant", "35. The applicant emphasised that she had been issued with a National Insurance card as a woman and had made contributions at the female rate and as a result believed that she was being treated for all National Insurance purposes as a woman. She had never been informed otherwise. Referring to European Union case-law on temporal effects of judgments, the applicant argued that the judgment in Christine Goodwin ( cited above) had not been expressed as having limited temporal effect in the sense identified in Marckx v. Belgium ( 1 3 June 1979, § 58, Series A no. 31); that it had not dispensed the Government from re-examining legal acts or situations which predated the judgment; and that the Government had not requested such limitation and had not identified any mandatory reasons of legal certainty that would justify such limitation. Since there was a violation in Christine Goodwin, where the applicant had been informed in 1997 about her ineligibility for a State pension, a similar violation must have arisen in the present case from the refusal given to the applicant on 31 October 1997, and certainly on 5 September 2002 when she was refused again. In any event, the situation was a continuing one, not based on any one-off act.", "36. Even if there was a temporal limitation in the earlier judgment, the applicant argued that this could not apply to her, as she had already made an equivalent claim and instituted legal proceedings to assert her rights. In so far as the Government sought to argue that no breach arose after the judgment in Christine Goodwin, this was contrary to the House of Lords judgment in Bellinger itself and contrary to Convention case-law. On the latter point, she referred to Vermeire v. Belgium ( 29 November 1991, Series A no. 214- C), in which the Court rejected the Belgian Government ’ s argument that the judgment in Marckx required a thorough revision of the legal status of children born out of wedlock and found that Article 46 did not allow a State to suspend the application of the Convention while waiting for reform.", "2. The Government", "37. The Government accepted that the applicant had genuinely believed that she would be entitled to a pension at the age of 60 but submitted that this mistake was not caused by the authorities. They also accepted that from the time of the judgment in Christine Goodwin (cited above) on 11 July 2002 those parts of English law which failed to give legal recognition to the acquired gender of transsexual persons were in principle incompatible with Articles 8 and 12 of the Convention. It was clear, however, that the judgment did not apply to the past or overrule previous judgments but expressly recognised the prospective nature of the judgment. Accordingly, there was no violation in the present case when the applicant was refused a pension on 31 October 1997, a one-off act or decision, the compatibility of which with the Convention should be assessed at that date.", "38. Furthermore they submitted that the judgment in Christine Goodwin indicated that it was for the Government to implement measures in due course and the relevant domestic legal authorities were to be afforded a reasonable period within which to change clear statutory provisions for the future and were not to be treated as having been in breach of the Convention in other cases retrospectively ( Marckx v. Belgium, cited above; Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000; and J.R. v. Germany, no. 22651/93, Commission decision of 18 October 1995, Decisions and Reports 83-A ). There were inevitable difficulties and important repercussions in any major change in the system and there had been a prompt legislative response. There had accordingly been no breach of Article 8 of the Convention in respect of the applicant.", "B. The Court ’ s assessment", "39. The Court notes that it has dealt with a series of cases concerning the position of transsexuals in the United Kingdom ( Rees v. the United Kingdom, 17 October 1986, Series A no. 106; Cossey v. the United Kingdom, 27 September 1990, Series A no. 184; X, Y and Z v. the United Kingdom, 22 April 1997, Reports of Judgments and Decisions 1997-II; Sheffield and Horsham v. the United Kingdom, 30 July 1998, Reports 1998 ‑ V; and, most recently, Christine Goodwin and I. v. the United Kingdom, both cited above ). In the earlier cases, it held that the refusal of the United Kingdom Government to alter the register of births or to issue birth certificates whose contents and nature differed from those of the original entries concerning the recorded gender of the individual could not be considered as an interference with the right to respect for private life ( see Rees, § 35; Cossey, § 36; and Sheffield and Horsham, § 59 ). However, at the same time, the Court was conscious of the serious problems facing transsexuals and on each occasion stressed the importance of keeping the need for appropriate legal measures in this area under review (see Rees, § 47; Cossey, § 42; and Sheffield and Horsham, § 60). In the latest cases, it expressly had regard to the situation within and outside the Contracting State to assess “in the light of present-day conditions” what was at that time the appropriate interpretation and application of the Convention ( see Christine Goodwin, § 75). Following its examination of the applicants ’ personal circumstances as a transsexual, current medical and scientific considerations, the state of European and international consensus, impact on the birth register and social and domestic law developments, the Court found that the respondent Government could no longer claim that the matter fell within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. As there were no significant factors of public interest to weigh against the interest of these individual applicants in obtaining legal recognition of their gender reassignment, it reached the conclusion that the fair balance that was inherent in the Convention now tilted decisively in favour of the applicants and that there had accordingly been a failure to respect their right to private life in breach of Article 8 of the Convention.", "40. In the present case, the Court finds that the applicant – a post-operative male-to-female transsexual in an identical situation to the applicant in Christine Goodwin – may also claim to be a victim of a breach of her right to respect for her private life contrary to Article 8 of the Convention due to the lack of legal recognition of her change of gender.", "41. The Court has noted the submissions of the parties concerning the date from which the applicant can claim, if at all, to be a victim of such a breach. While it is true that the Government had to take steps to comply with the judgment in Christine Goodwin, which involved drafting and passing in Parliament new legislation, which they achieved with laudable expedition, it is not the case that this process can be regarded as in any way suspending the applicant ’ s victim status. The Court ’ s judgment in Christine Goodwin found that from that moment there was no longer any justification for failing to recognise the change of gender of post-operative transsexuals. The applicant as such a transsexual did not have at that time any possibility of obtaining such recognition and could claim to be prejudiced from that moment. This situation may be distinguished from that in Walden (cited above), relied on by the Government, where the domestic courts did not act unreasonably or disproportionately in taking into account the time necessary for passing remedial legislation when considering the applicants ’ claims for redress under domestic law,. The present applicant ’ s victim status came to an end when the Gender Recognition Act 2004 came into force, thereby providing the applicant with the means on a domestic level to obtain the legal recognition previously denied.", "42. The Court must also therefore reject the applicant ’ s claims that her victim status should be regarded as existing before the Christine Goodwin case and in particular encompassing the decision taken in October 1997 which first denied her the pension payable to women. Contrary to the applicant ’ s argument, the Court did not make any finding in Christine Goodwin that the refusal of a pension at an earlier time violated that applicant ’ s rights. The differences applicable to men and women concerning pensionable ages and National Insurance contributions were adverted to in the context of examining the consequence of the lack of legal recognition of transsexuals. The finding of a violation was, in light of previous findings by the Court that the Government had been acting within their margin of appreciation, made with express reference to the conditions pertaining at the time the Court carried out its examination of the merits of the case (see, mutatis mutandis, in expulsion cases, Chahal v. the United Kingdom, 15 November 1996, § 97, Reports 1996 ‑ V).", "43. Consequently, in so far as the applicant complains specifically of the refusal to accord her the pension rights applicable to women of biological origin, she may claim to be a victim of this aspect of the lack of legal recognition from the moment, after the judgment in Christine Goodwin, when the authorities refused to give effect to her claim, namely, from 5 September 2002.", "44. Subject to the above considerations, the Court finds that there has been a breach of the applicant ’ s right to respect for her private life contrary to Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "45. The applicant complained of the refusal to pay her a State pension at 60, relying on the provisions below.", "46. Article 1 of Protocol No. 1 provides in its first paragraph :", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”", "47. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "48. The applicant submitted that the denial of her pension must be regarded as an interference with a property right, namely a deprivation of five years ’ worth of pension payments (about 20,000 pounds sterling ), for which no legitimate justification had been provided. Nor had any reasonable and objective justification been provided for any differential treatment between her and other women.", "49. The Government accepted that the applicant ’ s entitlement to a State retirement pension, which was a contributory benefit, was a “ property ” right for the purposes of this provision. However, for the reasons given under Article 8 of the Convention, the refusal to recognise the applicant ’ s acquired gender for the purposes of the State pensionable age on 31 October 1997 was within their margin of appreciation and not in violation of Article 1 of Protocol No. 1. Her complaints were in any event more appropriately examined under Article 8 and no separate issue, in their view, arose.", "B. The Court ’ s assessment", "50. The Court would note that under domestic law as it stood at the relevant time the applicant had no right to be paid a State pension at 60 and, on the same basis, it may well be that no proprietary right arose capable of engaging Article 1 of Protocol No. 1 taken alone. The Court does not consider it necessary, however, to decide this point.", "51. As regards Article 14 of the Convention, this provision complements the other substantive provisions of the Convention and its Protocols and there can be no room for its application unless the facts in issue fall within the ambit of one or more of them (see, among other authorities, Gaygusuz v. Austria, 16 September 1996, § 36, Reports 1996-IV). Assuming that issues relating to the eligibility for a State pension are sufficiently pecuniary to fall within the scope of Article 1 of Protocol No. 1 for the purposes of Article 14, the Court observes that any failure by the domestic authorities to accord the applicant her pension at the age applicable to women must be regarded, at the time of the first refusal in 1997, as within the Government ’ s margin of appreciation (see paragraph 39 above ). In so far as her pension was again refused after the judgment in Christine Goodwin, in which a violation of Article 8 was found, the Court observes that the applicant has already complained of this aspect also in the context of Article 8. Since this refusal indeed flowed as a consequence from the failure to accord due respect to the applicant ’ s private life, the Court considers that it is essentially an Article 8 matter and that no separate issue arises for the purposes of Article 1 of Protocol No. 1 either taken alone or in conjunction with Article 14 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "52. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "53. The applicant claimed 20,000 pounds sterling (GBP) for the loss of her pension between the ages of 60 and 65. She further claimed GBP 10,312 for non-pecuniary damage, namely the suffering, financial hardship, worry and distress flowing from the lack of legal recognition, referring to the award made in B. v. France ( 25 March 1992, Series A no. 232 ‑ C ).", "54. The Government submitted that no award for pecuniary or non-pecuniary damage should be made. To hold otherwise would be to favour this applicant to the prejudice of the applicant in Christine Goodwin. In any event, the sum for non-pecuniary damage claimed was excessive, B. v. France not being an appropriate comparator.", "55. The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings or other sources of income (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, §§ 16-20, Series A no. 285-C, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV ).", "56. In the present case, the applicant was refused payment of her State pension on 5 September 2002, that is, after the Court had found in the judgment in Christine Goodwin that there was no longer any justification for failing to provide for the legal recognition of the change of gender of post-operative transsexuals. It started to be paid from 22 December 2002. The Court makes a pecuniary award of 1,700 euros (EUR) in respect of the three - month -and-seventeen- day period between those dates.", "57. As regards non-pecuniary damage, the Court observes that it considered in Christine Goodwin that such an award was not appropriate and that the essence of redress lay in the implementation, in due course, by the Government of the necessary measures to secure compliance with the Article 8 rights.", "B. Costs and expenses", "58. The applicant claimed GBP 10,708.90, inclusive of value-added tax (VAT), for legal costs and expenses incurred in pursuing her case domestically and GBP 11,463.90, inclusive of VAT, for legal costs and expenses in pursuing her complaints in Strasbourg.", "59. The Government considered that the sums claimed for the domestic proceedings were excessive, given the high hourly rate claimed and the relatively short period of time during which the applicant ’ s representatives were instructed (less than a year). They put forward GBP 4,000 as a reasonable figure. As far as the costs before this Court were concerned, they considered that they should be reduced to take into account that part of the application was unsuccessful. They also considered that the sums were not reasonable as to quantum, again given the high hourly rate claimed and the high sums claimed for solicitor and counsel which suggested a degree of duplication of work. They proposed a sum of GBP 5,500.", "60. The Court reiterates that where there has been a violation of the Convention it may award the applicant not only actual and necessary costs of the proceedings in Strasbourg, in so far as reasonable in quantum, but also those incurred before the domestic courts for the prevention or redress of the violation (see, for example, I.J.L. and Others v. the United Kingdom ( just satisfaction ), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001).", "61. As regards the costs in domestic proceedings which may be regarded as flowing from the applicant ’ s efforts to prevent a violation of her rights, the Court has taken note of the Government ’ s objections and agrees that the sum is high given the nature and relative brevity of the procedures. It would award the sum of EUR 11, 463 in this respect, inclusive of VAT.", "62. Turning to the Strasbourg costs, the Court observes that those aspects of the case which were declared inadmissible were a minor part of the application and that a violation has been found on the central issue of Article 8. It does not find that the sums claimed are unreasonable or that there is any significant element of duplication. It awards EUR 16,686 in this respect, inclusive of VAT.", "C. Default interest", "63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1978 and lives in Klaipėda.", "6. At birth the applicant was registered as a girl with a clearly female name under the rules of the Lithuanian language.", "7. The applicant submitted that from an early age he had become aware that his “ mental sex ” was male, thus acknowledging the conflict between his mental and genital gender.", "8. On 18 May 1997 the applicant consulted a microsurgeon about the possibilities of gender reassignment. The doctor proposed that the applicant first consult a psychiatrist.", "9. From 4 to 12 November 1997 the applicant attended Vilnius Psychiatric Hospital for tests on his physical and psychological condition.", "10. On 16 December 1997 a doctor at the Vilnius University Hospital of Santariškės confirmed the applicant ’ s chromosomal sex as female, and diagnosed him as a transsexual. The doctor also advised that the applicant consult a psychiatrist.", "11. On 23 January 1998 the Vilnius University Hospital of Raudonasis Kryžius opened a medical file on the applicant. The applicant gave his name in a masculine form under the rules of the Lithuanian language, and his medical file referred to him as being of male gender. An entry of 28 January 1998 in the medical file included a recommendation that the applicant pursue hormone treatment with a view to eventual gender reassignment surgery. Thereafter, a two-month course of hormone treatment was officially prescribed for the applicant. Moreover, it was recommended that the applicant consult a neurosurgeon, who subsequently performed breast removal surgery on him (see paragraph 19 below).", "12. On 12 November 1998 the applicant, using his original name and surname, wrote a letter to the Ministry of Health seeking clarification of the legal and medical possibilities for gender reassignment. He stated that he was determined to undergo this procedure.", "13. On 17 December 1998 an official of the Ministry of Health replied that a working group had been set up by the Minister of Health with a view to analysing the questions pertaining to gender reassignment, and that the applicant would be duly informed about the conclusions of that group.", "14. Before the Court, the applicant claimed that he had received no further communication from the Ministry of Health.", "15. On 13 May 1999 a doctor at Vilnius Psychiatric Hospital confirmed that the applicant, referred to by his original name, had attended the hospital from 4 to 12 November 1997, and that he had been diagnosed as a transsexual.", "16. The applicant submitted that in 1999 his general medical practitioner had refused to prescribe hormone therapy in view of the legal uncertainty as to whether full gender reassignment could be carried out, leading to the new identity of a transsexual being registered in accordance with domestic law. Thereafter the applicant continued the hormone treatment “unofficially”, as it was considered at that time that such treatment should be followed for two years before the full surgical procedure could be performed.", "17. On an unspecified date in 1999 the applicant requested that his name on all official documents be changed to reflect his male identity; that request was refused.", "18. On an unspecified date in 1999 the applicant enrolled at Vilnius University. Upon the applicant ’ s request, the university administration agreed to register him as a student under the male name chosen by him (bearing the initials P.L.). The applicant asserted before the Court that the decision of the University was exceptional and purely humanitarian, as the laws applicable at the material time clearly required his registration under his original female name, as indicated on his birth certificate and passport.", "19. From 3 to 9 May 2000 the applicant underwent “partial gender reassignment surgery” ( breast removal ). The applicant agreed with the doctors that a further surgical step would be carried out upon the enactment of subsidiary laws governing the appropriate conditions and procedure.", "20. On an unspecified date in 2000, with the assistance of a Lithuanian member of parliament, the applicant ’ s birth certificate and passport were changed to indicate his identity as P.L. The forename and surname chosen by the applicant for this new identity were of Slavic origin, and thus did not disclose his gender. The applicant could not choose a Lithuanian name or surname as they are all gender-sensitive. However, the applicant ’ s “personal code” on his new birth certificate and passport – a numerical code comprising the basic information about a person in accordance with the Lithuanian civil - registration rules – remained the same, starting with the number 4, thus disclosing his gender as female (see paragraphs 28 ‑ 29 below).", "21. The applicant stressed that he therefore remained female under domestic law. This was confirmed, inter alia, by the fact that, on the Vilnius University degree certificate he had received after successfully graduating in 2003, his “personal code” remained the same and denoted him as a female. As a result, he claimed that he faced considerable daily embarrassment and difficulties, as he was unable, for example, to apply for a job, pay social security contributions, consult medical institutions, communicate with the authorities, obtain a bank loan or cross the State border without disclosing his female identity.", "22. The applicant submitted a copy of an article by the Baltic News Agency (BNS) of 17 June 2003, quoting a statement by the Speaker of the Seimas on the Gender Reassignment Bill ( put before Parliament on 3 June 2003 – see paragraph 3 0 below). It was mentioned in the article that certain members of parliament had accused the Minister of Health, who was a plastic surgeon, of having a personal interest in the enactment of the law. The article also mentioned that certain members of the Social Democratic Party had urged the enactment of the law as it was required by the imminent entry into force of the provisions of the new Civil Code on 1 July 2003. The article referred to the opinion of experts that there were about fifty transsexuals living in Lithuania. It was mentioned that certain Vilnius and Kaunas surgeons were properly equipped and qualified to carry out gender reassignment surgery, the cost of which could be between 3,000 and 4,000 Lithuanian litai ( approximately 870 to 1,150 euros ), excluding the cost of hormone therapy. The article stated that a number of persons had already applied for gender reassignment, but that the surgery could not be fully completed in the absence of adequate legal regulation. It was presumed that some of the Lithuanian transsexuals had thus been obliged to go abroad for treatment.", "23. In an article by the BNS on 18 June 2003 about a meeting between the Prime Minister and the heads of the Lithuanian Catholic Church, the Prime Minister was quoted as saying that it was too early for Lithuania to enact a law on gender reassignment, and that there was “no need to rush” or “copy the principles that exist in one country or another ”. The article stated that the Catholic Church had been among the most ardent opponents of such legislation. At the same time, the Prime Minister conceded that the government were obliged to prepare a Gender Reassignment Bill in view of the entry into force of Article 2.27 § 1 of the new Civil Code on 1 July 2003.", "24. The applicant submitted that since 1998 he had been in a stable relationship with a woman and that they had lived together since 1999." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "25. There were no provisions pertaining to the question of transsexuals in Lithuanian law until the adoption of the new Civil Code on 18 July 2000. The Civil Code came into force on 1 July 2001. The first paragraph of Article 2.27 (which only came into force on 1 July 2003) provides that an unmarried adult has the right to gender reassignment surgery ( pakeisti lytį ), if this is medically possible. A request by the person concerned must be made in writing. The second paragraph of this provision states that the conditions and procedure for gender reassignment surgery are established by law.", "26. On 27 December 2000 the government adopted a decree specifying the measures needed for the implementation of the new Civil Code. The preparation of a Gender Reassignment Bill was mentioned in it.", "27. Rule 109.2 of the Civil Registration Rules, approved by an order of the Minister of Justice on 29 June 2001 (in force from 12 July 2001), permits a change in civil - status documents if there is a need to change a person ’ s gender, forename and surname, following gender reassignment.", "28. Under the Residents ’ Register Act and other relevant domestic laws, every Lithuanian resident has a numerical “personal code” ( asmens kodas ), which denotes certain basic items of information, including his or her gender. Section 8 ( 2 ) of the Residents ’ Register Act provides that the first number of the personal code denotes the person ’ s gender. A personal code starting with the number 3 denotes that the person is male, whereas a code starting with number 4 means that the person is female.", "29. Section 5 of the Passport Act 2003 provides that a citizen ’ s passport must be changed if the citizen changes his or her forename, surname, gender or personal code.", "30. The Gender Reassignment Bill was prepared by a working group of the Ministry of Health in early 2003. On 3 June 2003 the government approved the Bill, sending it for consideration to the Seimas (Parliament). In an explanatory note to Parliament dated 4 June 2003, the Minister of Health indicated, inter alia, that, at present, no legal instrument regulated the conditions and procedure for gender reassignment. The Bill was initially scheduled for a plenary session of Parliament on 12 June 2003, but it was not examined that day. It was rescheduled for 17 June 2003, but was then omitted from Parliament ’ s agenda. On the same date the Speaker of Parliament circulated an official memorandum on the Bill stating, inter alia :", "“The Speaker of the Seimas ... strongly denounces gender reassignment surgery and the further consideration of a bill on the subject at a parliamentary hearing.", "[At a time] when the demographic situation in Lithuania is becoming threatened, the Seimas should not make matters worse by considering such a controversial law, which may be taken by society as an insult to the far more important problems facing the health- care system.”", "31. The order of the Minister of Health, issued on 6 September 2001, specifies the conditions under which patients in Lithuania can be referred for treatment abroad, in cases where the necessary treatment for a certain illness is not available in Lithuania. The decision is taken by a special commission of experts appointed by the Minister of Health, and the cost of such treatment is covered by the Compulsory Health Insurance Fund.", "32. On 8 August 2006 the Constitutional Court ruled that the courts were empowered to fill the gaps left in the legislation where this was necessary, inter alia, for the protection of the rights and freedoms of a particular individual.", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "33. The Government alleged that the applicant had failed to exhaust domestic remedies as regards his complaints that he had been unable to complete the course of gender reassignment. They asserted that the applicant had had the opportunity to bring a claim – by way of civil or administrative proceedings – seeking damages for the alleged inactivity of the administrative and health- care authorities and/or doctors when dealing with his gender reassignment needs. The Government maintained that such an action would have enabled the courts to fill the legislative lacunae. In this connection, the Government referred to the Constitutional Court ruling of 8 August 2006, in which a certain law-making role of the courts had been acknowledged ( see paragraph 3 2 above ). Alternatively, the domestic courts could have sought the opinion of the Constitutional Court as to whether the existence of the legal gaps in issue was in conformity with the Constitution. While the Government conceded that there was no particular domestic case-law regarding transsexuals, they argued that this factor alone was not sufficient to raise doubts about the effectiveness of a civil action as a remedy or to presume the lack of any prospects of success.", "34. The applicant contested the Government ’ s submissions.", "35. However, the Court reiterates that Article 35 § 1 of the Convention only requires the exhaustion of remedies which are available and sufficient, in theory as well as practice, on the date on which the application was lodged with it ( see, among other authorities, Stoeterij Zangersheide N.V. v. Belgium (dec.), no. 47295/99, 27 May 2004, and, conversely, Mifsud v. France (dec.) [GC], no. 57220/00, §§ 15-18, ECHR 2002 -VIII ).", "36. The Court notes that it has already dismissed this plea by the Government in its decision on the admissibility of the present application on 6 July 2006, because the applicant ’ s complaint essentially concerns the state of the law. In this connection, it observes that the relevant provisions of the Civil Code concerning gender reassignment surgery require implementation by subsidiary legislation, which has yet to be enacted (see paragraph 25 above). It would seem that such legislation is not a priority for the legislature (see paragraph 30 above). Moreover, the Constitutional Court judgment referred to by the Government ( paragraph 32 above) was adopted well after the present application was lodged with the Court. Accordingly, it cannot be cited to oppose the applicant ’ s claim. In these circumstances, the Court confirms its original conclusion that the applicant had no effective remedies available to him at the material time in respect of his specific complaints, and therefore dismisses the Government ’ s preliminary objection.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "37. The applicant complained that he had been unable to complete gender reassignment surgery owing to the lack of legal regulation on the subject. He relied on Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The parties ’ submissions", "1. The applicant", "38. The applicant alleged that his continuing inability to complete gender reassignment surgery had left him with a permanent feeling of personal inadequacy and an inability to accept his body, leading to great anguish and frustration. Furthermore, owing to the lack of recognition of his perceived, albeit preoperative, identity, the applicant constantly faced anxiety, fear, embarrassment and humiliation in his daily life. He had had to face severe hostility and taunts in the light of the general public ’ s strong opposition, rooted in traditional Catholicism, to gender disorders. Consequently, he had had to pursue an almost underground lifestyle, avoiding situations in which he might have to disclose his original identity, particularly when having to provide his personal code (see paragraph 28 above). This had left him in a permanent state of depression with suicidal tendencies.", "39. In the applicant ’ s view, the State ’ s inactivity was the main cause of his suffering. Since the entry into force of the new Civil Code, the applicant had had reasonable hopes of completing the treatment and registering his new identity. By that stage, he had already been duly diagnosed as a transsexual, had been following hormone treatment since 1998, and had undergone breast - removal surgery. However, the Gender Reassignment Bill – put before the legislature in June 2003 – had been withdrawn from the parliamentary agenda without any objective reason or explanation being given. The Government had therefore failed to fulfil their positive obligations under Article 3 of the Convention to protect the applicant from the impossible situation in which he found himself (described in the preceding paragraph ).", "40. Referring to the Court ’ s case - law, the applicant considered that Parliament ’ s inaction was to be seen as a concession to the negative attitude of the population, revealing the bias of a hostile majority towards the transsexual minority, which in itself should be seen as falling within the scope of Article 3. The applicant contended that the State ’ s failure to adopt the necessary legislation on gender reassignment surgery, which would allow him to complete his treatment and have his new gender legally recognised, amounted to inhuman and degrading treatment.", "2. The Government", "41. The Government argued that neither the Convention in general nor Article 3 in particular could be interpreted as laying down a general obligation to provide full gender reassignment surgery for transsexuals. Nor could it be maintained that such irreversible surgery was indispensable for the treatment of gender - identity disorders. In particular, general medical practice had shown that hormone therapy and partial gender reassignment surgery, such as breast removal, might in certain cases be sufficient to help a female-to-male transsexual pursue his life experience in the role of the desired gender. The applicant had not substantiated his claim that he needed the full procedure.", "42. The Government pointed out that transsexuality was a rare disorder, the scale of which was difficult to assess, particularly since freedom of movement within the European Union had encouraged many people to leave the country. There had certainly been no intention on the part of the State to humiliate or debase transsexuals. They maintained that transsexuality as a disease was by no means neglected. Indeed, the applicant had been afforded due medical assistance in the form of medical consultations and hormone treatment. The applicant was also entitled to seek confirmation of the medical necessity of full gender reassignment surgery, which might have enabled him to be referred for medical treatment abroad, financed by the State ( paragraph 3 1 above).", "43. Whilst recognising that transsexuals might encounter some difficulties in their daily lives, the Government asserted that those difficulties were not intentionally created nor inflicted by the State. On the contrary, steps had been taken to alleviate the problems, such as allowing the applicant to change his name. A change in the entries for all official documents, including the personal code, could be effected on completion of a transsexual ’ s gender reassignment surgery.", "44. Furthermore, the State could not be held responsible for the alleged deterioration of the applicant ’ s health, as he had chosen – on his own initiative and disregarding the warnings of doctors – to continue his hormone treatment unofficially, beyond that prescribed for two months in 1998.", "45. In sum, the Government maintained that the alleged ill-treatment did not attain the minimum level of severity in order to fall within the scope of Article 3. They considered that the issue of the regulation of gender reassignment surgery and the recognition of transsexuals ’ identity fell to be dealt with under Article 8 of the Convention alone. In any case, the Government asserted, the State had fulfilled its positive obligations under both Articles 3 and 8 by providing adequate health care for the treatment of disease and avoidable death, including appropriate treatment for transsexuals – psychiatric, surgical, hormonal, and so on.", "B. The Court ’ s assessment", "46. The Court observes that the prohibition under Article 3 of the Convention is of an absolute nature, but that the kind of treatment qualified as inhuman and degrading will depend upon an examination of the facts of the specific case in order to establish whether the suffering caused was so severe as to fall within the ambit of this provision. Moreover, according to its established case-law, Article 3 entails a positive obligation on the part of the State to protect the individual from acute ill- treatment, whether physical or mental, whatever its source. Thus if the source is a naturally occurring illness, the treatment for which could involve the responsibility of the State but is not forthcoming or is patently inadequate, an issue may arise under this provision ( see, for example, D. v. the United Kingdom, 2 May 1997, §§ 51-54, Reports of Judgments and Decisions 1997-III, and, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, § § 4 9-52, ECHR 2002 ‑ III ).", "47. However, an examination of the facts of the present case, whilst revealing the applicant ’ s understandable distress and frustration, does not indicate circumstances of such an intense degree, involving the exceptional, life-threatening conditions found in the cases of Mr D. and Mrs Pretty cited above, as to fall within the scope of Article 3 of the Convention. The Court considers it more appropriate to analyse this aspect of the applicant ’ s complaint under Article 8 (respect for private life) below.", "48. Consequently, the Court finds no violation of Article 3 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "49. The applicant alleged that the State had failed to fulfil its positive obligations under Article 8, which provides, in so far as relevant :", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The applicant", "50. Referring to his arguments under Article 3 ( see paragraphs 38 ‑ 40 above ), the applicant repeated that the State had failed to provide him with a lawful opportunity to complete his gender reassignment and obtain full recognition of his post-operative gender. He reiterated that the right to gender reassignment surgery had been envisaged by the new Civil Code since 2003, but no subsidiary legislation had been passed to implement that right. The applicant further emphasised that, although he had been able to change his name to a gender-neutral form, the law did not provide for a change in the personal code of preoperative transsexuals (see paragraph 28 above). As a result he had forgone numerous opportunities in many areas, such as, employment, health care, social security, freedom of movement, business transactions, socialising and personal development in order to avoid hostility and taunts. He had thus been condemned to legal and social ostracism because he looked male but his personal documents identified him as a woman.", "51. The applicant argued that there was no public interest whatsoever militating against the interests of medically recognised transsexuals in completing their gender change and having it legally entrenched. Furthermore, the absence of necessary legislation was disproportionate to the protection of any purported countervailing interest of the community as a whole. Accordingly, the State had failed in its positive obligations under Article 8 to complete the measures it had already envisaged to protect the applicant ’ s human dignity and prevent intrusion into his private life.", "2. The Government", "52. Further to their pleadings under Article 3 ( see paragraphs 4 1 ‑ 4 5 above ), the Government maintained that a wide margin of appreciation should be afforded to States in regulating gender reassignment and deciding whether to recognise a person ’ s new identity where the required surgery was incomplete. In that connection they cited, inter alia, the cultural specificities and religious sensitivities of Lithuanian society regarding the gender reassignment debate.", "53. In so far as the regulation of gender reassignment surgery was concerned, the Government reiterated their claim that the medical treatment afforded to transsexuals in Lithuania was capable of guaranteeing respect for private life. Moreover, Lithuanian law entitled transsexuals to have the entries in official documents changed, including their personal code, after full gender reassignment.", "54. As regards the preoperative recognition of a diagnosed gender, the Government argued that there was an overriding public interest in ensuring legal certainty as to a person ’ s gender and the various relationships between people. In this connection, they pointed out that the applicant had indeed been able to make a gender-neutral change in his name.", "55. The Government again stressed that the applicant had failed to provide evidence as to the necessity and feasibility of full gender reassignment surgery in his case. They had recently suggested to the applicant that he undergo a comprehensive psychiatric and physical examination of his current state of health with a view to assessing his present possibilities and needs, but the applicant had declined that offer. The Government expressed a certain concern about the level of expertise available in Lithuania for such rare and specialised surgery at present, whereas surgery performed by practising experts abroad might be an appropriate temporary solution to the problems faced by transsexuals, for which the State could provide financial assistance (paragraph 3 1 above).", "B. The Court ’ s assessment", "56. The Court would emphasise the positive obligation upon States to ensure respect for private life, including respect for human dignity and the quality of life in certain respects ( see, mutatis mutandis, Pretty, cited above, § 65). It has examined several cases involving the problems faced by transsexuals in the light of present-day conditions, and has noted and endorsed the evolving improvement of State measures to ensure their recognition and protection under Article 8 of the Convention ( see, for example, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002 ‑ VI; Van Kück v. Germany, no. 35968/97, ECHR 2003 ‑ VII; and Grant v. the United Kingdom, no. 32570/03, ECHR 2006 -VII ). Whilst affording a certain margin of appreciation to States in this field, the Court has nevertheless held that States are required, by their positive obligation under Article 8, to implement the recognition of the gender change in post-operative transsexuals through, inter alia, amendments to their civil - status data, with its ensuing consequences ( see, for example, Christine Goodwin, §§ 71- 93, and Grant, §§ 39-44, both cited above ).", "57. The present case involves another aspect of the problems faced by transsexuals : Lithuanian law recognises their right to change not only their gender but also their civil status (paragraphs 25, 27, and 29 above). However, there is a gap in the relevant legislation; there is no law regulating full gender reassignment surgery. Until such a law is enacted, no suitable medical facilities appear to be reasonably accessible or available in Lithuania (paragraphs 13, 16, 19, 2 2, 25, 30 and 55 above). Consequently, the applicant finds himself in the intermediate position of a preoperative transsexual, having undergone partial surgery, with certain important civil - status documents having been changed. However, until he undergoes the full surgery, his personal code will not be amended and, therefore, in certain significant situations in his private life, such as his employment opportunities or travel abroad, he remains a woman (paragraphs 19 ‑ 21 above).", "58. The Court notes that the applicant has undergone partial gender reassignment surgery. It is not entirely clear to what extent he would be able to complete the procedure privately in Lithuania ( see the newspaper article referred to in paragraph 22 above). However, this consideration has not been put forward by either party to the present case so, presumably, it is to be ruled out. As a short - term solution, it may be possible for the applicant to have the remaining operation abroad, financed in whole or in part by the State (paragraphs 3 1, 4 2 and 55 above).", "59. The Court finds that the circumstances of the case reveal a limited legislative gap in gender reassignment surgery, which leaves the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his true identity. Whilst budgetary restraints in the public health service might have justified some initial delays in implementing the rights of transsexuals under the Civil Code, over four years have elapsed since the relevant provisions came into force and the necessary legislation, although drafted, has yet to be enacted (paragraph 30 above). Given the few individuals involved (some fifty people, according to unofficial estimates – see paragraph 22 above), the budgetary burden on the State would not be expected to be unduly heavy. Consequently, the Court considers that a fair balance has not been struck between the public interest and the rights of the applicant.", "60. In the light of the above considerations, the Court concludes that there has been a violation of Article 8 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION", "61. The applicant complained that his inability to complete his gender reassignment had prevented him from marrying and founding a family, in violation of Article 12 of the Convention, which reads as follows:", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”", "A. The parties ’ submissions", "62. The applicant submitted that he had been living as a man for some ten years now and had been diagnosed with a gender- identity disorder nine years ago. He had been in a stable relationship with a woman since 1998 and they had been living together since 1999 (paragraph 2 4 above). They wished to legalise their long-lasting relationship, marry and establish a family through adoption.", "63. The Government argued that the applicant could not be considered a victim or even a potential victim of the alleged violation, in that the relevant rules of civil law did not prevent a transsexual from marrying in his new identity following gender reassignment surgery. The key issue was still that of gender recognition and, as such, it was more appropriately dealt with under Article 8 of the Convention.", "B. The Court ’ s assessment", "64. The Court observes that the applicant ’ s complaint under Article 12 is premature in that, should he complete full gender reassignment surgery, his status as a man would be recognised together with the right to marry a woman. In these circumstances, the Court agrees with the Government that the key issue is still that of the gap in legislation, which has been analysed under Article 8 above. Consequently, it finds it unnecessary to examine this aspect of the case separately under Article 12 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 3 AND 8", "65. The applicant argued that the lack of legal regulation in Lithuania regarding the treatment and status of transsexuals disclosed a discriminatory attitude on the part of the Lithuanian authorities, in breach of Article 14 of the Convention, which provides as follows :", "“The enjoyment of the rights and freedoms set forth in [ the ] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "66. The applicant alleged that the failure of the State to pass the necessary legislation on gender reassignment was essentially due to the prejudices and hostile attitudes of the majority of the Lithuanian population towards transsexuals as a minority group, and served no legitimate aim. No objective and reasonable justification had been put forward by the Government for the indefinite postponement of the enactment of the subsidiary legislation required by the Civil Code. As a result, the applicant had been denied vital opportunities as a transsexual, particularly as regards the treatment of his gender - identity disorder and the effective legal recognition of his status.", "67. The Government contested those allegations. They claimed that no separate issue arose under this provision that had not already been dealt with under Articles 3 and 8.", "B. The Court ’ s assessment", "68. The Court again finds that, in the circumstances of the present case, the applicant ’ s complaint of discrimination is essentially the same, albeit seen from a different angle, as that which it has considered above under Articles 3 and 8 of the Convention ( see Van Kück, cited above, § 91). Consequently, it finds it unnecessary to examine this aspect of the case separately under Article 14 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "69. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "70. The applicant claimed 33,589.46 Lithuanian litai (LTL) (approximately 9, 728 euros (EUR) ) for pecuniary damage, which represented:", "( a) his loss of earnings, given his limited employment prospects in order to avoid drawing attention to his status (LTL 26,391);", "( b) compensation for private and unofficial medical treatment, which was more costly than State health care, but did not require him to reveal his identity (LTL 4,318 .46 ); and", "( c) compensation for his prolonged hormone treatment, while awaiting the legal possibility of completing the gender reassignment procedure (LTL 2, 880).", "71. The applicant further claimed EUR 47,680 to cover the cost of the eventual completion of gender reassignment surgery. In this connection, the applicant argued that, even if the legal gaps in Lithuanian law were eventually filled, there would still be no prospect of completing the gender reassignment surgery in Lithuania within a reasonable time. He therefore contended that this sum was needed to carry out the surgery abroad.", "72. Finally, the applicant claimed EUR 200,000 for the non-pecuniary damage resulting from the stress, anxiety, fear and humiliation which he had suffered, as well as his inability to enjoy his rights.", "73. The Government considered these claims to be unsubstantiated and speculative. They noted that, before the Civil Code had come into force on 1 July 2003, the applicant had had no right to treatment for his disorder under domestic law. Moreover, in relation to further surgery, the applicant had not submitted any evidence of his current needs and state of health.", "74. The Court notes the limited nature of the violation which it has found ( see paragraphs 59-60 above). It considers that the applicant ’ s claim for pecuniary damage would be satisfied by the enactment of the subsidiary legislation at issue in the present case within three months of the present judgment becoming final in accordance with Article 44 § 2 of the Convention. However, should that prove impossible, and in view of the uncertainty about the medical expertise currently available in Lithuania, the Court is of the view that this aspect of the applicant ’ s claim could be satisfied by his having the final stages of the necessary surgery performed abroad and financed, at least in part, by the respondent State. Consequently, as an alternative in the absence of any such subsidiary legislation, the Court would award the applicant EUR 40,000 in pecuniary damage.", "75. As regards the applicant ’ s claim for non-pecuniary damage, the Court, deciding on an equitable basis as required by Article 41 of the Convention, awards the applicant EUR 5 ,000.", "B. Costs and expenses", "76. The applicant claimed EUR 9,403 for legal costs and expenses incurred in the proceedings before the Court. The costs of travel to the Court hearing, together with accommodation and other related expenses, were claimed in the amount of EUR 603.", "77. The Government submitted that the claim for legal costs and expenses appeared excessive and unjustified, particularly as the applicant had received legal aid from the Council of Europe.", "78. The Court notes that the applicant had the benefit of legal aid from the Council of Europe for his representation in the total amount of EUR 2, 071.81 in the present case. It concludes that this amount is sufficient in the circumstances.", "C. Default interest", "79. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1963 and lives in Helsinki.", "10. The applicant was born male. She always felt that she was a female in a male body but decided to cope with the situation. In 1996 she married a woman and in 2002 they had a child.", "11. The applicant started feeling worse in 2004, and decided in 2005 to seek medical help. In April 2006 she was diagnosed as a transsexual. Since that time, she has lived as a woman. On 29 September 2009 she underwent gender reassignment surgery.", "12. On 7 June 2006 the applicant changed her first names and renewed her passport and driver ’ s licence but she could not have her identity number changed. The identity number still indicates that she is male, as does her passport.", "A. Proceedings to have her identity number changed", "13. On 12 June 2007 the applicant requested the local registry office ( maistraatti, magistraten ) to confirm her status as female and to change her male identity number to a female one as it no longer corresponded to the reality.", "14. On 19 June 2007 the local registry office refused the applicant ’ s request. It found that, under sections 1 and 2 of the Transsexuals (Confirmation of Gender) Act ( laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet ), confirmation of such status required that the person was not married or that the spouse gave his or her consent (see paragraph 2 9 below). As the applicant ’ s wife had not given her consent to the transformation of their marriage into a registered partnership ( rekisteröity parisuhde, registrerat partnerskap ), the applicant ’ s new gender could not be recorded in the population register.", "15. On 6 July 2007 the applicant instituted proceedings in the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) complaining, inter alia, that her wife ’ s decision not to give her consent, which she was perfectly entitled to withhold as they both preferred to remain married, meant that the applicant could not be registered as female. A divorce would be against their religious convictions. A registered partnership did not provide the same security as marriage and would mean, among other things, that their child would be placed in a different situation from children born in wedlock.", "16. On 5 May 2008 the Helsinki Administrative Court dismissed the applicant ’ s complaint on the same grounds as the local registry office. Moreover, it found, inter alia, that the impugned decision of 19 June 2007 was not contrary to Article 6 of the Finnish Constitution as same-sex partners had the possibility, by registering their relationship, to benefit from family - law protection in a manner partially comparable to marriage. Similarly, sections 1 and 2 of the Transsexuals ( Confirmation of Gender ) Act did not violate the constitutional rights of the applicant ’ s child.", "17. On 8 May 2008 the applicant appealed to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltnings-domstolen ), reiterating the grounds submitted before the local registry office and the Helsinki Administrative Court. She also asked the court to make a request for a preliminary ruling to the Court of Justice of the European Communities, in particular on the interpretation of Article 8 of the Convention. Referring to Articles 8 and 14 of the Convention, the applicant claimed that the State should not tell her that a registered partnership was appropriate for her, especially when this required that her wife become a lesbian. Their sexual identity was a private matter which could not be a condition for confirmation of gender. Transgenderism was a medical condition falling within the scope of private life. The State was violating her right to privacy every time the male identity number revealed that she was a transsexual. Moreover, she claimed that if her marriage were turned into a registered partnership, it would mean that she could no longer be a legal father to her child and could not be her mother either, as a child could not have two mothers.", "18. On 3 February 2009 the Supreme Administrative Court refused the applicant ’ s request to apply for a preliminary ruling to the Court of Justice of the European Communities and dismissed her appeal. It found that by enacting the Transsexuals ( Confirmation of Gender ) Act the legislature had not intended to change the fact that only a man and a woman could marry and that same-sex partners could have their relationship judicially confirmed by registering it. The European Court of Human Rights had found, under Article 12 of the Convention, that there were no acceptable grounds for denying transsexuals the right to marry but that the margin of appreciation in this respect was wide. It was not possible under Finnish law for persons of the same sex to marry, but in such a case they could enter into a registered partnership. As to its legal and economic consequences, a registered partnership was essentially comparable to marriage. The question of transforming the institution of marriage into a gender-neutral one brought significant ethical and religious values into play and required the enactment of an Act of Parliament. The current state of the law was within the margin of appreciation afforded to the State by the Convention.", "B. Extraordinary proceedings", "19. On 29 October 2009 the applicant lodged an extraordinary appeal with the Supreme Administrative Court, requesting it to overturn its previous decision of 3 February 2009. She stated that she had undergone gender reassignment surgery on 29 September 2009 and that she could no longer prove that she had been male as indicated by her identity number and passport. Even though, for marriage purposes, she would still be considered as male, the fact remained that she should not be discriminated against on account of her gender.", "20. On 18 August 2010 the Supreme Administrative Court dismissed the extraordinary appeal.", "C. Other proceedings", "21. On an unspecified date the applicant also lodged a complaint with the Ombudsman for Equality ( Tasa-arvovaltuutettu, Jämställdhets-ombudsmannen ), complaining, inter alia, that she had the wrong identity number.", "22. On 30 September 2008 the Ombudsman for Equality stated that she could not take a stand on the identity number issue as the matter had already been dealt with by the Administrative Court and the Ombudsman was not competent to supervise the courts. Moreover, the matter was pending before the Supreme Administrative Court." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Finnish Constitution", "23. Article 6 of the Finnish Constitution ( Suomen perustuslaki, Finlands grundlag; Law no. 731/1999) provides as follows.", "“Everyone is equal before the law.", "No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.", "Equality of the sexes shall be promoted in society and working life, especially in the determination of pay and other terms of employment, as provided for in more detail by an [implementing] Act.”", "B. The Marriage Act", "24. Section 1 of the Marriage Act ( avioliittolaki, äktenskapslagen; Law no. 411/1987) provides that marriage is between a woman and a man.", "25. Section 115 of the same Act (as amended by Law no. 226/2001) provides as follows :", "“A marriage concluded between a woman and a man in a foreign State before an authority of that State shall be valid in Finland if it is valid in the State in which it was concluded or in a State of which either spouse was a citizen or in which either spouse was habitually resident at the time of conclusion of the marriage.”", "C. The Registered Partnerships Act", "26. Under section 1 of the Registered Partnerships Act ( laki rekisteröidystä parisuhteesta, lagen om registrerat partnerskap; Law no. 950/2001), a partnership between two persons of the same sex and over 18 years of age may be registered as provided by the Act.", "27. Section 8 (1) of the same Act provides :", "“ The registration of the partnership shall have the same legal effects as the conclusion of marriage, unless otherwise provided.”", "D. The Transsexuals ( Confirmation of Gender ) Act", "28. Section 1 of the Transsexuals ( Confirmation of Gender ) Act ( laki transseksuaalin sukupuolen vahvistamisesta, lagen om fastställande av transsexuella personers könstillhörighet; Law no. 563/2002) provides that it shall be established that a person belongs to the opposite sex to the one noted in the population register if he or she", "“ ( 1) provides medical certification that he or she permanently feels that he or she belongs to the opposite gender and lives in the corresponding gender role and that he or she has been sterilised or is for some other reason incapable of reproducing;", "( 2) is over 18 years of age;", "( 3) is not married or in a registered partnership; and", "( 4) is a Finnish citizen or is resident in Finland.”", "29. Section 2 of the Act provides for exceptions from the marital - status requirement. A marriage or registered partnership does not prevent the confirmation of gender if the spouse or the partner personally gives his or her consent to it before a local registry office. Where membership of the opposite sex is confirmed, a marriage is turned automatically, without further action, into a registered partnership and a registered partnership into a marriage. This change is noted in the population register.", "30. The travaux préparatoires of the Transsexuals ( Confirmation of Gender ) Act (Government Bill HE 56/2001 vp ) state, inter alia, that established paternity cannot be annulled solely on the ground that the man has subsequently become a woman. Similarly, a woman who has given birth legally remains the child ’ s mother even if she subsequently becomes a man. The duties of custody, care and maintenance of a child are primarily based on parenthood. The change of gender of a parent does not therefore affect those rights and obligations.", "III. COMPARATIVE LAW", "31. From the information available to the Court, it would appear that ten member States of the Council of Europe permit same-sex marriage (Belgium, Denmark, France, Iceland, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom (England and Wales only)).", "32. It would also appear that twenty-four member States (Albania, Andorra, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Estonia, Georgia, Greece, Latvia, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, Monaco, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Slovenia and the former Yugoslav Republic of Macedonia ) have no clear legal framework for legal gender recognition or no legal provisions that specifically deal with the status of married persons who have undergone gender reassignment. The absence of legal regulations in these member States leaves a number of questions unanswered, among which is the fate of a marriage concluded before gender reassignment surgery. In six member States ( Italy, Hungary, Ireland, Malta, Turkey and Ukraine) relevant legislation on gender recognition exists. In these States the legislation specifically requires that a person be single or divorced, or there are general provisions in the civil codes or family -law provisions stating that after a change of sex any existing marriage is declared null and void or dissolved. Exceptions allowing a married person to gain legal recognition of his or her acquired gender without having to end a pre-existing marriage exist in only three member States (Austria, Germany and Switzerland).", "33. It would thus appear that, where same-sex marriage is not permitted, only three member States permit an exception which would allow a married person to gain legal recognition of his or her acquired gender without having to end his or her existing marriage. In twenty-four member States the position is rather unclear, given the lack of specific legal regulations in place.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "34. The applicant complained under Article 8 of the Convention that her right to private and family life had been violated when the full recognition of her new gender was made conditional on the transformation of her marriage into a registered partnership.", "35. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The Chamber judgment", "36. In its judgment of 13 November 2012, the Chamber found that the facts of the case fell within the ambit of Article 8 of the Convention and within the scope of the concept of “private life”. There had been an interference with the applicant ’ s right to respect for her private life in that she had not been granted a new female identity number. This interference had a basis in national law, namely, in section 2 (1) of the Transsexuals ( Confirmation of Gender ) Act. The interference was thus “in accordance with the law” and pursued the legitimate aim of protecting “health and morals” and the “rights and freedoms of others”.", "37. As to whether the impugned measures were necessary in a democratic society, the Chamber noted that the applicant and her spouse were lawfully married under domestic law and that they wished to remain married. In domestic law, marriage was only permitted between persons of opposite sex and same-sex marriages were not permitted. The applicant could obtain a new identity number as a woman only if her spouse consented to their marriage being turned into a registered partnership. If no such consent was obtained, the applicant had a choice between remaining married and tolerating the inconvenience caused by the male identity number, or divorcing her spouse.", "38. The Chamber considered that there were two competing rights which needed to be balanced against each other, namely, the applicant ’ s right to respect for her private life by obtaining a new female identity number and the State ’ s interest in maintaining the traditional institution of marriage intact. Obtaining the former while remaining married would imply a same-sex marriage between the applicant and her spouse, which was not allowed by the current legislation in force in Finland. The Chamber reiterated that, according to the Court ’ s case-law, Article 12 of the Convention did not impose an obligation on Contracting States to grant same-sex couples access to marriage. Nor could Article 8, a provision of more general purpose and scope, be interpreted as imposing such an obligation. The Court had also held that the matter of regulating the effects of the change of gender in the context of marriage fell within the appreciation of the Contracting State.", "39. The Chamber noted that consensus on same-sex marriages was evolving in the European context, and that some Council of Europe member States had already included such a possibility in their domestic legislation. In Finland, however, this possibility did not exist, although it was currently being examined by Parliament. On the other hand, the rights of same-sex couples were currently protected by the possibility to register a partnership. While it was true that the applicant faced daily situations in which the incorrect identity number created inconvenience for her, the Chamber considered that the applicant had a genuine possibility to change that state of affairs: her marriage could be turned at any time, ex lege, into a registered partnership with the consent of her spouse. If no such consent was obtained, the applicant had the possibility to divorce.", "40. For the Chamber, it was not disproportionate to require that her spouse give consent to such a change as her rights were also at stake. Nor was it disproportionate that the applicant ’ s marriage be turned into a registered partnership as the latter was a genuine option which provided legal protection for same-sex couples that was almost identical to that of marriage. Moreover, although there was a child from the marriage, there was no suggestion that this child, or any other individual, would be adversely affected if the applicant ’ s marriage were turned into a registered partnership. The applicant ’ s rights and obligations arising either from paternity or parenthood would not be altered if her marriage were turned into a registered partnership. The Chamber therefore considered that the effects of the Finnish system had not been shown to be disproportionate and that a fair balance had been struck between the competing interests. There had accordingly been no violation of Article 8 of the Convention.", "B. The parties ’ submissions", "1. The applicant", "41. The applicant argued that, under the domestic law, she was forced to choose between two fundamental rights recognised under the Convention, namely, her right to sexual self-determination and her right to remain married, with the result that she was effectively compelled to forego one of them. Such legislation placed her in a quandary. She referred in that respect to a judgment of the Federal Constitutional Court of Germany of 27 May 2008. The object of her application was not to extend marriage rights to same-sex couples but only to preserve her pre-existing marriage to her spouse. In her case, same-sex marriage was an unintended and accidental outcome of legal gender recognition. She sought protection of a pre-acquired right and not the presumptive right to marry a woman.", "42. The applicant claimed that there was an interference with both her private life and family life. Following the Court ’ s line of reasoning in Parry v. the United Kingdom ( ( dec. ), no. 42971/05, ECHR 2006 ‑ XV ) and Dadouch v. Malta ( no. 38816/07, 20 July 2010 ), the family-life aspect of the case could not be excluded. The margin of appreciation should be narrower where a particularly important facet of an individual ’ s existence or identity was at stake. In her submission, the Court should narrow it down even further and move towards removing the divorce requirement in the legal gender recognition context. The margin of appreciation could not extend so far as to allow States to terminate a marriage at their discretion.", "43. The applicant submitted that the divorce requirement imposed by the Transsexuals (Confirmation of Gender) Act was an unnecessary and disproportionate interference with her Article 8 rights. The balancing act carried out by the Chamber had been fundamentally flawed for several reasons.", "44. Firstly, the Chamber had failed to weigh up in the balancing exercise the applicant ’ s and her wife’s acquired right to be married. If the applicant had chosen legal gender recognition, this would have terminated her marriage either through divorce or by conversion into a registered partnership. Both scenarios involved termination of the marriage. Conversion into a registered partnership was akin to divorce as the consequences of the conversion only applied for the future. As the spouse ’ s consent was needed, divorce in these circumstances was “forced” by the State. The compulsory termination of the applicant ’ s marriage would have substantially undermined her rights under the Convention as well as the rights of her spouse and daughter. Such dissolution of a valid marriage would have contradicted the underlying commitment to permanence in marriage, distinguishing it from other relationships. Marriage continued to qualify for the highest degree of protection under Article 8 of the Convention. The applicant and her wife had been married for seventeen years, still lived together and had had a child together. The survival of their relationship, despite the gender reassignment of one spouse, demonstrated a high degree of mutual commitment between the spouses. Important distinctions remained between marriage and a registered partnership: when the female partner in a registered partnership gave birth, both parents did not automatically become parents as in the case of marriage. Nor was adoption possible if neither of the parents was a biological parent of the child to be adopted. The applicant and her family would have lost these rights, which were not insignificant, if they had agreed to enter into a registered partnership. It was also doubtful to what extent the legal parent-child relationship between the applicant and her daughter would have survived as there were no provisions to that effect in the Transsexuals (Confirmation of Gender) Act. The spouses had contracted marriage on the understanding, inspired by their strong religious beliefs, that it would last for life. They were not willing to relinquish their marriage under any circumstances. The applicant ’ s gender reassignment did not necessarily transform the couple into a homosexual couple. The applicant ’ s wife, who had entered into the heterosexual relationship seventeen years ago, continued to be heterosexual. Accordingly, the downgrading of the applicant ’ s relationship to a registered partnership did not reflect the reality of the applicant ’ s wife ’ s position. She was forced to make an impossible choice between supporting the applicant or preserving their marriage. Their child ’ s situation would be similar to that of children born out of wedlock.", "45. Secondly, the applicant claimed that the Chamber had not given sufficient weight to her right to sexual self-determination. The lack of legal recognition of the applicant ’ s female gender had had profound implications for her daily life. She had effectively been forced to reveal her transsexual condition to complete strangers in daily situations that most people took for granted. For example, the applicant travelled extensively in connection with her job but her passport still indicated that she was a man. When she travelled on her current passport, she was forced to buy airline tickets with the title “ Mr ”. Her appearance with female characteristics at the airport, carrying a passport which stated her gender as male, had inevitably led to intrusive questioning, delays, embarrassment and distress. As Finland had allowed the applicant to change her first names to correspond to her female identity, it was illogical to deny her legal gender recognition at this juncture, thus leaving her stranded in the territory between two sexes for a potentially indeterminate period. The applicant had not chosen to become transsexual and should therefore not be punished by being deprived of her marriage. The express requirement that legal gender recognition was contingent on the termination of marriage did not allow the Finnish courts to make an individualised assessment taking into account the applicant ’ s circumstances. In Schlumpf v. Switzerland ( no. 29002/06, 8 January 2009 ), the Court had found a violation in similar circumstances. The domestic courts had also failed to consider other alternatives that did not require the termination of marriage.", "46. Thirdly, the applicant argued that the Chamber ’ s assumption that the State ’ s interest in protecting marriage would be fatally undermined if transsexuals were allowed to marry was inaccurate. The Chamber had wrongly assumed that the only interest of public value involved in the case was protecting the heterosexual character of marriage. The applicant did not specifically challenge the importance of preserving heterosexual marriage but claimed that forcing her to divorce in order to achieve legal gender recognition was an unnecessary and disproportionate means of achieving the State ’ s objective. Allowing transsexuals to marry would only marginally affect heterosexual marriage as such cases were extremely rare. De facto or de jure same-sex marriages might already exist in Finland as the marriage of persons in the same situation as the applicant created the appearance of same-sex marriage. Moreover, legal gender recognition obtained in a foreign State was also valid in Finland.", "47. Moreover, the applicant claimed that the Chamber had failed to take due account of the recent international trends towards abandonment of the compulsory divorce requirement, legalisation of same-sex marriage and divorce by free consent. Abandoning compulsory divorce requirements was achieved by either explicitly allowing transsexuals to marry or by legalising same-sex marriage. The applicant referred to comparative - law studies concerning legal gender recognition and marital - status requirements.", "48. In Finland there had also been a trend towards abolishing the compulsory divorce requirement. The Ombudsman for Equality had suggested in 2012 that equal marriage rights for all could be a solution which would allow the continuation of marriage where one spouse was transgender. The Commissioner for Human Rights of the Council of Europe had also called for abolition of the divorce requirement following his visit to Finland in 2012. In that context, the Finnish Government had committed themselves to establishing a working group to examine the possibility of reforming the impugned legislation. There was also a European and international trend towards allowing same-sex marriages. Ten European States currently allowed same-sex marriage. The situation in Finland was also expected to change in the near future. In February 2013 the Parliamentary Law Committee had voted down a draft bill to that effect by a narrow majority of nine votes to eight. Public support for same-sex marriage had also grown from 45 % in 2006 to 58 % in March 2013.", "2. The Government", "49. The Government agreed with the Chamber ’ s reasoning and conclusion to the effect that there had been no violation of Article 8 of the Convention in the present case. They noted that the impugned legislation had been passed in order to prevent inequality caused by varying administrative practices throughout the country and in order to set coherent preconditions for legal gender recognition. The bill had initially required that the person requesting legal gender recognition be unmarried or not in a registered partnership and had not allowed his or her marriage or registered partnership to continue in another legally recognised form. This had been seen as unreasonable during the legislative procedure and therefore the conversion mechanism had been introduced into the provision. Since the entry into force of the Transsexuals (Confirmation of Gender) Act, at least fifteen marriages had been turned into registered partnerships and sixteen registered partnerships into marriages. In nine cases the spouses had had children together and in none of these cases had the legal parent -child relationship changed.", "50. The Government noted that the applicant had on many occasions in her observations erroneously referred to compulsory divorce legislation. However, if the spouse ’ s consent was received, the marriage turned automatically, ex lege, into a registered partnership. The expression “turns into” in section 2 of the Transsexuals (Confirmation of Gender) Act had been explicitly used to illustrate the fact that the legal relationship continued with only a change of title and minor changes to the content of the relationship. This continuity preserved certain derived rights, such as a widower ’ s pension, and did not create a right or obligation to divide the property between the spouses. The length of the partnership was calculated from the beginning of the relationship, not from the change of title of it. Moreover, the rights and obligations pertaining to parenthood did not depend on the gender of the parent. Consequently, there was no obligatory divorce in Finland but, on the contrary, the possibility of divorcing was at the applicant ’ s own discretion. Finnish legislation offered the chance to reconcile both the right to sexual self-determination and the right to marry, in the form of a registered partnership.", "51. The Government pointed out that the only differences between marriage and registered partnership appeared in two areas : establishment of paternity on the basis of marriage did not apply to registered partnerships, nor did the provisions of the Adoption Act or the Names Act regarding the family name of the spouse. However, a registered partner could adopt the other partner ’ s child. Those exceptions were applicable only to those cases in which parenthood had not been established beforehand. Paternity presumed on the basis of marriage or established paternity could not be annulled on the ground that the man later underwent gender reassignment and became a woman. Nor did the father ’ s gender reassignment have any legal effects on his responsibility for the care, custody or maintenance of a child as such responsibility was based on parenthood, irrespective of sex or form of partnership. The applicant was not even claiming that her legal rights and obligations would be reduced were her marriage turned into a registered partnership, but rather relied on the social and symbolic significance of marriage. The Government stressed that the applicant ’ s legal rights and obligations vis-à-vis her child arising either from paternity or parenthood would not be altered and the applicant had not produced any evidence to the contrary. Finnish law did not impose compulsory divorce on the applicant, nor annulment or dissolution of marriage. Nor was there any evidence of possible implications for the applicant ’ s private or family life as she could continue her family life without any interference.", "52. The Government noted that, while the Federal Constitutional Court of Germany, in its judgment of 27 May 2008, had found a similar situation to be unconstitutional, it had left it to the legislature to decide by what means to remedy the situation. According to that court, a marriage could be transformed into a registered civil partnership or a legally secured civil partnership sui generis but the rights acquired by the couple and the duties imposed on them by the marriage had to remain intact. The Finnish provisions were thus in line with the said judgment of the Federal Constitutional Court of Germany.", "53. The Government concluded that there was still no European consensus on allowing a transsexual ’ s marriage to subsist following post-operative legal gender recognition or on allowing same-sex marriages. Consequently, the State ’ s margin of appreciation should be wide and it should be able to regulate the effects of the change of gender on pre-existing marriages.", "3. Third - party observations", "(a) Amnesty International", "54. Amnesty International noted that all human rights treaties should, as far as possible, be interpreted in harmony in order to give rise to a single set of compatible obligations. It was well-established in international human rights law that the general prohibition of discrimination included a prohibition of discrimination on the ground of sexual orientation. Both gender identity and sexual orientation related to highly subjective notions of self. Often, discrimination based on sexual orientation or gender identity found its expression in relation to family relationships. In the vast majority of those cases, the adjudicating bodies concluded that the States had not put forward reasonable, convincing, objective or weighty arguments to justify discrimination against individuals on the ground of their sexual orientation. Stereotypes constituted a form of discrimination when they resulted in differentiated treatment that nullified or impaired the enjoyment of human rights or fundamental freedoms. Many differences in treatment based on sexual orientation had their roots in stereotypes about gender roles.", "55. Same-sex relationships were gaining legal recognition equal to that of different-sex couples in many jurisdictions but the laws in many countries still made many distinctions. If two individuals in a couple identified as women, they were assumed to be lesbian. This conflation affected a person ’ s dignity and rights by forcing a gender definition that might not align with the individual ’ s sense of self. Such conflation was also unnecessary if the law conferred the same status and rights on all couples. States could not impose one particular vision of rights on those who did not share that vision. Traditions and values could not justify a limitation of rights even if these traditions and values were shared by the majority of society.", "(b) Transgender Europe", "56. Transgender Europe submitted in its observations comparative information regarding the situation in different Council of Europe member States as far as legal recognition of the new gender of transgender persons was concerned. In some Council of Europe member States transgender persons could not obtain any legal recognition of their gender, while in other member States legal gender recognition was dealt with in a variety of different ways. Some of the member States either allowed same-sex couples to marry or offered the option of a registered partnership. Of the States which offered the option of a registered partnership, some States currently required mandatory termination of marriage while some other States did not. Generally, there was a strong tendency among the Council of Europe member States to review their approach as a result of Recommendation Rec (2010)5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010. Most of the new laws, revisions and current political discussions showed that member States took greater account of the right to self-determination of transgender individuals when designing legislation.", "C. The Court ’ s assessment", "1. Applicability of Article 8 of the Convention", "57. In the instant case the applicant formulated her complaint under Article 8 of the Convention and the Government did not dispute the applicability of that provision.", "58. The Court notes that the applicant sought to have her identity number changed from a male to a female one because, having undergone male- to - female gender reassignment surgery, her old male identity number no longer corresponded to the reality.", "59. The Court has held on numerous occasions that a post-operative transsexual may claim to be a victim of a breach of his or her right to respect for private life contrary to Article 8 of the Convention on account of the lack of legal recognition of his or her change of gender (see, for example, Grant v. the United Kingdom, no. 32570/03, § 40, ECHR 2006 ‑ VII, and L. v. Lithuania, no. 27527/03, § 59, ECHR 2007 ‑ IV ). In the present case it is not disputed that the applicant ’ s situation falls within the notion of “private life” within the meaning of Article 8 of the Convention.", "60. The Court notes that the present case also involves issues which may have implications for the applicant ’ s family life. Under the domestic law, the conversion of the applicant ’ s existing marriage into a registered partnership requires the consent of her wife. Moreover, the applicant and her wife have a child together. Accordingly, the Court is of the view that the applicant ’ s relationship with her wife and child also falls within the notion of “family life” within the meaning of Article 8 of the Convention.", "61. Article 8 of the Convention therefore applies to the present case under both its private -life and family - life aspects.", "2. Whether the case involves a positive obligation or an interference", "62. While the essential object of Article 8 is to protect individuals against arbitrary interference by public authorities, it may also impose on a State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see, among other authorities, X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, and Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013 ).", "63. The Court has previously found that Article 8 imposes on States a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity (see, for example, Nitecki v. Poland ( dec. ), no. 65653/01, 21 March 2002; Sentges v. the Netherlands ( dec. ), no. 27677/02, 8 July 2003; Odièvre v. France [GC], no. 42326/98, § 42, ECHR 2003 ‑ III; Glass v. the United Kingdom, no. 61827/00, §§ 74 ‑ 83, ECHR 2004 ‑ II; and Pentiacova and Others v. Moldova ( dec. ), no. 14462/03, ECHR 2005 ‑ I ). In addition, this obligation may involve the adoption of specific measures, including the provision of an effective and accessible means of protecting the right to respect for private life (see Airey v. Ireland, 9 October 1979, § 33, Series A no. 32; McGinley and Egan v. the United Kingdom, 9 June 1998, § 101, Reports of Judgments and Decisions 1998 ‑ III; and Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005 ‑ X). Such measures may include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of these measures in different contexts ( see A, B and C v. Ireland [GC], no. 25579/05, § 245, ECHR 2010 ).", "64. The Court observes that it is common ground between the parties that there has been an interference with the applicant ’ s right to respect for her private life in that she was not granted a new – female – identity number. The Chamber also examined the case from that point of view. The Grand Chamber, however, is of the opinion that the question to be determined by the Court is whether respect for the applicant ’ s private and family life entails a positive obligation on the State to provide an effective and accessible procedure allowing the applicant to have her new gender legally recognised while remaining married. The Grand Chamber therefore considers it more appropriate to analyse the applicant ’ s complaint with regard to the positive aspect of Article 8 of the Convention.", "3. General principles applicable to assessing a State ’ s positive obligations", "65. The principles applicable to assessing a State ’ s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance (see Gaskin v. the United Kingdom, 7 July 1989, § 42, Series A no. 160, and Roche, cited above, § 157).", "66. The notion of “respect” is not clear cut, especially as far as positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 72, ECHR 2002 ‑ VI ). Nonetheless, certain factors have been considered relevant for the assessment of the content of those positive obligations on States. Some of them relate to the applicant. They concern the importance of the interest at stake and whether “fundamental values” or “essential aspects” of private life are in issue (see X and Y v. the Netherlands, cited above, § 27, and Gaskin, cited above, § 49), or the impact on an applicant of a discordance between the social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8 (see B. v. France, 25 March 1992, § 63, Series A no. 232 ‑ C, and Christine Goodwin, cited above, §§ 77 ‑ 78). Other factors relate to the impact of the alleged positive obligation at stake on the State concerned. The question here is whether the alleged obligation is narrow and precise or broad and indeterminate (see Botta v. Italy, 24 February 1998, § 35, Reports 1998 ‑ I), or about the extent of any burden the obligation would impose on the State (see Rees v. the United Kingdom, 17 October 1986, §§ 43-44, Series A no. 106, and Christine Goodwin, cited above, §§ 86-88).", "67. In implementing their positive obligations under Article 8, the States enjoy a certain margin of appreciation. A number of factors must be taken into account when determining the breadth of that margin. Where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will be restricted (see, for example, X and Y v. the Netherlands, cited above, §§ 24 and 27, and Christine Goodwin, cited above, § 90; see also Pretty v. the United Kingdom, no. 2346/02, § 71, ECHR 2002 ‑ III ). Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997 -II; Fretté v. France, no. 36515/97, § 41, ECHR 2002-I; and Christine Goodwin, cited above, § 85). There will also usually be a wide margin of appreciation if the State is required to strike a balance between competing private and public interests or Convention rights (see Fretté, cited above, § 42; Odièvre, cited above, §§ 44- 49; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V; and S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011 ).", "68. The Court has already examined several cases relating to the lack of legal recognition of gender reassignment surgery (see, for example, Christine Goodwin, cited above; Van Kück v. Germany, no. 35968/97, ECHR 2003 ‑ VII; Grant, cited above; and L. v. Lithuania, cited above, § 56 ). While affording a certain margin of appreciation to States in this field, it has held that States are required, in accordance with their positive obligations under Article 8, to recognise the change of gender undergone by post-operative transsexuals through, inter alia, the possibility to amend the data relating to their civil status, and the ensuing consequences (see, for example, Christine Goodwin, cited above, §§ 71-93, and Grant, cited above, §§ 39-44).", "4. Application of the general principles to the applicant ’ s case", "69. The Court notes first of all that the applicant and her spouse were lawfully married under domestic law in 1996 and that they wish to remain married. Under domestic law, marriage is only permitted between persons of opposite sex. Same-sex marriages are not, for the time being, permitted in Finland although that possibility is currently being examined by Parliament. On the other hand, the rights of same-sex couples are currently protected by the possibility of contracting a registered partnership.", "70. The Court is mindful of the fact that the applicant is not advocating same-sex marriage in general but merely wants to preserve her own marriage. However, it considers that the applicant ’ s claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other. As already stated above, no such right currently exists in Finland. Therefore, the Court must first examine whether the recognition of such a right is required in the circumstances by Article 8 of the Convention.", "71. The Court reiterates its case-law according to which Article 8 of the Convention cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage (see Schalk and Kopf v. Austria, no. 30141/04, § 101, ECHR 2010). The Court has also held that the regulation of the effects of a change of gender in the context of marriage falls to a large extent, though not entirely, within the margin of appreciation of the Contracting State ( see Christine Goodwin, cited above, § 103). Furthermore, the Convention does not require that any further special arrangements be put in place for situations such as the present one. The Court found in 2006 in the case in Parry ( cited above ) that, even if same-sex marriage was not allowed at the time in English law, the applicants could continue their relationship in all its essentials and could also give it a legal status akin, if not identical, to marriage, through a civil partnership which carried with it almost all the same legal rights and obligations. The Court thus regarded civil partnerships as an adequate option.", "72. The Court observes that the present case involves issues which are subject to constant developments in the Council of Europe member States. It will therefore examine the situation in other Council of Europe member States in respect of the issues at stake in the present case.", "73. From the information available to the Court (see paragraph 31 above), it appears that, currently, ten member States allow same-sex marriage. Moreover, in the majority of the member States not allowing same-sex marriage there is either no clear legal framework for legal gender recognition or no legal provisions specifically dealing with the status of married persons who have undergone gender reassignment. Only in six member States which do not allow same-sex marriage does relevant legislation on gender recognition exist. In those States either the legislation specifically requires that a person be single or divorced or there are general provisions stating that after a change of sex any existing marriage is declared null and void or dissolved. Exceptions allowing a married person to gain legal recognition of his or her acquired gender without having to end a pre-existing marriage seem to exist in only three member States (see paragraphs 31-33 above ).", "74. Thus, it cannot be said that there exists any European consensus on allowing same-sex marriages. Nor is there any consensus in those States which do not allow same-sex marriages as to how to deal with gender recognition in the case of a pre-existing marriage. The majority of the member States do not have any kind of legislation on gender recognition in place. In addition to Finland, such legislation appears to exist in only six other States. The exceptions afforded to married transsexuals are even fewer. Thus, there are no signs that the situation in the Council of Europe member States has changed significantly since the Court delivered its latest rulings on these issues.", "75. In the absence of a European consensus and taking into account that the case at stake undoubtedly raises sensitive moral or ethical issues, the Court considers that the margin of appreciation to be afforded to the respondent State must still be a wide one (see X, Y and Z v. the United Kingdom, cited above, § 44). This margin must in principle extend both to the State ’ s decision whether or not to enact legislation concerning legal recognition of the new gender of post-operative transsexuals and, having intervened, to the rules it lays down in order to achieve a balance between the competing public and private interests.", "76. Turning now to the domestic system, the Court finds that Finnish domestic law currently provides the applicant with several options. First of all, she can maintain the status quo of her legal situation by remaining married and tolerating the inconvenience caused by the male identity number. The Court finds it established that in the Finnish system a legally contracted marriage between a different-sex couple is not annulled or dissolved on account of the fact that one of the spouses has undergone reassignment surgery and is thus subsequently of the same sex as his or her spouse. Contrary to the situation in some other countries, in Finland a pre-existing marriage cannot be unilaterally annulled or dissolved by the domestic authorities. Accordingly, nothing prevents the applicant from continuing her marriage.", "77. Secondly, if the applicant wishes both to obtain legal recognition of her new gender and to have her relationship with her wife legally protected, Finnish legislation provides for the possibility to convert their marriage into a registered partnership, with the consent of the applicant ’ s wife. Under the domestic law, if the spouse ’ s consent to the change of gender is received, a marriage turns automatically, ex lege, into a registered partnership and a registered partnership into a marriage, depending on the situation.", "78. The third option provided by the domestic law is the option of divorce. As for any other married couple, this option is also open to the applicant if she so wishes. Contrary to the applicant ’ s assertions, the Court considers that there is nothing in the Finnish legal system which can be understood as implying that the applicant must divorce against her will. On the contrary, the Court finds that in the Finnish legal system the possibility of divorcing is at the applicant ’ s own discretion.", "79. Leaving aside the options of maintaining the status quo or divorcing, the applicant ’ s complaint is primarily directed at the second option : providing legal recognition of the new gender while at the same time legally protecting an existing relationship. Thus, the key question in the present case is whether the Finnish system currently fulfils the positive obligation on the State in this respect or whether the applicant should be allowed to remain married while at the same time obtaining legal recognition of her new gender, even if that option would imply a same-sex marriage between the applicant and her spouse.", "80. The Court notes that, contrary to the majority of the Council of Europe member States, there exists a legal framework in Finland designed to provide legal recognition for the change of gender. The Court observes that the aim of the impugned legislation, as explained by the Government, was to unify the varying practices applied in different parts of the country and to establish coherent requirements for legal gender recognition. If the consent of the spouse is received, the system provides both for legal recognition of the new gender and legal protection of the relationship. The system works both ways, thus providing not only for a marriage to be converted into a registered partnership, but also for a registered partnership to be converted into a marriage, depending on whether the gender reassignment surgery has the effect of turning the existing relationship into a same-sex or a heterosexual partnership. According to the information received from the Government, thirty-one such conversions have occurred so far concerning both the above-mentioned situations in almost equal measure.", "81. In devising this legal framework, the Finnish legislature has opted for reserving marriage to heterosexual couples, this rule being capable of no exceptions. It therefore remains for the Court to determine whether, in the circumstances of the case, the Finnish system currently strikes a fair balance between the competing interests and satisfies the proportionality test.", "82. One of the applicant ’ s concerns relates to the requirement of the spouse ’ s consent, which she sees as a “forced” divorce. However, the Court considers that as the conversion is automatic under the Finnish system, the spouse ’ s consent to the registration of a change of gender is an elementary requirement designed to protect each spouse from the effects of unilateral decisions taken by the other. The requirement of consent is thus clearly an important safeguard which protects the spouse who is not seeking gender recognition. In this context, it is worth noting that consent is also needed when a registered partnership is to be converted into a marriage. This requirement thus applies also for the benefit of the institution of marriage.", "83. Also of concern to the applicant are the differences between a marriage and a registered partnership. As the Government explained, these differences concern the establishment of paternity, adoption outside of the family and the family name. However, these exceptions are applicable only to the extent that those issues have not been settled beforehand. They are therefore not applicable to the present case. Consequently, the Court considers that the differences between a marriage and a registered partnership are not such as to involve an essential change in the applicant ’ s legal situation. The applicant would thus be able to continue enjoying in essence, and in practice, the same legal protection under a registered partnership as that afforded by marriage (see, mutatis mutandis, Schalk and Kopf, cited above, § 109).", "84. Moreover, the applicant and her wife would not lose any other rights if their marriage were converted into a registered partnership. As convincingly explained by the Government, the expression “turns into” in section 2 of the Transsexuals ( Confirmation of Gender ) Act is explicitly used to illustrate the fact that the original legal relationship continues with only a change of title and minor changes to the content of the relationship. The length of the partnership is thus calculated from the date on which it was contracted and not from the change of its title. This may be important in situations in which the length of the relationship is relevant in the domestic legislation, for example when calculating a widower ’ s pension. The Court cannot therefore uphold the applicant ’ s complaint that the conversion of a marriage into a registered partnership would be akin to a divorce.", "85. Furthermore, the Court considers that the effects of the conversion of the applicant ’ s marriage into a registered partnership would be minimal or non-existent as far as the applicant ’ s family life is concerned. The Court stresses that Article 8 also protects the family life of same-sex partners and their children (see Schalk and Kopf, cited above, §§ 91 and 94). It does not therefore matter, from the point of view of the protection afforded to family life, whether the applicant ’ s relationship with her family is based on marriage or a registered partnership.", "86. The family-life aspects are also present in the applicant ’ s relationship with her daughter. As the applicant ’ s paternity of her daughter has already been validly established during the marriage, the Court is satisfied that under current Finnish law the subsequent conversion of the marriage into a registered partnership would not have any effect on the paternity of the applicant ’ s child. She would thus continue to be considered to have been born in wedlock. Moreover, as the Government noted, in the Finnish system paternity presumed on the basis of marriage or established paternity cannot be annulled on the ground that the man later undergoes gender reassignment and becomes a woman. This is confirmed by the fact that, as the Government have observed, in none of the cases in which conversion has already taken place in Finland has the legal parent- child relationship changed. Nor does the father ’ s gender reassignment have any legal effects on the responsibility for the care, custody or maintenance of a child as in Finland that responsibility is based on parenthood, irrespective of sex or form of partnership. The Court therefore finds it established that the conversion of the applicant ’ s marriage into a registered partnership would have no implications for her family life, as protected by Article 8 of the Convention.", "87. While it is regrettable that the applicant faces daily situations in which the incorrect identity number creates inconvenience for her, the Court considers that the applicant has a genuine possibility of changing that state of affairs: her marriage can be converted at any time, ex lege, into a registered partnership with the consent of her spouse. If no such consent is obtained, the possibility of divorce, as in any marriage, is always open to her. In the Court ’ s view, it is not disproportionate to require, as a precondition to legal recognition of an acquired gender, that the applicant ’ s marriage be converted into a registered partnership as that is a genuine option which provides legal protection for same-sex couples that is almost identical to that of marriage (see Parry, cited above). The minor differences between these two legal concepts are not capable of rendering the current Finnish system deficient from the point of view of the State ’ s positive obligation.", "88. In conclusion, the Court considers that the current Finnish system as a whole has not been shown to be disproportionate in its effects on the applicant and that a fair balance has been struck between the competing interests in the present case.", "89. Accordingly, there has been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 12 OF THE CONVENTION", "90. The applicant did not initially rely on Article 12 of the Convention in her application to the Court. However, on 23 March 2010 the Chamber decided, of its own motion, to give notice of the application under Article 12 of the Convention as well.", "91. Article 12 of the Convention reads as follows:", "“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”", "A. The Chamber judgment", "92. In its judgment of 13 November 2012, the Chamber observed that the issue at stake in the present case did not as such involve any issue under Article 12 of the Convention, which guaranteed a right to marry. The applicant had been legally married since 1996. The issue at stake rather concerned the consequences of the applicant ’ s change of gender for the existing marriage between her and her spouse, which had already been examined under Article 8 of the Convention. In view of those findings, the Chamber found it unnecessary to examine the facts of the case separately under Article 12 of the Convention.", "B. The parties ’ submissions", "1. The applicant", "93. The applicant claimed that the Chamber had adopted a “pick and choose” approach to Article 12 of the Convention. An analysis under Article 12 would have been important as it required a different test from Article 8, namely whether the compulsory termination of marriage affected “the substance of the right to marry” in line with the Court ’ s case-law. It could also have corrected the failure to consider the applicant ’ s family rights under Article 8 of the Convention.", "94. The applicant claimed that Article 12 of the Convention should either be interpreted restrictively to cover only the contracting of marriage or more broadly to cover also the continued existence of a marriage. In the former case, Article 12 would not be relevant to the applicant ’ s situation as her marriage to her wife had been contracted when they were a different-sex couple. In the latter case, however, the test whether the “ forced ” divorce injured “the very substance of the right to marry” would have to be satisfied. In the applicant ’ s submission, the latter interpretation applied since the Government ’ s ability to interfere with a marriage in a manner such as in the present case would render the right to marry largely ineffective. Thus construed, Article 12 of the Convention would apply to the present case and require an examination under that Article.", "2. The Government", "95. The Government shared the Chamber ’ s view that it was unnecessary to examine the facts of the case separately under Article 12 of the Convention. The Court ’ s case-law did not protect the applicant ’ s wish to remain married to her female spouse after the confirmation of her new gender, and the matter of how to regulate the effects of the gender change fell within the margin of appreciation of the Contracting State. The Supreme Administrative Court had found in the present case that the domestic legislation did not aim to change the fact that only a man and a woman could marry but rather allowed the relationship to continue as a registered partnership that was legally protected and comparable to marriage. Transformation of the institution of marriage into a gender-neutral one required the enactment of an Act of Parliament.", "C. The Court ’ s assessment", "1. General principles", "96. The Court reiterates that Article 12 of the Convention is a lex specialis for the right to marry. It secures the fundamental right of a man and woman to marry and to found a family. Article 12 expressly provides for regulation of marriage by national law. It enshrines the traditional concept of marriage as being between a man and a woman (see Rees, cited above, § 49 ). While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (see Schalk and Kopf, cited above, § 63 ).", "2. Application of the above-mentioned principles to the present case", "97. The issue at stake concerns the consequences of the applicant ’ s change of gender for the existing marriage between her and her spouse. The Grand Chamber finds, as did the Chamber, that this question has already been examined above under Article 8 of the Convention and resulted in the finding of no violation of that Article. In these circumstances, the Court considers that no separate issue arises under Article 12 of the Convention and accordingly makes no separate finding under that Article.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 8 AND 12", "98. The applicant complained under Article 14 of the Convention that by refusing to give her a female identity number which corresponded to her actual gender, the State was discriminating against her. The fact that she had been denied a female identity number revealed the confidential information that she was a transsexual because, unlike any other person, she had to explain this difference whenever the identity number was required.", "99. Article 14 of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The Chamber judgment", "100. In its judgment of 13 November 2012, the Chamber noted that Article 14 of the Convention taken in conjunction with Article 8 was applicable.", "101. The Chamber noted that the applicant ’ s complaints under Article 14 of the Convention related to the impossibility of obtaining a female identity number. The applicant compared her situation to that of any other person, including cissexuals and unmarried transsexuals. For the Chamber, these situations were not sufficiently similar to be compared with each other. The applicant could not therefore claim to be in the same situation as the other category of persons relied on.", "102. Moreover, the Chamber noted that in essence the problem in the present case was caused by the fact that Finnish law did not allow same-sex marriages. According to the Court ’ s case-law, Articles 8 and 12 of the Convention did not impose an obligation on Contracting States to grant same-sex couples access to marriage. Nor could Article 14 of the Convention taken in conjunction with Article 8 be interpreted as imposing an obligation on Contracting States to grant same-sex couples a right to remain married. Therefore, it could not be said that the applicant had been discriminated against vis-à-vis other persons when she had been unable to obtain a female identity number, even assuming that she could be considered to be in a similar position to them. The Chamber found that there had been no violation of Article 14 of the Convention taken in conjunction with Article 8.", "B. The parties ’ submissions", "1. The applicant", "103. The applicant argued under Article 14 of the Convention that she had been discriminated against on two counts.", "104. Firstly, she had to comply with an additional requirement of terminating her marriage in order to obtain legal gender recognition. She had therefore been discriminated against vis-à-vis cissexuals, who obtained legal gender recognition automatically at birth without any additional requirement. She had been facing daily problems on account of that difference in treatment.", "105. Secondly, the applicant, her wife and their child had received less protection than persons in heterosexual marriages owing to stereotypical views associated with the applicant ’ s gender identity. Cissexuals ’ marriages did not run the risk of “ forced ” divorce in the way that the applicant ’ s marriage did. However, gender identity was now commonly recognised as a ground that attracted protection for the purposes of prohibiting discrimination.", "2. The Government", "106. The Government agreed that Article 14 of the Convention was applicable here as the case fell within the scope of Article 8, but argued that there was no separate issue under Article 14. Were the Court to have a different opinion, the Government pointed out that cissexuals were not in a similar situation to the applicant because they were not applying for a change of their gender. In any event, there had been an objective and reasonable justification. The Finnish legal system prohibited discrimination based on transsexualism.", "C. The Court ’ s assessment", "1. General principles", "107. The Court notes that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions, and to this extent it is autonomous, there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, for instance, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 ).", "108. The Court has established in its case-law that in order for an issue to arise under Article 14 there must be a difference in treatment of persons in relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008 ).", "109. On the one hand, the Court has held repeatedly that differences based on gender or sexual orientation require particularly serious reasons by way of justification (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999 ‑ VI; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 45, ECHR 2003 ‑ I; Karner v. Austria, no. 40016/98, § 37, ECHR 2003 ‑ IX; Konstantin Markin v. Russia [GC], no. 30078/06, § 127, ECHR 2012; X and Others v. Austria [GC], no. 19010/07, § 99, ECHR 2013; and Vallianatos and Others, cited above, § 77 ). On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example (see, for instance, Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006 ‑ VI). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998 ‑ II ).", "2. Application of the above-mentioned principles to the present case", "110. It is undisputed in the present case that the applicant ’ s situation falls within the notion of “private life” and “family life” within the meaning of Article 8 of the Convention as well as within the scope of Article 12. Consequently, Article 14 of the Convention taken in conjunction with Articles 8 and 12 applies.", "111. The Court notes that the applicant ’ s complaints under Article 14 of the Convention relate to her request for a female identity number and to the problems she has experienced in that respect. In her complaints, the applicant compared her situation to that of cissexuals, who obtained legal gender recognition automatically at birth and whose marriages, according to the applicant, did not run the risk of “ forced ” divorce in the way that hers did.", "112. The Grand Chamber agrees with the Chamber that the applicant ’ s situation and the situation of cissexuals are not sufficiently similar to be compared with each other. The applicant cannot therefore claim to be in the same situation as cissexuals.", "113. In conclusion, the Court finds that there has been no violation of Article 14 of the Convention taken in conjunction with Articles 8 and 12." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1981.", "6. The applicant is a transgender person whose gender is recorded in the civil - status register as female. He stated that he had become aware, even as a child, of feeling that he was male, a feeling that was at variance with his anatomical sex.", "A. Initial court action seeking gender reassignment", "7. On 30 September 2005 the applicant applied to the Mersin District Court (“the District Court”) under Article 40 of the Civil Code seeking authorisation to undergo gender reassignment surgery. In the application instituting the proceedings the applicant ’ s lawyer gave the following reasons for his client ’ s request. His client had, since he was a child, regarded himself as male rather than female and for that reason had been receiving psychological counselling since childhood; at the age of nineteen or twenty he had contemplated suicide; his current biological identity was at odds with the gender to which he felt he belonged; and gender reassignment was necessary in order for him to achieve harmony between his private perception of himself and his physical make-up. The lawyer stated that several doctors whom his client had consulted since childhood had recommended gender reassignment. The applicant, who was twenty-four years old, was living as a man, had been in a relationship with a woman for four years and was accepted as a man by his family and friends. The lawyer added that his client had been receiving treatment for the past year in the psychiatric department of İnönü University Hospital with a view to undergoing the gender reassignment surgery that he sought. Lastly, the lawyer requested that the proceedings remain confidential in view of his client ’ s psychological state.", "8. On 16 December 2005 the District Court granted the request concerning the confidentiality of the proceedings.", "9. On 6 February 2006 the court heard evidence from the applicant ’ s family. The applicant ’ s mother stated that as a child her daughter had played mainly with boys and as an adolescent had told her mother that she felt more like a boy and wanted to be one. The applicant ’ s mother had therefore consulted psychologists, who had expressed the view that her daughter would be happier if she could live as a man, a view which the applicant ’ s mother shared. The applicant ’ s older brother also said that his sister had played with boys when she was a child, had started to behave like a boy during adolescence and had had girlfriends, and that she had been determined to undergo gender reassignment by means of surgery. She had made several suicide attempts and was still in therapy. As far as the applicant ’ s brother was aware, the doctors had decided to go ahead with the operation.", "On conclusion of the hearing the District Court sent a request for information to the medical director of the hospital where the applicant was being treated, seeking to ascertain whether the applicant was transgender, whether gender reassignment was necessary to ensure his mental health and whether he was permanently unable to procreate.", "10. On 23 February 2006 a medical committee of İnönü University Medical Centre drew up a psychiatric report which found that the applicant was transgender. The report further found that, from a psychological viewpoint, the applicant should henceforth live with a male identity.", "11. On 28 February 2006 a medical committee of the gynaecology and obstetrics unit of the same medical centre drew up a report which found that Y.Y. had a female phenotype and was transgender.", "12. On 7 April 2006 the District Court examined the two medical reports from İnönü University ’ s medical faculty. The court observed that the authors of the report of 23 February 2006 had diagnosed the applicant as transgender and had found that, from a psychological viewpoint, he should live henceforth with a male identity, but that the authors of the report of 28 February 2006 had found Y.Y. ’ s phenotype to be female. However, the court considered that these reports had not answered the questions it had asked, namely whether gender reassignment was necessary in order to ensure the claimant ’ s mental health and whether the claimant was permanently unable to procreate. The court therefore reiterated its request for information.", "13. On 2 0 April 2006 the head of the gynaecology and obstetrics unit attached to the surgical department of İnönü University ’ s medical faculty wrote to the head doctor of the medical centre informing him that the applicant had been examined following a request for a consultation with a plastic surgeon with a view to gender reassignment. She said that an examination had established that Y.Y. had female external and internal genitalia and was not permanently unable to procreate.", "14. On 21 April 2006 a medical committee of the psychiatric department of İnönü University ’ s medical faculty wrote to the head doctor of the medical centre informing him that the applicant had been examined on 20 April 2006. Following that examination the medical team had concluded that, in the interests of his mental health, the applicant should be allowed to live henceforth with a male identity.", "15. At the District Court hearing of 5 May 2006 the applicant ’ s lawyer challenged the report of 20 April 2006 on the grounds that it had not been adopted by a collegiate body. The District Court accordingly requested a fresh expert report on the applicant ’ s ability to procreate. The task of preparing the report was entrusted to a medical committee of Çukurova University ’ s faculty of medicine.", "16. On 11 May 2006 two doctors from the gynaecology and obstetrics department of Çukurova University ’ s faculty of medicine carried out an expert assessment and concluded, after examining the applicant, that he was capable of procreating.", "17. On 27 June 2006 the District Court, basing its decision on the findings of the various expert reports, refused the applicant authorisation to undergo gender reassignment, on the ground that he was not permanently unable to procreate and therefore did not satisfy one of the conditions of eligibility for gender reassignment under Article 40 of the Civil Code.", "18. On 18 July 2006 the applicant appealed on points of law against that judgment. In his pleadings the applicant ’ s lawyer stressed that his client had considered himself since childhood as male rather than female and that this belief was not a mere whim. The applicant had undergone a lengthy course of psychotherapy following which the doctors had concluded that he was transgender and that, from a psychological perspective, it was advisable for him to live as a man. The lawyer further submitted that his client ’ s ability to procreate did not in any way prevent him from perceiving himself as a man; it was a biological fact over which he had no control. In Turkey as elsewhere in the world, persons who, like the applicant, were unable to reconcile their biological and psychological state were not necessarily single and unable to procreate. There were numerous examples of people who had a predisposition towards transgenderism and who had married and had children before having gender reassignment surgery. It was unfair to make authorisation for a change of biological gender contingent on the ability of the transgender individuals concerned to procreate, whether they considered themselves as men or as women. Accordingly, in refusing to allow the applicant to undergo gender reassignment surgery under Article 40 of the Civil Code – which, in the lawyer ’ s submission, did not reflect social reality – the courts had restricted his client ’ s rights and freedoms. The lawyer further alleged that the refusal of the applicant ’ s request on account of his ability to procreate had been unlawful. In his view, the expression “permanently unable to procreate ” should be deleted from the provision in question.", "19. On 17 May 2007 the Court of Cassation upheld the District Court judgment, taking the view that the first-instance court had not erred in its assessment of the evidence.", "20. On 18 June 2007 the applicant ’ s lawyer lodged an application for rectification of that decision. In his pleadings he submitted that none of the grounds of appeal advanced by the applicant had been taken into account, and that no comment had been made on the official documents and reports included in the file. The lawyer also contested the use of the report of 11 May 2006 prepared by the gynaecology and obstetrics department of Çukurova University ’ s medical faculty as the basis for rejecting the applicant ’ s claims. He argued in that regard that the report in question did not have the status of an expert report and had been drawn up following a purely superficial examination of his client ’ s genital organs that was insufficient to establish his ability to procreate. Even assuming that the various medical reports had sufficed to establish that his client was capable of procreating, the only gender with which his client could identify from a physical and psychological perspective was male. Moreover, that fact had been established on 2 March 2005 in the report of the medical committee of İnönü University, where his client had also been following a long-term course of psychotherapy. The lawyer criticised the failure to take the latter fact into account. Lastly, he submitted that the courts had infringed the applicant ’ s rights by refusing his request for authorisation to undergo surgery aimed at assigning to him the gender with which he naturally identified.", "21. On 18 October 2007 the Court of Cassation rejected the application for rectification lodged by the applicant, observing that none of the grounds for setting aside enumerated in Article 440 of the Code of Civil Procedure applied in the case at hand.", "B. Proceedings in the domestic courts following notification of the application to the Government", "22. On 5 March 2013 the applicant lodged a fresh application with the Mersin District Court on the basis of Article 40 of the Civil Code, seeking authorisation to undergo gender reassignment surgery. In his application instituting the proceedings, the applicant ’ s lawyer gave the following reasons for the request. His client had regarded himself from a young age as male rather than female and for that reason had received psychological counselling since childhood; medical reports had established that, from a psychological viewpoint, it was advisable for him to live henceforth with a male identity; the applicant ’ s biological identity was at odds with the gender to which he felt he belonged; gender reassignment was necessary to ensure his psychological and mental well-being; on 27 March 2012 he had undergone a double mastectomy and was taking various hormones to increase his testosterone levels; he was working for his brother as a painter and decorator; he went regularly to the gym and had the physical appearance of a man; he was now thirty-two years old and had always regarded himself as a man; the friends he had met after a certain age knew him only as a man; and he did not use the first name indicated on his identity papers. The lawyer added that, in order to bring his physical appearance into line with his perception of himself, his client had resorted to all kinds of methods with damaging side-effects. In his daily life, and especially when he had to produce his identity papers for the authorities, the applicant was subjected to denigrating and humiliating treatment and encountered numerous difficulties because of the discrepancy between his outward appearance and the identity indicated on his papers. The lawyer summed up by requesting the court to allow his client to begin the requisite formalities in order to change his identity in the civil - status register, to grant his client ’ s request to undergo gender reassignment, to authorise him to undergo gender reassignment surgery and to declare the District Court proceedings confidential.", "23. On 11 April 2013, following a full medical history and examination of the applicant, a committee made up of psychiatrists from İnönü University Medical Centre issued a medical report which found that the applicant was transgender and that gender reassignment was necessary in order to ensure his mental health. The report also stated that an expert assessment should be carried out to establish whether the applicant was permanently unable to procreate.", "24. On 6 May 2013 a forensic medical report was drawn up by a committee from the forensic medicine department of İnönü University Medical Centre. According to the report, during the examination carried out on 11 April 2013 in the forensic medical department, the applicant had stated that he wished to undergo gender reassignment surgery and had already taken steps to that end in the past but had had his claims rejected by the courts. He had then applied to the European Court of Human Rights and had since brought a fresh action. The medical examination had shown that the applicant had a male phenotype (all his external characteristics). He had a beard and a moustache, his breast tissue had been surgically removed and he was receiving treatment following that operation. He had male hair growth on his arms and legs, was undergoing hormone treatment and was embarrassed by the colour of his identity card [1] and had therefore covered it before putting it in his wallet. Lastly, the applicant had stated that reassignment was a necessity for him.", "According to the report, blood tests had revealed that the applicant had a total testosterone count of more than 16,000 ng/dl, presumably linked to the hormone treatment he was taking. However, this did not mean that he was permanently unable to procreate.", "The report concluded as follows:", "“ 1. [The applicant] is transgender;", "2. gender reassignment is necessary for his mental health;", "3. [he] is not permanently unable to procreate (as a woman) ... ”", "25. On 21 May 2013 the Mersin District Court granted the applicant ’ s request and authorised the gender reassignment surgery which he sought. In its reasoning, the District Court found it established that the applicant was transgender, that gender reassignment was needed to ensure his mental health, and that it was clear from the evidence of the witnesses called by the applicant that he lived as a man in every respect and suffered as a result of his situation. Accordingly, in view of the evidence and of the reports produced, the conditions set forth in Article 40 § 2 of the Civil Code were satisfied and the request should be granted. The judgment specified that it was final.", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "44. The applicant alleged a violation of his right to respect for his private life. He maintained that the discrepancy between his perception of himself as a man and his physiological make-up had been established by medical reports. In his application form he added that his request to be allowed to put an end to that discrepancy had been refused by the domestic authorities, who had based their decision on the finding that he was able to procreate. He requested authorisation to undergo gender reassignment surgery. The applicant criticised the content of Article 40 of the Civil Code and the manner in which it had been interpreted. These did not address the concerns which the provision in question was supposed to resolve, since the biological criterion laid down could only be satisfied by means of surgery. In the applicant ’ s view, the impossibility of obtaining access to such surgery meant that the persons concerned were permanently deprived of any opportunity to resolve the discrepancy between their perception of their gender identity and the biological reality.", "The applicant relied on Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "45. The Government contested the applicant ’ s allegations.", "A. Admissibility", "46. In additional observations dated 30 August 2013 the Government submitted that, according to their reading of the Court ’ s well-established case-law, the applicant had to be able to demonstrate his victim status at all stages of the proceedings. In support of their argument they cited the case of Burdov v. Russia (no. 59498/00, § 30, ECHR 2002 ‑ III). In the present case the District Court had ultimately ruled in favour of the applicant, authorising him to undergo gender reassignment. Accordingly, the applicant no longer had victim status for the purposes of Article 34 of the Convention.", "47. The applicant contested the Government ’ s arguments. Referring to the Court ’ s judgments in Chevrol v. France (no. 49636/99, § 43, ECHR 2003 ‑ III); Guerrera and Fusco v. Italy (no. 40601/98, §§ 51-53, 3 April 2003); and Timofeyev v. Russia (no. 58263/00, § 36, 23 October 2003), he submitted that a favourable decision or measure was not in principle sufficient to deprive applicants of their victim status unless the national authorities had acknowledged, either expressly or in substance, and then afforded full redress for, the violation alleged. The dismissal of his initial request had forced him – like all persons who wished to undergo gender reassignment – to use hormones without any judicial or medical supervision. He was thus indeed a victim, and the domestic authorities had never acknowledged this state of affairs. Furthermore, he had brought a fresh action on his own initiative, while the domestic authorities had taken no active steps to allow him to undergo gender reassignment.", "48. The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention. The question whether or not the applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see Burdov, cited above, § 30). In answering this question, account should be taken not only of the formal position at the time when the application was lodged with the Court but of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (see Tănase v. Moldova [GC], no. 7/08, § 105, ECHR 2010).", "49. The Court further reiterates that, in view of these considerations, the question whether an applicant has victim status falls to be determined at the time of the Court ’ s examination of the case where such an approach is justified in the circumstances (ibid., § 106). Furthermore, a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, for example, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-80, ECHR 2006 ‑ V; and Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010).", "50. Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application (see Eckle, cited above, §§ 69 et seq.).", "51. As to the redress which is “ appropriate ” and “ sufficient ” in order to remedy a breach of a Convention right at domestic level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard in particular to the nature of the Convention violation at stake (see, for instance, Gäfgen, cited above, § 116).", "52. In the present case the Court observes that the applicant lodged an initial request with the domestic courts in 2005 seeking authorisation to undergo gender reassignment surgery, and that his request was refused following court proceedings which concluded in 2007 (see paragraphs 7 to 21 above). After the present application had been notified to the Government, he followed a course of hormone therapy and underwent a double mastectomy before lodging a second request for gender reassignment with the Mersin District Court in March 2013 (see paragraph 22 above). On 21 May 2013, following a new set of judicial proceedings in which he underwent further medical examinations, his request was finally granted (see paragraph 25 above).", "53. It is true, as stressed by the Government, that the domestic courts, after the Government had been given notice of the application, adopted a decision favourable to the applicant by authorising him to undergo the requested gender reassignment. However, the Court cannot overlook the fact that the situation giving rise to the present application, namely the applicant ’ s inability to obtain access to gender reassignment surgery owing to the courts ’ refusal, lasted for more than five years and seven months. In the Court ’ s view, there can be no doubt that the applicant ’ s private life was directly affected by the courts ’ refusal during this period (see paragraphs 22 and 24 above). Furthermore, it is apparent to the Court from the reasoning of the District Court ’ s judgment in the applicant ’ s favour that the judgment did not contain any express acknowledgement of a violation of the applicant ’ s Convention rights. Likewise, the authorisation granted to the applicant cannot be interpreted as acknowledging in substance a violation of his right to respect for his private life.", "54. Accordingly, the Government ’ s objection that the applicant no longer has victim status must be rejected.", "55. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. The Court therefore declares it admissible.", "B. Merits", "1. General principles", "56. The Court has previously stressed on numerous occasions that the concept of “private life” is a broad term not susceptible to exhaustive definition. It includes not only a person ’ s physical and psychological integrity (see X and Y v. the Netherlands, 26 March 1985, § 22, Series A no. 91), but can sometimes also embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002 ‑ I). Elements such as gender identification, names, sexual orientation and sexual life fall within the personal sphere protected by Article 8 of the Convention (see Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45; B. v. France, 25 March 1992, § 63, Series A no. 232 ‑ C; Burghartz v. Switzerland, 22 February 1994, § 24, Series A no. 280 ‑ B; Laskey, Jaggard and Brown v. the United Kingdom, 19 February 1997, § 36, Reports of Judgments and Decisions 1997 ‑ I; and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999 ‑ VI).", "57. Article 8 also protects the right to personal development and the right to establish and develop relationships with other human beings and the outside world (see Schlumpf v. Switzerland, no. 29002/06, § 77, 8 January 2009). In that connection the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of the Article 8 guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III).", "58. The Court has also held on many occasions that, as the very essence of the Convention is respect for human dignity and human freedom, the right of transgender persons to personal development and to physical and moral security is guaranteed (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI; Van Kück v. Germany, no. 35968/97, § 69, ECHR 2003 ‑ VII; and Schlumpf, cited above, § 101). The Court has also recognised that serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin, cited above, § 77).", "59. The Court further observes that, while the boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition, the applicable principles are nonetheless similar. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; in both contexts the State enjoys a certain margin of appreciation (see, for instance, B. v. France, cited above, § 44, and Hämäläinen v. Finland [GC], no. 37359/09, § 67, ECHR 2014).", "60. When it comes to balancing the competing interests, the Court has emphasised the particular importance of matters relating to one of the most intimate parts of an individual ’ s life, namely the determination of an individual ’ s gender (see Schlumpf, cited above, § 104). It has previously examined, in the light of present-day conditions, several cases involving the problems faced by transgender persons and has endorsed the evolving improvement of State measures to ensure their recognition and protection under Article 8 of the Convention (see L. v. Lithuania, no. 27527/03, § 56, ECHR 2007 ‑ IV).", "2. Application of these principles in the present case", "(a) Preliminary remarks", "61. The Court stresses at the outset that in the above-mentioned cases the complaints were submitted by post-operative transgender persons or those who had undergone certain surgical procedures with a view to gender reassignment. In the present case, however, at the time the application was lodged the applicant had not undergone surgery, as he had been refused authorisation by the courts to undergo gender reassignment surgery on the grounds that he was not permanently unable to procreate.", "62. Hence, the present case concerns an aspect of the problems potentially facing transgender persons that differs from the aspects hitherto examined by the Court, namely the issue of the prior conditions that may be imposed on transgender persons in advance of the process of gender change and the compatibility of those conditions with Article 8 of the Convention. The criteria and principles developed in the case-law cited above were thus established in a very different context and cannot therefore be transposed unaltered to the present case. However, they may serve as a guide to the Court in assessing the circumstances of the case.", "(b) The approach to be taken in examining the complaint", "(i) The parties ’ submissions", "63. The applicant claimed to have been the victim of interference with the exercise of his right to respect for his private life.", "64. The Government contested that claim and submitted that the refusal to authorise gender reassignment surgery on the ground that the statutory conditions were not satisfied could not be said to constitute interference with the exercise of the right to respect for private life within the meaning of Article 8 of the Convention. In addressing the issue whether the right of transgender persons to effective respect for their private life gave rise to a positive obligation for the State, regard had to be had to the “fair balance which [had] to be struck between the general interest and the interests of the individual .” In its judgments in Rees v. the United Kingdom (17 October 1986, Series A no. 106), and Cossey v. the United Kingdom (27 September 1990, Series A no. 184), the Court had taken into account, among other considerations, the fact that “[t]he requirement of striking a fair balance could not give rise to any direct obligation on the respondent State to alter the very basis of its system ”, in order to conclude that no such obligation existed for the respondent State.", "(ii) The Court ’ s assessment", "65. The Court observes that the applicant ’ s chief complaint concerned the refusal by the domestic courts of his request for access to gender reassignment surgery. Citing the judgments in Pretty ( cited above, § 66 ), and K.A. and A.D. v. Belgium ( nos. 42758/98 and 45558/99, § 83, 17 February 2005), he submitted that the principle of personal autonomy could be understood to encompass the right to make choices about one ’ s own body. In that connection the Court observes that, while Article 8 of the Convention cannot be interpreted as guaranteeing an unconditional right to gender reassignment surgery, it has previously held that transgenderism is recognised internationally as a medical condition which warrants treatment to assist the persons concerned (see Christine Goodwin, cited above, § 81). The health services of most of the Contracting States recognise this condition and provide or permit treatment, including irreversible gender reassignment surgery (see paragraphs 35-43 above).", "66. The Court considers that the initial refusal of the applicant ’ s request undeniably had repercussions on his right to gender identity and to personal development, a fundamental aspect of the right to respect for private life. That refusal therefore amounted to interference with the applicant ’ s right to respect for his private life within the meaning of Article 8 § 1 of the Convention.", "(c) Whether the interference was justified", "67. In order to determine whether the interference found amounted to a violation of Article 8, the Court must ascertain whether it was justified from the standpoint of the second paragraph of that Article, in other words whether it was “in accordance with the law” and “necessary in a democratic society” in order to achieve one of the “legitimate aims” enumerated in that paragraph.", "(i) The legal basis for the interference", "68. According to the Court ’ s settled case-law, the expression “in accordance with the law ” not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000 ‑ II; Slivenko v. Latvia [GC], no. 48321/99, § 100, ECHR 2003 ‑ X; and Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts)).", "69. In the present case the Court notes first of all that the issue of the existence of a legal basis is not disputed between the parties. The applicant himself stated that the interference in question had been based on Article 40 of the Civil Code. The Government, for their part, asserted that the requirements of that provision were clear and that in the present case the Mersin District Court had not examined previous court rulings regarding the statutory conditions. Basing its findings on the various expert assessments, it had simply refused the applicant ’ s request on the ground that the statutory criteria for gender reassignment had not been fully met since the applicant was not incapable of procreating.", "70. The Court notes that the District Court ruling of 27 June 2006 refusing the applicant authorisation to undergo gender reassignment as he had requested was based on Article 40 of the Civil Code. It is apparent from that provision that, under Turkish law, transgender persons who satisfy certain statutory criteria have the right not only to undergo gender reassignment but also to obtain legal recognition of their new gender by amending their civil status ... However, under Article 40 of the Civil Code, this possibility is subject to a number of conditions, including the inability of the person to procreate. It was on the basis of this condition that the applicant ’ s request was initially refused.", "71. Accordingly, the Court considers that the interference complained of had a legal basis in domestic law. However, in view of its finding regarding the necessity of that interference (see paragraphs 121-22 below ), the Court does not deem it necessary to determine whether or not the effects of the provision in question were foreseeable.", "(ii) Whether the interference pursued a legitimate aim", "( α ) The parties ’ submissions", "72. The applicant submitted that there had been no public - interest grounds for refusing his request to undergo surgical or medical procedures with a view to gender reassignment. The general arguments advanced by the Government to demonstrate that the interference in question fulfilled a public-order interest ( such as the need to prevent procedures of this kind from becoming commonplace, the irreversible nature of these procedures and possible misuse by the sex industry, see paragraphs 74 to 75 below) could not be regarded as logical from a scientific, social or legal viewpoint.", "7 3. In the Government ’ s view, it was clear from the Court ’ s case-law that States had the right to control activities that were damaging to the life and safety of others (they referred to Pretty, cited above, and to Laskey, Jaggard and Brown, cited above). They concluded from the Pretty judgment that the more serious the damage incurred the greater the weight that should be attached to public health and safety considerations when assessed in relation to the competing principle of personal autonomy.", "74. In that regard the Government argued that the regulation of gender reassignment surgery came not only within the sphere of protection of the public interest in so far as it sought to prevent surgery of this kind from becoming commonplace and to prevent needless operations, but also within the sphere of protection of the interests of individuals who wished to undergo such surgery, given that it was irreversible and posed a risk to the physical and mental well-being of the persons concerned. While transgender persons who underwent surgery lost some of the characteristics of their gender of origin, they did not acquire all the characteristics of their new gender. Furthermore, it rendered them permanently unable to procreate. Account also had to be taken of the risk that individuals who had undergone gender reassignment surgery, the effects of which were irreversible, might have regrets later.", "75. Lastly, the Government wished to prevent gender reassignment surgery from becoming commonplace. They argued that this would be dangerous in view of the irreversible nature of the surgery and the risk that certain sections of society (the sex industry for example) might make improper use of the medical possibilities it offered.", "( β ) The Court ’ s assessment", "76. The Court reiterates that the enumeration of the reasons capable of justifying interference with the right to respect for private life, as listed in Article 8 § 2, is exhaustive and that their definition is restrictive (see S.A.S. v. France [GC], no. 43835/11, § 113, ECHR 2014 (extracts)). For it to be compatible with the Convention, an instance of interference with an applicant ’ s right to respect for his or her private life must therefore pursue an aim that can be linked to one of those listed in this provision. The Court ’ s practice is to be quite succinct when it verifies the existence of a legitimate aim within the meaning of the second paragraphs of Articles 8 to 11 of the Convention (ibid.).", "77. Nevertheless, in the present case, given that the applicant contested the relevance of the aims relied on by the Government (see paragraph 72 above), the Court considers that it should set out its position in greater detail. It takes note of the Government ’ s argument that the regulation of gender reassignment surgery falls within the sphere of protection of the general interest and is aimed in particular at preventing such surgery from becoming commonplace and preventing its improper use by certain sections of society, especially the sex industry. The Government further referred to the aim of protecting the interests of the individuals concerned, in view of the risks of these procedures for their physical and mental well-being.", "78. In view of the manner in which they were framed, the Court is not persuaded by the Government ’ s arguments concerning the risk of gender reassignment surgery becoming commonplace or being misused by certain sections of society. In particular, it is not convinced that the aims relied on in that regard fall within the category of the legitimate aims set forth in Article 8 § 2.", "79. However, the Court notes that the Government also stressed the irreversible nature of gender reassignment surgery and the health risks posed by this type of operation. In that connection it has no reason to doubt that, in enacting the legislation in question, the respondent Government sought to achieve a legitimate aim within the meaning of the second paragraph of Article 8, and it accepts that this type of surgery may be made subject to State regulation and supervision on health-protection grounds.", "80. That being said, the Court notes that the Government ’ s observations did not specifically address the infertility/sterility requirement referred to in the legislation and on the basis of which the applicant ’ s request was initially rejected. However, in view of its findings regarding the necessity of the interference at issue (see paragraphs 121-22 below ), it considers it unnecessary to deal with this issue in greater depth.", "(iii) Whether the interference was necessary", "( α ) The applicant ’ s submissions", "81. The applicant pointed out that very few people applied to the courts under Article 40 of the Civil Code seeking permission to live in a physically and psychologically congruent manner. However, numerous individuals underwent illegal operations or had treatment abroad because they did not satisfy the statutory criteria.", "82. Treatments aimed at ending a person ’ s reproductive capacity (sterilisation or hormone treatment) were regarded as commonplace for men and women who were not transgender and simply did not wish to have children. The applicant complained of the fact that, as a transgender person, he was deprived of this possibility.", "83. The applicant further submitted that Article 40 of the Civil Code should not be interpreted as precluding hormone treatment or medical sterilisation procedures for persons seeking gender reassignment. Although these types of treatment existed in Turkey they had not been available to him. Since non-transgender men and women who did not wish to have children had access to this type of routine, irreversible treatment, he too, as a transgender person, should have had access to it. In his view, he should not have to live in a situation where his physical appearance was at variance with the gender to which he felt he belonged. In the light of the scientific and social data ( contained in the medical reports included in the file ), the law should offer him a solution.", "84. Referring to the position adopted by the Court in the case of Tavlı v. Turkey ( no. 11449/02, §§ 35-37, 9 November 2006), the applicant submitted that the current legislation should be interpreted in the light of scientific, biological and social reality.", "85. Arguing that many transgender people were not permanently unable to procreate, the applicant submitted that Article 40 of the Civil Code did not meet “any need” as it did not contain any provision based on actual necessity. For instance, it made no reference to a “trial period” or to “hormone treatment” or any other type of treatment, but simply referred to gender reassignment “ operations ” without mentioning any other medical procedure. There was therefore a real legal vacuum in that regard. The information on medical procedures published by the social security scheme did not address this issue either.", "86. The applicant also cited an article written by two academics specialising in civil law concerning a ruling by the civil courts [2] refusing a request for authorisation to undergo gender reassignment on the ground that the person concerned had reproductive organs. The authors had observed that the issue of the constitutionality of such a refusal had not been examined and that the courts had likewise not considered how the situation should be examined from the perspective of the European Convention on Human Rights.", "87. In sum, the applicant submitted that the gender reassignment procedure did not apply in practice to transgender persons who were able to procreate – in other words, the majority of transgender persons – owing to the fact that Article 40 of the Civil Code did not indicate the treatment methods to be used and to the lack of any other legislative provisions on the subject. This situation forced transgender people to act outside the law and to resort to medical treatment or surgery that was not systematically supervised by the courts or the medical profession.", "( β ) The Government ’ s submissions", "88. Referring to the cases of Christine Goodwin and Van Kück ( both cited above) and to Grant v. the United Kingdom ( no. 32570/03, ECHR 2006 ‑ VII ), the Government stressed that the Court had already examined, in the light of present-day living conditions, several cases relating to the problems encountered by transgender persons. The Court had welcomed the constantly improved measures taken by States under Article 8 of the Convention to protect these persons and recognise their situation. While allowing States a measure of discretion in the matter, the Court had held that they were required, in accordance with their positive obligations under Article 8, to recognise the new gender identity of post-operative transgender persons, in particular by amending their civil status, with the consequences that this entailed (the Government referred in this connection to the judgments in Christine Goodwin ( cited above, §§ 71 - 93 ), and Grant ( cited above, §§ 39-44).", "89. In the Government ’ s submission, the Turkish legal system complied with this requirement, as post-operative transgender persons had their civil status amended in the register and subsequently led their lives in conformity with their new official identity.", "90. In the above-mentioned cases, however, the Court had examined complaints submitted by transgender persons who had already undergone gender reassignment surgery, whereas the present case concerned the refusal of the domestic courts to authorise the applicant to undergo such surgery. Since 1988, Turkish law had made provision for gender reassignment and granted full legal recognition to the new gender identity of post-operative transgender persons.", "91. As to the conditions to be satisfied in order to undergo gender reassignment, the Government referred to Article 40 of the Civil Code. The domestic legislation and the detailed arrangements for its implementation did not mean that the persons concerned had to undergo prior medical sterilisation or hormone therapy in order to be eligible for gender reassignment surgery. In the present case the applicant ’ s request had been examined by the Mersin District Court in the light of the statutory requirements.", "92. While they acknowledged that the notion of personal autonomy reflected an important principle underlying the interpretation of the Article 8 guarantees, the Government maintained that the Court had never held that Article 8 encompassed a right to self-determination as such (they referred to the judgments in Schlumpf, Van Kück and Pretty, all cited above). It was not possible to infer from Article 8 of the Convention or from the Court ’ s case ‑ law on the subject the existence of an unconditional right to gender reassignment by means of surgery. In the Government ’ s view, such a right would negate the protection that the Convention was designed to afford.", "93. In view of the seriousness and the irreversible nature of gender reassignment surgery, the uncertainty that remained as to the necessity of such operations in treating gender identity disorders, and the risk of such operations becoming commonplace, with the associated dangers, the State should be allowed a wide margin of appreciation in regulating gender reassignment and determining the criteria which individuals must meet before undergoing gender reassignment surgery.", "94. In order to determine whether the statutory requirements for gender reassignment were fully satisfied, the Mersin District Court had sought to verify that all the prior conditions for the authorisation of gender reassignment had been met, and in particular the condition of being permanently unable to procreate. It had based its conclusions on specialist knowledge and findings.", "95. Furthermore, in view of the uncertainty that remained concerning the essential nature of transgenderism and the extremely complex situations arising out of it, the Government submitted that the legislation in question provided for appropriate legal measures in this sphere. Relying on B. v. France ( cited above ), they argued that the Court itself had noted that some uncertainty still remained as to the essential nature of transgenderism and that the legitimacy of surgical intervention in such cases was sometimes questioned.", "96. In the Government ’ s view, it was not possible to argue that such surgery was vital for the treatment of gender identity disorders. Obtaining a clear diagnosis of transgenderism was of the utmost importance and such a diagnosis had to be made very carefully in order to avoid any confusion with other similar psychological disorders. A finding that gender reassignment surgery was necessary should be made for reasons of medical as well as psychological necessity.", "97. Furthermore, the legal situations arising out of transgenderism were very complicated. They concerned, in particular, issues of an anatomical, biological, psychological and mental nature linked to transgenderism and its definition; issues of consent and the other conditions to be satisfied prior to any operation; the circumstances in which a change of gender identity could be authorised; the international aspects; the legal effects, whether retroactive or not, of such change; the possibility of choosing another first name; the confidentiality of the documents and information relating to the change; and the impact on the family. There was not yet a sufficiently broad consensus among the Council of Europe member States on these different points for the Court to make decisive findings restricting the Contracting States ’ margin of appreciation. Hence, this was a sphere in which the Contracting States, owing to the lack of common ground on the subject, continued to enjoy a wide margin of appreciation.", "98. Arguing that gender reassignment surgery entailed very considerable risks, the Government submitted that the conditions laid down by domestic law were not open to criticism from either a legal or a medical point of view. They feared that the opposite approach might lead to operations being performed without any prior checks as to their medical necessity and without any guarantees of a successful medical outcome.", "99. In view of all these considerations, the domestic courts ’ refusal to authorise the applicant to undergo gender reassignment surgery could not be said to constitute an infringement of his right to respect for his private life within the meaning of Article 8 of the Convention. The domestic authorities had not overstepped the margin of appreciation that had to be left to them in cases such as the present one. Accordingly, there had been no violation of Article 8.", "(γ) The Court ’ s assessment", "100. According to the Court ’ s settled case-law, an instance of interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need”, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among other authorities, Nada v. Switzerland [GC], no. 10593/08, § 181, ECHR 2012, and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 105, ECHR 2013 (extracts)).", "101. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention. A margin of appreciation must be left to the competent national authorities in this assessment. The breadth of this margin varies and depends on a number of factors including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of “intimate” or key rights. Accordingly, where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State will be restricted. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 101-02, ECHR 2008, and Fernández Martínez, cited above, § 125).", "102. In the present case the Court observes that the proceedings before the domestic courts directly concerned the applicant ’ s freedom to define his gender identity, one of the most basic essentials of self-determination (see Van Kück, cited above, § 73). In that regard it points out that it has repeatedly signalled its consciousness of the serious problems facing transgender persons and has stressed the importance of keeping the need for appropriate legal measures under review (see Christine Goodwin, cited above, § 74).", "103. The Court reiterates that is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Convention institutions to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement (see, among other authorities, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002 ‑ IV).", "104. In the context of the present case, the Court therefore considers it appropriate to take account of the development of international and European law, and of law and practice in the various Council of Europe member States, in order to assess the circumstances of the present case “in the light of present-day conditions” (for a similar approach, see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26 ).", "105. In that regard the Court observes that the possibility for transgender persons to undergo gender reassignment treatment exists in many European countries, as does legal recognition of their new gender identity. It further notes that the regulations or practice applicable in a number of countries that recognise gender reassignment make legal recognition of the new preferred gender contingent, either implicitly or explicitly, on gender reassignment surgery and/or on the inability to procreate ...", "106. In its judgment in Christine Goodwin (cited above, § 85) the Court held that, in accordance with the principle of subsidiarity, it was primarily for the Contracting States to decide on the measures necessary to secure Convention rights to everyone within their jurisdiction and that, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States had to be granted a wide margin of appreciation.", "107. In the Court ’ s view, the same is undoubtedly true in relation to the legal requirements governing access to medical or surgical procedures for transgender persons wishing to undergo the physical changes associated with gender reassignment.", "108. However, the Court has previously held that it attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed than to the existence of clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transgender persons but of legal recognition of the new gender identity of post-operative transgender persons (see Christine Goodwin, cited above, § 85).", "109. It further reiterates that the right of transgender persons to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved (see Christine Goodwin, cited above, § 90).", "110. In that connection it emphasises that, in the Appendix to Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers of the Council of Europe stated that prior requirements, including changes of a physical nature, for legal recognition of a gender reassignment, should be regularly reviewed in order to remove abusive requirements ... Furthermore, in Resolution 1728 (2010) on discrimination on the basis of sexual orientation and gender identity, the Parliamentary Assembly of the Council of Europe called on the member States to address the specific discrimination and human rights violations faced by transgender persons and, in particular, to ensure in legislation and in practice their right to official documents that reflected the individual ’ s preferred gender identity, without any prior obligation to undergo sterilisation or other medical procedures such as gender reassignment surgery or hormone therapy ...", "111. The Court also observes that some member States have recently amended their legislation or practice regarding access to gender reassignment treatment and the legal recognition of gender reassignment by abolishing the infertility/sterility requirement ...", "112. In that connection the Court considers it worthwhile to highlight the specific features of Turkish law in this sphere. In the majority of countries which require hormone treatment or gender reassignment surgery as a prior condition for legal recognition of a person ’ s preferred gender, the individual ’ s sterility or infertility is assessed after the medical or surgical procedure for gender reassignment (see paragraphs 42-43 above). However, while Turkish law makes the amendment of the individual ’ s civil status contingent upon physical change following gender reassignment surgery “carried out in conformity with the aim specified in the court authorisation and using those medical techniques”, it is apparent from the impugned ruling of the Mersin District Court that in the present case the inability to procreate was a requirement which had be satisfied in advance of the gender reassignment process, with the result that it determined the applicant ’ s access to gender reassignment surgery.", "113. On the basis of the evidence in the file, and in particular the witness statements of the applicant ’ s family before the domestic courts (see paragraph 9 above), the Court observes that the applicant has for many years lived in society as a man. It is also apparent that he has received psychological counselling since adolescence and was diagnosed as transgender by a committee of experts in psychology, who also concluded that it was necessary for him to live henceforth with a male identity (see paragraphs 7, 10 and 14 above). In September 2005, when he applied to the courts for the first time for authorisation to undergo gender reassignment surgery, the applicant had thus already been engaged for many years in a process of gender transition; he was receiving psychological counselling and had for a long time been acting as a man in society.", "114. Despite this situation, the domestic courts initially refused him the authorisation he needed in order to undergo the physical change to which he aspired. The Court reiterates in that regard that serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin, cited above, § 77).", "115. Furthermore, the Court has previously held that it cannot be suggested that there is anything capricious in the decision taken by a person to undergo gender reassignment, given the numerous and painful interventions involved and the level of commitment and conviction required to achieve a change in social gender role (see Christine Goodwin, cited above, § 81, and Schlumpf, cited above, § 110).", "116. In the present case the Court notes that the domestic courts justified their initial refusal to grant the applicant ’ s request solely by reference to the fact that he retained his ability to procreate. It fails to see why persons wishing to undergo gender reassignment surgery should have to demonstrate that they are unable to procreate even before the physical process of gender change can be undertaken.", "117. In that regard the Court notes, in view of the information provided by the parties, that domestic law makes provision for medical procedures with a view to voluntary sterilisation (see paragraphs 23-24 above). In his observations of 25 October 2010 the applicant maintained that he did not have access to these procedures within the existing legal framework (see paragraphs 83 and 87 above). He added that there were no legislative provisions laying down the procedure to be followed or the type of treatment he could undergo, and that there was therefore a legal vacuum in that regard (see paragraphs 85-87 above). In his additional observations of 23 October 2013 the applicant ’ s lawyer stated that his client, after lodging the present application with the Court, had resorted to hormone treatment without any judicial or medical supervision (see paragraph 47 above).", "118. While maintaining that the domestic courts ’ refusal of the applicant ’ s request on account of his ability to procreate had been in accordance with the law, the Government contended that neither the legislation complained of nor the detailed arrangements for its implementation required the applicant to undergo prior medical sterilisation or hormone therapy (see paragraph 91 above). However, the Court fails to see how, other than by undergoing a sterilisation operation, the applicant could have complied with the requirement of permanent infertility given that, in biological terms, he had the ability to procreate.", "119. In any event, the Court does not deem it necessary to rule on the question of possible access by the applicant to medical treatment that would have enabled him to satisfy this requirement, since it considers that due respect for his physical integrity precluded any obligation for him to undergo this type of treatment.", "120. Moreover, in the circumstances of the present case and in view of the manner in which the applicant ’ s complaint was framed, it suffices for the Court to note that the applicant challenged, both in the domestic courts and in the Convention proceedings, the reference in the legislation to a permanent inability to procreate as a prior requirement for authorisation to undergo gender reassignment.", "121. In the Court ’ s view, this requirement appears wholly unnecessary in the context of the arguments advanced by the Government to justify the regulation of gender reassignment surgery (see paragraphs 74 and 75 above). Accordingly, even assuming that the reason for the rejection of the applicant ’ s initial request to undergo gender reassignment surgery was relevant, the Court considers that it cannot be regarded as sufficient. The interference with the applicant ’ s right to respect for his private life arising from that rejection cannot therefore be considered “necessary” in a democratic society.", "The fact that the Mersin District Court changed its approach, authorising the applicant in May 2013 to undergo gender reassignment surgery notwithstanding the medical findings to the effect that he was not permanently unable to procreate (see paragraphs 24 and 25 above), undoubtedly supports this conclusion.", "122. Accordingly, the Court considers that in denying the applicant for many years the possibility of undergoing gender assignment surgery, the State breached his right to respect for his private life. There has therefore been a violation of Article 8 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1965 and lives in Ostia Lido.", "6. At birth, the applicant was entered in the civil-status registers as male and was given the forename L. However, the applicant stated that she had always identified as female and lived in society as a woman under the forename S. For instance, her work colleagues (the applicant has worked as a civil servant since 1999) had always called her S., and in the photograph on her identity card issued in August 2000 her appearance was that of a woman.", "7. In 1999 S.V. began treatment with feminising hormones as part of the gender transition process.", "8. On 9 November 2000 she applied to the Rome District Court on the basis of section 3 of Law no. 164 of 1982, stating that she wished to complete the transition process by permanently changing her primary sexual characteristics, and sought authorisation to undergo gender reassignment surgery.", "9. In a judgment of 10 May 2001 the District Court found that the applicant had embarked on the gender transition process after careful consideration. Having taken note of her determination the court authorised her to undergo surgery in order to adapt her primary sexual characteristics to match her female gender identity.", "10. On 30 May 2001 the applicant, while awaiting the surgery authorised by the District Court, applied to the prefect of Rome for a change of forename under Article 89 of Presidential Decree no. 396 of 2000. She argued that, given that she had been undergoing a gender transition process for several years, and in view of her physical appearance, the fact that her identity papers indicated a male forename was a constant source of humiliation and embarrassment. She also asserted that the waiting period for surgery was approximately four years.", "11. In a decision of 4 July 2001 the prefect refused the applicant ’ s request on the grounds that, under Presidential Decree no. 396 of 2000, a person ’ s forename had to correspond to his or her gender. In the prefect ’ s view, in the absence of a final court ruling ordering the change to her legal gender status for the purposes of Law no. 164 of 1982, the applicant ’ s forename could not be changed.", "12. The applicant appealed against that decision to the Lazio Regional Administrative Court and also requested a stay of execution of the prefect ’ s decision.", "13. On 23 July 2001 the applicant underwent mammoplasty. On 6 September 2001 she was placed on a waiting list at Trieste University Hospital for surgery to alter her primary sexual characteristics.", "14. On 21 February 2002 the Regional Administrative Court refused to grant a stay of execution of the prefect ’ s decision.", "15. On 3 February 2003, while the proceedings before the Regional Administrative Court were still pending on the merits, the applicant underwent an operation to change her sexual characteristics from male to female. She subsequently applied to the Rome District Court, on an unspecified date, for legal recognition of her gender reassignment under section 3 of Law no. 164 of 1982.", "16. In a judgment of 10 October 2003 the Rome District Court granted the applicant ’ s request and ordered the Savona municipal authorities to alter the indication of the applicant ’ s gender from male to female and to change the forename L. to S.", "17. By a judgment of 6 March 2008, deposited with the registry on 17 May 2008, the Regional Administrative Court dismissed the applicant ’ s appeal against the prefect ’ s decision of 4 July 2001. The court held that Article 89 of Presidential Decree no. 396 of 2000 concerning changes of forename was not applicable in the present case, which actually came within the scope of Law no. 164 of 1982 concerning changes to legal gender status. The court stressed in that regard that, under the terms of the latter, the amendment of the civil - status records of a transgender person had to be ordered by the court ruling on his or her gender reassignment. It therefore considered that the prefect had correctly refused the applicant ’ s request.", "The applicant did not appeal against that judgment." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Law no. 164 of 1982", "18. Law No. 164 of 1982 lays down rules on changes to legal gender status ( rettificazione di attribuzione di sesso ). Under that Law as in force at the material time, a person ’ s legal gender status could be changed on the basis of a final judgment of the court recognising a change of gender from that indicated in the person ’ s birth certificate, following the alteration of his or her sexual characteristics ( section 1). If necessary, the court could order an expert opinion to assess the physical and psychological state of the person making the request. In the judgment granting the request, the court ordered the municipality with which the birth certificate was registered to amend the civil - status register ( section 2).", "19. Section 3 of the Law provided as follows :", "“Where it is necessary to adapt the person ’ s sexual characteristics by means of medical or surgical treatment, the court shall deliver a judgment authorising such treatment. In such cases the court, [sitting] in private, shall order the change of legal gender status after verifying that the treatment has been carried out.”", "20. Section 3 was subsequently amended by Article 31 § 4 of Legislative Decree no. 150 of 2011. A second decision given in private is now no longer required in order to obtain a change of legal gender status.", "Article 31 § 4 reads as follows :", "“ Where it is necessary to adapt the person ’ s sexual characteristics by means of medical or surgical treatment, the court shall deliver a judgment authorising such treatment.”", "B. Presidential Decree no. 396 of 2000 and Royal Decree no. 1238 of 1939", "21. Under Article 35 of Presidential Decree No. 396 of 3 November 2000, the forename given to a child must correspond to the child ’ s gender. According to Article 89 of the same decree, without prejudice to the provisions applicable to the correction of the civil-status records, persons seeking to change their forename or to add another forename to the existing one, or to change their surname because of its shameful or ridiculous nature or because it reveals their biological descent, must submit a request, giving reasons, to the competent prefect.", "22. Prior to the entry into force of Presidential Decree No. 396, responsibility for dealing with applications for a change of surname or first name, governed at that time by Articles 158 et seq. of Royal Decree no. 1238 of 1939, lay with the public prosecutor.", "23. By decision no. 18 of 12 April 1999, the public prosecutor at the Rome Court of Appeal granted a request for a change of name made by M.U., a transgender person who had not undergone surgery, under Article 158 of Royal Decree no. 1238. The person concerned, who was male, told the public prosecutor that he had always had a typically female mindset and behaviour, and alleged that having a male forename made it difficult for him to integrate socially and caused him immense personal suffering. The prosecutor declared M.U. ’ s request admissible and authorised the change of forename.", "C. The Court of Cassation ’ s case-law", "24. In judgment no. 15138 of 20 July 2015, referring inter alia to the principles set out in the Court ’ s case-law, the Court of Cassation ruled that section 3 of Law No. 164 of 1982 could not be construed as requiring a transgender person to have recourse to surgery in order to obtain recognition of his or her gender identity, since a match between sexual orientation and physical appearance could be achieved through psychological and medical treatment which respected the person ’ s physical integrity. The Court of Cassation thus brought to an end the divergence of interpretation in this regard that had existed between the lower courts.", "D. The Constitutional Court ’ s case-law", "25. By judgment no. 221 of 20 October 2015 the Constitutional Court rejected a plea of unconstitutionality with regard to sections 1 and 3 of Law no. 164 of 1982. Referring, inter alia, to Court of Cassation decision no. 15138, it stated first of all that the legislative provisions in question were the result of cultural and legal change aimed at recognising gender identity as a component of the right to personal identity. Interpreting the absence of an explicit indication of the means of altering a person ’ s sexual characteristics in the light of fundamental human rights, it added that such absence meant that surgical treatment was not a requirement for the purpose of obtaining a change of legal gender status, as it was only one of the possible treatments that could be used in order to alter a person ’ s appearance.", "III. INTERNATIONAL LAW", "A. United Nations", "26. In her report of 17 November 2011 to the Human Rights Council on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (A/HRC/19/41), the United Nations High Commissioner for Human Rights noted in particular that the regulations in countries that recognised changes in gender often required, implicitly or explicitly, that applicants undergo sterilisation surgery as a condition of recognition (§ 72). She recommended, among other things, that Member States (§ 84 (h)):", "“[f]acilitate legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name, without infringements of other human rights.”", "B. The Committee of Ministers and Parliamentary Assembly of the Council of Europe", "27. On 31 March 2010 the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity. The recommendation states in particular that “ [m] ember states should take appropriate measures to guarantee the full legal recognition of a person ’ s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way; member states should also ensure, where appropriate, the corresponding recognition and changes by non-state actors with respect to key documents, such as educational or work certificates” (Appendix, point 21).", "28. In Resolution 1728 (2010), adopted on 29 April 2010, on discrimination on the basis of sexual orientation and gender identity, the Parliamentary Assembly of the Council of Europe called on States to “address the specific discrimination and human rights violations faced by transgender persons and, in particular, ensure in legislation and in practice [the right of transgender persons] to ... official documents that reflect an individual ’ s preferred gender identity, without any prior obligation to undergo sterilisation or other medical procedures such as sex reassignment surgery and hormonal therapy” (point 16.11.2).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "29. The applicant alleged that the refusal of her request to change her forename, on the grounds that her gender reassignment surgery had not yet been performed, infringed her right to respect for her private life under Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "30. The applicant also relied on Article 3 of the Convention, which reads as follows :", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "31. As master of the characterisation to be given in law to the facts of the case, the Court considers it appropriate to examine the applicant ’ s allegations from the standpoint of Article 8 of the Convention alone (see A.P., Garçon and Nicot v. France, nos. 79885/12 and 2 others, § 149, 6 April 2017 (extracts), and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).", "A. Admissibility", "1. The applicant ’ s victim status", "32. The applicant submitted that she continued to be the victim of the alleged violation despite having been given permission to change her name by the Rome District Court ’ s judgment of 10 October 2003.", "33. Although the Government did not raise any objection regarding the applicant ’ s victim status, the Court is not prevented from examining the issue of its own motion, in so far as it goes to its jurisdiction (see, for instance, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016, and Orlandi and Others v. Italy, nos. 26431/12 and 3 others, § 117, 14 December 2017).", "34. The Court reiterates that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, for example, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; Scordino v. Italy (no. 1) [GC], no. 36813/97, § § 179- 80, ECHR 2006 ‑ V; and Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010). Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application (see Eckle, cited above, §§ 69 et seq. ).", "35. In the present case it is true that the national authorities adopted a decision favourable to the applicant in giving her permission to change her name as she had requested. However, the Court cannot overlook the fact that the situation which gave rise to the present application, namely the applicant ’ s inability to obtain a change of name owing to the refusal of the judicial authorities, lasted for over two and a half years. The Court considers that the applicant ’ s private life was directly affected by the courts ’ refusal during this period (see Y.Y. v. Turkey, no. 14793/08, § 53, ECHR 2015 (extracts)). Furthermore, neither the judgment of 10 October 2003 nor the other domestic decisions in the applicant ’ s case contained any express acknowledgement of a violation of the applicant ’ s Convention rights. Hence, the authorisation granted to the applicant cannot be interpreted as acknowledging in substance a violation of her right to respect for her private life ( ibid., § 53).", "36. Accordingly, the Court finds that the applicant can claim to be a “victim” within the meaning of Article 34 of the Convention.", "2. Exhaustion of domestic remedies", "37. The Government raised an objection of failure to exhaust domestic remedies on the grounds that the applicant had not appealed against the judgment of the Regional Administrative Court to the Consiglio di Stato. They maintained that the highest administrative court might have accepted the applicant ’ s arguments and set aside the prefect ’ s decision.", "38. The applicant replied that an appeal to the Consiglio di Stato would have had no prospect of success in view of the positive law in force in Italy, which precluded any change of forename before the change of legal gender status had been ordered by the courts. Since the entry into force of Presidential Decree no. 396 of 2000, in other words, since responsibility for taking decisions on requests for a change of name had been devolved to the prefects, no request made by a transgender person during the gender transition process had been granted; that had not been the case under the previous arrangement, when responsibility had lain with the public prosecutor. In her application, the applicant cited in that regard a decision of 12 April 1999 in a similar case to her own. She added that the Government had not demonstrated that an appeal to the Consiglio di Stato would have produced a favourable outcome and was therefore a remedy that had to be exercised.", "39. The Court observes that the obligation to exhaust domestic remedies requires applicants to have normal recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness ( see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV). Furthermore, the rule on exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that the Court must take realistic account of the general legal and political context in which the remedies operate, as well as the personal circumstances of the applicants ( see Menteş and Others v. Turkey, 28 November 1997, § 58, Reports 1997 ‑ VIII, and Gas and Dubois v. France (dec.), no. 25951/07, 31 August 2010).", "40. The Court further reiterates that, to be effective, a remedy must be capable of remedying directly the impugned state of affairs and offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).", "41. Lastly, the Court reiterates that, as regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement ( see McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 77, 25 March 2014).", "42. In the present case the Court observes that the applicant tried to obtain a change of forename by applying to the prefect in accordance with Article 89 of Presidential Decree no. 396 of 2000, which had entered into force seven months earlier. In the proceedings before the Court the applicant maintained, citing an example from the case-law, that prior to the entry into force of that provision the public prosecutor, who at the time had been responsible for such decisions, had regularly granted requests for a change of forename made by transgender persons, even in the absence of a final court ruling ordering the change of legal gender status. By contrast, the applicant stated that she was not aware of any favourable decision taken by a prefect under the new presidential decree (no. 396 of 2000).", "43. As to the Government, the Court notes that they merely argued that an appeal to the Consiglio di Stato constituted a remedy capable of allowing the applicant to obtain redress for the alleged violation. They did not back up this assertion by reference to established case-law or practice.", "44. Consequently, in view of the information available to it, the Court considers that, while the applicant could expect that her request would be granted when she made it in 2001, given the practice existing prior to the entry into force of the new presidential decree (no. 396), she could also legitimately infer from the legal context in 2008 that an appeal to the Consiglio di Stato was bound to fail. Accordingly, the Government ’ s objection should be dismissed.", "45. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "46. The applicant submitted that the national authorities ’ refusal to allow her to change her forename before her gender reassignment surgery had breached her right to respect for her private life.", "47. In its judgment of 10 May 2001 the Rome District Court had officially recognised her as being transgender. As a result, her right to respect for her gender identity should have been protected despite the fact that the gender reassignment process had not yet been concluded by means of surgery. In the applicant ’ s view, the Government were wrong to invoke the margin of appreciation available to States in this regard, as the national system had been applied rigidly although Law no. 164 of 1982 made no mention of surgery as one of the conditions in order for transgender persons to obtain recognition of their gender identity. The authorities had interpreted the national legislation restrictively and had thus failed to fulfil the positive obligations inherent in respect for Article 8 of the Convention.", "48. In her observations the applicant also specified that her complaints related solely to the authorities ’ refusal to allow her to change her forename and did not call into question the decision-making process concerning changes to legal gender status.", "49. The Government replied that in seeking a change of forename the applicant ’ s sole aim had been to have her new gender identity recognised without undergoing surgery, in breach of the legislative provisions in force. Italian positive law allowed transgender persons to have their forenames corrected only after the authorities had assessed their true psychological state and their behaviour. The records concerning the applicant ’ s forename and gender had been corrected in 2003 after she had completed the transition process by undergoing the surgery authorised by the District Court. Hence, the authorities had complied with the relevant statutory provisions in force at the relevant time and had enabled the applicant to have her new gender identity recognised.", "50. Lastly, the Government argued that Law no. 164 of 1982 laid down a procedure apt to ensure respect for each individual ’ s gender identity, thus enabling transgender persons to have their civil - status records amended. Hence, the present case could not be likened to cases in which States restricted the rights guaranteed by Article 8 of the Convention by refusing to recognise the new gender identity of persons who had undergone gender reassignment surgery.", "2. Observations of the third-party interveners", "51. The organisations Alliance Defending Freedom and Unione Giuristi Cattolici Italiani, third-party interveners, stated that the special rules laid down by Law no. 164 of 1982 concerning the amendment of the civil - status records of transgender persons did not provide for surgery as a prerequisite, but simply as one of the options that might be advocated in the context of an individual ’ s gender transition. It was therefore for the domestic judicial authorities to determine the issue on a case-by-case basis.", "52. In the view of the third-party interveners, the fact of preventing States from establishing objective criteria to be taken into consideration in procedures of this kind amounted to granting individuals powers of self ‑ determination that were incompatible with the interests of others.", "53. The Court ’ s case-law concerning the recognition of gender identity focused on the lawfulness of the restrictions placed on it, and the Court had consistently held that it was for States to define the mechanisms for recognition while taking into consideration the different interests at stake. This raised fundamental issues of definition with ramifications in the spheres of ethics, psychology and medical science, and in relation to which States had to be afforded a wide discretion. The response to transgender issues varied from one State to another depending on the specific features of the domestic environment, and each State defined rules aimed at striking a balance between the competing private and public interests within the country. In the third-party interveners ’ view, this approach was supported by the widely diverging legal options chosen by the member States regarding this issue.", "3. The Court ’ s assessment", "( a) Applicability of Article 8 of the Convention", "54. The Court reiterates that the concept of “private life” is a broad term not susceptible to exhaustive definition. It includes not only a person ’ s physical and psychological integrity, but can sometimes also embrace aspects of an individual ’ s physical and social identity. Elements such as gender identity or identification, names, sexual orientation and sexual life fall within the personal sphere protected by Article 8 of the Convention (see, in particular, Van Kück v. Germany, no. 35968/97, § 69, ECHR 2003 ‑ VII; Schlumpf v. Switzerland, no. 29002/06, § 77, 8 January 2009; and Y.Y. v. Turkey, cited above, § 56, and the references cited therein).", "55. The Court further reiterates that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 of the Convention (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). This has led it to recognise, in the context of the application of that provision to transgender persons, that it includes a right to self-determination (see Van Kück, § 69, and Schlumpf, § 100, both cited above), of which the freedom to define one ’ s sexual identity is one of the most basic essentials (see Van Kück, cited above, § 73). It has also found that the right of transgender persons to personal development and to physical and moral security is guaranteed by Article 8 (see, among other authorities, Van Kück, § 69; Schlumpf, § 100; and Y.Y. v. Turkey, § 58, all cited above).", "56. The Court ’ s judgments in this sphere have hitherto concerned legal recognition of the gender identity of transgender persons who had undergone reassignment surgery (see Rees v. the United Kingdom, 17 October 1986, Series A no. 106; Cossey v. the United Kingdom, 27 September 1990, Series A no. 184; B. v. France, 25 March 1992, Series A no. 232-C; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI; I. v. the United Kingdom [GC], no. 25680/94, 11 July 2002; Grant v. the United Kingdom, no. 32570/03, ECHR 2006-VII; and Hämäläinen v. Finland [GC], no. 37359/09, ECHR 2014), the conditions of access to such surgery (see Van Kück, cited above; Schlumpf, cited above; L. v. Lithuania, no. 27527/03, ECHR 2007 ‑ IV; and Y.Y. v. Turkey, cited above), and the legal recognition of the gender identity of transgender persons who had not undergone gender reassignment treatment approved by the authorities, or who did not wish to undergo such treatment (see A.P., Garçon and Nicot, cited above ).", "57. The Court stresses that the present case concerns the inability of a transgender person to obtain a change of forename prior to completion of the gender transition process by means of reassignment surgery. This is an issue potentially facing transgender persons which differs from the issues hitherto examined by the Court.", "58. Nevertheless, the right to respect for private life applies fully to this issue, which therefore indisputably falls within the scope of Article 8 of the Convention, as the Court has asserted more broadly in cases concerning the choice of, or changes to, individuals ’ forenames or surnames (see, among many other authorities, Golemanova v. Bulgaria, no. 11369/04, § 37, 17 February 2011, and Henry Kismoun v. France, no. 32265/10, § 25, 5 December 2013).", "59. Accordingly, the “private life” aspect of Article 8 of the Convention is applicable to the present case; moreover, this was not disputed by the Government.", "( b) Compliance with Article 8 of the Convention", "60. The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. While the boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition, the applicable principles are nonetheless similar. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual (see, among other authorities, Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013).", "61. The Court also observes that, when it comes to laying down the conditions required in order for individuals to obtain a change of name, the Contracting States enjoy a wide margin of appreciation. Whilst recognising that there may exist genuine reasons prompting an individual to wish to change his or her surname or forename, the Court reiterates that legal restrictions on such a possibility may be justified in the public interest, for example in order to ensure accurate population registration or to safeguard the means of personal identification and of linking the bearers of a given name to a family ( see Golemanova, cited above, § 39, and Henry Kismoun, cited above, § 31).", "62. However, as regards the balancing of the competing interests, the Court has emphasised the particular importance of matters relating to a most intimate part of an individual ’ s life, namely the right to gender identity, a sphere in which the Contracting States have a narrow margin of appreciation (see Hämäläinen, cited above, § 67, and A.P., Garçon and Nicot, cited above, § 123).", "63. The main question to be addressed in the present case is whether, in view of the margin of appreciation available to it, Italy struck a fair balance between the general interest and the individual interest of the applicant in having a forename that matches her gender identity.", "64. The Court observes at the outset that Italian law permits transgender persons to have their gender identity legally recognised by amending their civil - status records in accordance with Law no. 164 of 1982 (see paragraph 18 above).", "65. The Court takes note of the position of the applicant, who alleged that she had been unable to obtain permission to change her forename until she had undergone her gender assignment surgery. It also observes that the applicant did not claim that she had been required to undergo the surgery against her will or solely in order to obtain legal recognition of her gender identity. On the contrary, it is apparent from the documents in the domestic proceedings that she sought to have surgery in order for her physical appearance to match her gender identity, and that she was authorised to do so by the District Court. Therefore, in contrast to the case of A.P., Garçon and Nicot (cited above, § 135), the present case does not concern interference with the applicant ’ s right to respect for her physical integrity in breach of Article 8 of the Convention.", "66. The Court must therefore determine whether the authorities ’ refusal to allow the applicant to change her forename during the gender transition process and before the completion of her gender reassignment surgery constituted disproportionate interference with her right to respect for her private life.", "67. The Court notes that, following the District Court judgment of 10 May 2001 which authorised the surgery, the applicant was refused permission to change her forename through administrative channels on the grounds that any amendment to the civil-status records of a transgender person had to be ordered by a judge in the proceedings concerning the change of legal gender status. Consequently, the applicant, in accordance with section 3 of Law no. 164 of 2000 as in force at the relevant time, had to wait until the court confirmed that the surgery had been performed and gave a final ruling on her gender identity, which it did only on 10 October 2003.", "68. The Court stresses that its task is not to take the place of the competent national authorities in determining the most appropriate policy governing changes of forename for transgender persons, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation.", "69. Accordingly, it does not call into question as such the choice of the Italian legislature to entrust decisions on changes to the civil-status register concerning transgender persons to the judicial rather than the administrative authority. Moreover, the Court fully accepts that safeguarding the principle of the inalienability of civil status, the consistency and reliability of civil-status records and, more broadly, the need for legal certainty are in the general interest and justify putting in place stringent procedures aimed, in particular, at verifying the underlying motivation for requests for a change of legal identity (see, mutatis mutandis, A.P., Garçon and Nicot, cited above, § 142).", "70. Nevertheless, the Court cannot but note that the refusal of the applicant ’ s request was based on purely formal arguments that took no account of her particular circumstances. For instance, the authorities did not take into consideration the fact that she had been undergoing a gender transition process for a number of years and that her physical appearance and social identity had long been female.", "71. In the circumstances of the present case the Court fails to see what reasons in the public interest could have justified a delay of over two and a half years in amending the forename on the applicant ’ s official documents in order to match the reality of her social situation, which had been recognised by the Rome District Court in its judgment of 10 May 2001. In that connection it reaffirms the principle according to which the Convention protects rights that are not theoretical or illusory, but practical and effective.", "72. By contrast, the Court observes the rigid nature of the judicial procedure for recognising the gender identity of transgender persons as applicable at the relevant time, which placed the applicant for an unreasonable length of time in an anomalous position in which she was apt to experience feelings of vulnerability, humiliation and anxiety (see, mutatis mutandis, Christine Goodwin, cited above, §§ 77-78).", "73. The Court refers to Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, in which the Committee of Ministers urged States to make possible the change of name and gender in official documents in a quick, transparent and accessible way (see paragraph 25 above).", "74. The Court also observes with interest that Legislative Decree no. 150 of 2011 amended section 3 of Law no. 164 of 1982, with the result that a second court ruling, after surgery, is no longer required in proceedings concerning a change of legal gender status, as the amendment of the civil-status records can be ordered by the judge when giving the decision authorising the surgery (see paragraph 20 above).", "75. Accordingly, in view of the foregoing, the Court considers that the applicant ’ s inability to obtain a change of forename over a period of two and a half years, on the grounds that the gender transition process had not been completed by means of gender reassignment surgery, amounts in the circumstances of the present case to a failure on the part of the respondent State to comply with its positive obligation to secure the applicant ’ s right to respect for her private life.", "There has therefore been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "76. The applicant alleged a violation of Article 14 read in conjunction with Article 8 of the Convention.", "77. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It should therefore be declared admissible. However, in view of its finding concerning Article 8 (see paragraph 74 above), the Court considers it unnecessary to examine whether there has been a violation in the present case of the provision relied on ( see A.P., Garçon and Nicot, cited above, § 158).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "79. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.", "80. The Government contested that claim.", "81. The Court considers in the circumstances of the present case that its finding of a violation of Article 8 of the Convention constitutes in itself sufficient just satisfaction.", "B. Costs and expenses", "82. The applicant also claimed EUR 1,200 for the costs and expenses incurred before the domestic courts and EUR 10,000, or such other amount as the Court deemed equitable, for those incurred before the Court.", "83. The Government did not submit any observations on this point.", "84. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the overall sum of EUR 2,500 covering costs under all heads.", "C. Default interest", "85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1987 and lives in Budapest. The applicant was represented by Mr Cs. Tordai, a lawyer practising in Budapest.", "3. The Government were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant was born female in Iran but, according to the applicant, identified as male from an early age. On 29 January 2018 he submitted to the Court the English translation of a medical opinion issued on 8 September 2013 by two Iranian medical experts which confirmed that he suffered from sexual dysfunction and a personality disorder.", "6. In July 2015 the applicant applied for asylum in Hungary, maintaining that while he had been born female, he had always identified as male, a fact which had manifested itself through his wearing men ’ s clothes, working as a kickboxing trainer and being attracted to women.", "7. On 14 December 2015 the asylum authority, considering that the applicant had been subjected to persecution in Iran due to his gender identity (transsexuality), recognised the applicant as a refugee.", "8. On 6 March 2016 the applicant applied for a gender and name change to the Hungarian Immigration and Citizenship Office (“the Office”). He submitted that the official documents issued to him in Iran identified him as female, but that this did not match his real gender identity.", "9. In its letter of 30 March 2016, the Office informed the applicant that gender reassignment was in principle registered by the Office of the Registrar of Births/Marriages/Deaths with jurisdiction over the petitioner ’ s place of birth, and that this was dependent upon the opinion of the Ministry of Human Resources. The birth data of refugees, however, continued to be registered by the relevant foreign authorities.", "10. On 6 July 2016 the Office issued a formal rejection decision without examining the application on the merits, holding that it did not have jurisdiction to take any further action. Because the applicant ’ s birth had not been registered in Hungary, the application could not be forwarded to the relevant registrar. The applicant sought judicial review.", "11. On 25 November 2016 the Budapest Administrative and Labour Court dismissed the case, upholding the conclusion of the Office as to the Hungarian administrative authorities ’ lack of jurisdiction. It reiterated that the authorities processed Hungarian citizens ’ applications for legal gender recognition according to the procedure developed in practice (see paragraph 14 below). It also emphasised that no formal decision on gender reassignment was delivered; the registration of the gender change in the birth register itself served as the decision. As a non-Hungarian citizen enjoying refugee status in Hungary, the applicant did not have a family register record in Hungary, so the practice followed in respect of Hungarian citizens could not be applied to his case. The court also referred to the fact that the applicant had failed to attach to his application the medical documentation required according to the otherwise applicable practice, in the absence of which recognition of the gender change was not possible.", "12. On 17 February 2017 the applicant lodged a constitutional complaint against the Budapest Administrative and Labour Court ’ s decision, arguing, inter alia, that the register of personal data and residence addresses included data on name and gender and that the requested change could be registered therein. On 13 June 2017 the Constitutional Court declared his complaint admissible.", "13. On 19 June 2018 the Constitutional Court rejected the applicant ’ s constitutional complaint, holding that the adjudicating judge could not have decided differently within the existing legal framework since no statutory basis for changing the names of non-Hungarian citizens existed. The Constitutional Court held that the right to change one ’ s name was a fundamental one. This was even more the case when it came to changing name after gender reassignment, because of the inviolability of human identity and human dignity. Changing name following a change of gender fell within the ambit of the right to a name. In fact, changing name went hand in hand with changing gender, in so far as everyone was entitled to have a name that was aligned with his or her gender. The State was therefore obliged to adopt regulations that acknowledged gender reassignment and provided a discrimination-free opportunity to enter the resulting name change into the register. The complete lack of regulations excluded lawfully settled non-Hungarian citizens from the name-changing procedure, including those whose country of origin did not allow for such a procedure. The Constitutional Court considered that the legislative omission identified was disproportionately restrictive and unconstitutional. In its view, the legislator was under the obligation to find a different solution for petitioners without Hungarian birth certificates, for example by entering the change of name in other documents received from the Hungarian authorities. The Constitutional Court called upon Parliament to meet its legislative duty by 31 December 2018 and invited the applicant to resubmit his request.", "The legislative change requested by the Constitutional Court has not yet been carried out." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "14. At the material time, although Hungary did not have specific legislation on legal gender recognition, it was possible to change one ’ s documents on the basis of an informal practice. Applicants for legal gender recognition had to submit a medical expert opinion diagnosing transsexuality, recommending gender reassignment surgery – which was not in itself a prerequisite for the recognition – and excluding contraindications, together with an expert opinion of a clinical psychologist. The legal gender change was recognised in the registrar ’ s procedure (see paragraph 15 below) on the basis of an expert opinion issued by the Department for Healthcare and Public Health of the Ministry of Human Resources and notified to the civil registry.", "15. Section 69/ B( 1) of Act no. I of 2010 on the registrar ’ s procedure provides that the register of personal identification data in the electronic family register contains, inter alia, the data subject ’ s surname and forename at birth and the subject ’ s gender, as well as any modification of these data.", "16. Section 27 of the Decree of the Public Administration and Justice Minister no. 32/2014 (V. 19.) on detailed rules for performing the registrar ’ s duties, which was adopted on 19 May 2014, provides:", "“The Central Office of the Registrar shall promptly notify the registrar keeping the register of births of the change of name in connection with gender reassignment in order to make the change in the birth register. The registering registrar shall enter the gender reassignment on the basis of the notification made by the Central Office of the Registrar.”", "As of 1 January 2017 this provision was amended as follows:", "“Within eight days upon receipt of the healthcare expert opinion supporting gender reassignment, the gender reassignment and the change of the forename made necessary by the foregoing shall be notified by the registry responsible for the change of name to the registrar keeping the register of births, for the purpose of entering them in the register. The registrar keeping the register of births shall enter the gender reassignment in the family register on the basis of the notification made by the registry responsible for the change of name, as the basic document, and the certified photocopy of the healthcare expert opinion.”", "Government Decree no. 429/2017 (XII. 20.) on the detailed rules for performing the registrar ’ s duties, which was adopted on 20 December 2017, includes the same provision in its section 7.", "17. An overview of relevant international materials is outlined in X v. the former Yugoslav Republic of Macedonia, no. 29683/16, §§ 31-34, 17 January 2019.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "18. The applicant complained that the refusal to change his name and his sex marker from “female” to “male” in his identity documents had amounted to a violation of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilitySubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The Government", "19. In their observations of 17 October 2017, the Government submitted that the application was premature as the domestic proceedings were still pending before the Constitutional Court. Alternatively, if the constitutional complaint could not be considered an effective remedy, then neither could judicial review proceedings, in which case the application had been lodged out of time.", "20. Furthermore, the Government raised an objection in relation to the applicant ’ s victim status. They contended that the applicant did not live at the address indicated in the application form and potentially not even in Hungary, so he could not be considered a victim of a violation resulting from Hungarian law. They also argued that the applicant had failed to prove his transsexuality by medical examination.", "21. Lastly, the Government argued that the application constituted an abuse of the right of individual application as it was in fact an actio popularis aimed at publicising the situation of transsexuals in Hungary.", "(b) The applicant", "22. The applicant submitted that the constitutional complaint could not be considered an effective remedy, since it did not provide for speedy redress. Alternatively, if ordinary judicial review proceedings were ineffective, as claimed by the Government, legal gender recognition was not possible for refugees in Hungary which meant that the violation was continuous.", "23. As regards his victim status, the applicant submitted that he lived in Hungary and had requested the legal recognition of his gender there. He had registered his new address in Budapest on 28 August 2017. The Hungarian authorities had recognised him as a refugee without questioning his transsexuality. They had then declined to examine on the merits his application for a legal change of gender, including the medical examination of his transsexuality.", "The Court ’ s assessment", "(a) Applicability of Article 8 of the Convention", "24. The right to respect for private life under Article 8 of the Convention extends to gender identity and individuals ’ names, as components of personal identity (see A.P., Garçon and Nicot v. France, nos. 79885/12 and 2 others, §§ 92-94, 6 April 201 7 (extracts), and S.V. v. Italy, no. 55216/08, §§ 57-59, 11 October 2018). The present case concerns the inability of the applicant as a transgender refugee to obtain the legal recognition of his gender identity and his resulting change of name. The “private life” aspect of Article 8 of the Convention is therefore applicable to the present case, a fact which was, moreover, not disputed by the Government.", "(b) Non-exhaustion of domestic remedies and non-compliance with the six-month rule", "25. The Court notes that the applicant lodged his application with the Court while the proceedings before the Constitutional Court were still pending. In the meantime, on 19 June 2018 the Constitutional Court rejected the applicant ’ s constitutional complaint (see paragraph 13 above). The Court must therefore dismiss the Government ’ s objection that the application was premature (see paragraph 19 above).", "26. As regards the Government ’ s argument that the application was submitted out of time since the six-month time-limit should be regarded as having started to run before the applicant had instituted the judicial proceedings, the Court observes the following. The Budapest Administrative and Labour Court dismissed the applicant ’ s case, reiterating that the Hungarian administrative authorities had no jurisdiction in the matter (see paragraph 11 above). In its decision of 19 June 2018, the Constitutional Court established that there existed an unconstitutional legislative omission with respect to the name-changing procedure for lawfully settled non-Hungarian citizens such as the applicant (see paragraph 13 above). It required Parliament to introduce a remedy for this omission by 31 December 2018, which has yet to be done. Accordingly, the Court considers that it was not unreasonable for the applicant to initiate judicial proceedings to have his position settled at domestic level before submitting his complaint to the Court. It therefore considers that the applicant ’ s court action cannot be regarded as futile. The Court is satisfied that it interrupted the running of the six-month time-limit and, consequently, dismisses the Government ’ s objection on non-compliance with the six-month rule.", "(c) Victim status and abuse of the right of individual application", "27. At the outset, the Court notes that on 28 August 2017 the applicant registered his new address in Hungary and informed the Court accordingly. The Government did not dispute that the applicant actually lived there. They argued, however, that the applicant had failed to prove his transsexuality by medical examination and objected to his victim status on that ground.", "28. The Court observes that the domestic authorities rejected the applicant ’ s application for the change of his sex marker without considering it on the merits or examining whether the applicant in fact fulfilled the medical conditions required in practice for such a change to be registered. The applicant complained about the effects of those decisions and the deficient legal framework on his Article 8 rights.", "29. The Court, without prejudging the merits of the case, cannot discern any elements which could call into question either the applicant ’ s victim status or the responsibility of the respondent State. In these circumstances, the Court also rejects the Government ’ s contention that the applicant abused the right of individual application by lodging an actio popularis.", "(d) Conclusion", "30. The Court concludes that the complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "31. Referring to this Court ’ s case-law, the applicant submitted that the member States had positive obligations in respect of the legal recognition of a transgender person ’ s gender identity. There was no legal framework for the procedure for legal gender recognition in Hungary, regardless of the place of birth of the applicant. The procedure in place was not foreseeable, accessible and precise.", "32. The applicant further submitted that while it was left to the State to set up the procedure by which gender change could be legally recognised, Hungary could not exclude him – as a refugee whose personal status was governed by its laws – from accessing such a procedure just because he did not have a Hungarian birth certificate. In the absence of such a certificate, the decision on the legal recognition of his gender could take other forms. He could not be expected to request recognition of his gender in his country of origin, where he had been persecuted on the basis of his transsexuality, which was precisely why Hungary had granted him refugee status in the first place.", "(b) The Government", "33. The Government submitted that they would take the same position on the issues raised in the application as the Constitutional Court, where the case was still pending at the time of the Government ’ s observations (the decision was adopted on 19 June 2018). They emphasised that no permission was needed to change “legal gender” in Hungary, as the change was merely registered by a rectification to the birth register. Consequently, foreigners (including refugees) could not have changes of gender registered.", "34. The Government further submitted that the applicant could contact the Iranian authorities to have his gender change registered in Iran. Moreover, the fact that he was recognised as a refugee did not mean that his transsexuality was established by the Hungarian authorities. In this connection, they argued that the applicant ’ s transsexuality had never been medically established and that he had failed to enclose any medical documentation with his application to the domestic authority. In their submissions of 2 February 2018, the Government argued that the medical certificate submitted by the applicant (see paragraph 5 above) did not prove his transsexuality by European medical standards.", "Observations of the third-party interveners", "35. Transgender Europe, the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and Transvanilla jointly pointed to the difficulties faced by transgender asylum ‑ seekers and refugees in their countries of settlement. They provided a comparative overview of national regulations in the area of legal gender recognition and outlined relevant developments in Hungary.", "The Court ’ s assessment", "36. The Court observes that the applicant alleged the existence of an unjustifiably restrictive practice on the part of the Hungarian authorities, which made access to the legal gender recognition procedure conditional on the petitioner having a Hungarian birth certificate, and a deficient legislative framework.", "37. The Court notes in this connection that the Hungarian legal system at the relevant time permitted transgender persons to have their gender identity legally recognised by having their civil status corrected on the basis of rectifications made to the family register (see paragraph 14 above). While the applicants for legal gender recognition had to provide a medical expert opinion diagnosing transsexuality and recommending gender reassignment surgery, the latter was not in itself a prerequisite for the recognition (see ibid.). However, as observed by the Constitutional Court, there was a gap in the relevant legislation in that there was no statutory basis allowing for recognition of gender reassignment and access to the name-changing procedure for lawfully settled non-Hungarian citizens (see paragraph 13 above). Therefore, the Court considers that the applicant ’ s complaint falls to be examined from the standpoint of whether or not the respondent State has failed to comply with the positive obligation to secure the applicant ’ s right to respect for his private life, in particular by not providing him with a procedure allowing him to have his gender identity legally recognised in the absence of a Hungarian birth certificate (see, mutatis mutandis, X v. the former Yugoslav Republic of Macedonia, no. 29683/16, §§ 63-65, 17 January 2019, and L. v. Lithuania, no. 27527/03, §§ 56-57, ECHR 2007 ‑ IV).", "38. The Court refers to the relevant Convention principles regarding positive obligations under Article 8, which have been summarised in Hämäläinen v. Finland ([GC], no. 37359/09, §§ 65 ‑ 67, ECHR 2014, with further references). It considers that the main question to be addressed in the present case is whether, in view of the margin of appreciation available to them, the Hungarian authorities struck a fair balance between the competing interests of the applicant in having his gender identity legally recognised and the community as a whole (ibid., § 65).", "39. The Court accepts that safeguarding the principle of the inalienability of civil status, the consistency and reliability of civil-status records and, more broadly, the need for legal certainty are in the general interest and justify putting in place stringent procedures (see, mutatis mutandis, A.P., Garçon and Nicot, cited above, § 142). It stresses that its task is not to take the place of the competent national authorities in determining the most appropriate policy governing procedures for changing gender and name. Therefore, the Court does not call into question as such the choice of the Hungarian authorities to regulate the legal recognition of gender change as a special kind of name-changing procedure performed by a registrar keeping the register of births (see paragraphs 14 - 16 above). Nevertheless, as regards the balancing of the competing interests, the Court also notes that an essential aspect of individuals ’ intimate identity is central to the present application because it concerns an individual ’ s gender identity, a sphere in which the Contracting States have a narrow margin of appreciation (see Hämäläinen, cited above, § 67, and A.P., Garçon and Nicot, cited above, § 123).", "40. In this connection, the Court refers to the findings of the Constitutional Court, according to which the legislative gap identified excluded all lawfully settled non-Hungarian citizens from accessing the procedures for changing gender and name regardless of their circumstances, which disproportionately restricted their right to human dignity (see paragraph 13 above). It further observes that the domestic authorities rejected the applicant ’ s application purely on formal considerations, without examining his situation and therefore without conducting any balancing exercise of the competing interests. In particular, the relevant authorities did not take into account the fact that the applicant had been recognised as a refugee precisely because he had been persecuted on the grounds of his transgenderism in his country of origin. The Court considers that in the circumstances of his case the applicant could not reasonably have been expected to pursue the recognition of gender reassignment and the name ‑ change procedure in his country of birth. In that connection, it reaffirms the principle that the Convention protects rights that are not theoretical or illusory, but practical and effective.", "41. It is true that any measure aimed at providing those without Hungarian birth certificates with the opportunity to access the procedure for legal gender recognition, together with an examination of their claims on the merits, may constitute an additional administrative burden on Hungarian authorities. However, this cannot in itself justify an unconditional refusal of the applicant ’ s application to obtain legal recognition of his true gender identity (compare and contrast Guerrero Castillo v. Italy ( dec. ), no. 39432/06, 12 June 2007), especially since the positive obligation as framed by the Constitutional Court (see paragraph 13 above) can be considered relatively narrow and the possible impact on the State does not appear to be severe (see Hämäläinen, cited above, § 66 in fine ).", "42. In view of the foregoing, the Court considers that by not giving the applicant access to the legal gender recognition procedure a fair balance has not been struck between the public interest and the applicant ’ s right to respect for his private life.", "There has therefore been a violation of Article 8 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "43. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "44. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.", "45. The Government submitted that the amount claimed by the applicant was excessive and that the finding of a violation would constitute sufficient just satisfaction.", "46. The Court considers that the applicant has suffered non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation. It awards the applicant EUR 6,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses", "47. The applicant claimed EUR 3,000 for the costs and expenses incurred before the Court, corresponding to twenty hours of legal work.", "48. The Government submitted that that amount was excessive.", "49. Having regard to all the materials in the case file, the Court considers it reasonable to award the applicant EUR 1,500 for the costs and expenses incurred before the Court, plus any tax that may be chargeable to the applicant.", "Default interest", "50. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant and her children are Russian nationals residing in Moscow. The President of the Section has decided, under Rule 47 § 4 of the Rules of Court, not to disclose their identities to the public.", "3. The applicant was represented by Ms T. Glushkova and Mr D. Khaymovich, lawyers practising in Moscow.", "4. The Government were represented initially by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr A. Fedorov.", "5. The facts of the case, as submitted by the parties, may be summarised as follows.", "6. The applicant, Ms A.M., was born in 1972. She is a post ‑ operative transgender woman (male-to-female transgender person). She was born genetically and phenotypically male and her gender was registered as “male” in her birth records. She currently identifies herself as female.", "7. The applicant brought the application on her own behalf and on behalf of her biological children. Mr M.M., who was born in 2009, and Ms K.M., born in 2012.", "Events preceding the restriction of the applicant’s parental rights", "8. On 18 July 2008 the applicant, whose gender at that time had been officially recorded as “male”, married Ms N.", "9. In February 2015 the applicant formally donated an apartment, where the family resided at the time, to Ms N.", "10. In June 2015 the marriage between the applicant and Ms N. was dissolved. Under the agreement between the former spouses, the children stayed with Ms N. and the applicant agreed to pay a monthly allowance to the children.", "11. On 31 July 2015 the Lyublinskiy District Court of Moscow legally recognised the applicant’s transition from the male to the female gender. On the basis of that judgment, the applicant was issued with new identification documents with her gender recorded as “female”.", "12. Until December 2016 the applicant regularly visited the children and spent time with them. During the visits she presented herself as male and wore men’s clothes, since otherwise Ms N. would have objected to the visits.", "13. From December 2016 onwards Ms N. started refusing visits from the applicant. In January 2017, following a complaint by the applicant, Ms N. was interviewed by the social services. The letter notifying the applicant of that interview stated the following:", "“... During the interview [with Ms N.] it was established that she categorically objects to your contact with underage children, since in her opinion it causes them psychological harm. She was advised [of the applicable legal provisions] which specify that parents have equal rights and equal duties in respect of underage children (parental rights); a parent residing separately has a right to visit them, take part in their upbringing and make [educational choices]. [Ms N. was informed of the available mediation procedures] ...”", "Restriction of the applicant’s parental rights", "14. On 9 January 2017 Ms N. initiated judicial proceedings aimed at restricting the applicant’s parental rights. She stated in her submissions that the applicant had been diagnosed with “transsexualism”, a mental health disorder, and had then undergone a transition from the male to the female gender, and had rarely had contact with the children after that. In Ms N.’s opinion these developments (1) had caused irreparable harm to the mental health and morals of the children, (2) could distort their perception of family, (3) could lead to an inferiority complex and bullying at school, and (4) could expose them to information on “non-traditional sexual relations”, such information being prohibited from distribution to minors.", "15. In her submissions in reply the applicant argued that she had never refrained from exercising her parental obligations, that she paid allowances to the children and that she had maintained close contact with them until Ms N. had started obstructing it. She further maintained that under domestic law, a parent could be restricted in the exercise of parental rights only if that parent lived together with a child and put the child in danger. In the applicant’s opinion, none of these conditions were satisfied in her case. She also lodged a counterclaim asking the courts to set rules on visiting rights and communication between the parents.", "16. On 14 June 2017 the Lyublinskiy District Court of Moscow ordered a forensic psychiatric, sexological and psychological assessment of the first, second and third applicants. The District Court considered it appropriate for the assessments to be carried out by experts from the Serbskiy Institute, a leading psychiatric research and care facility in Russia, and compiled a list of detailed questions.", "17. The experts of Serbskiy Institute examined in detail the applicant’s and her children’s medical and family histories and sociological profiles and conducted relevant tests and interviews.", "18. In their reports dated 24 October 2017 the experts stated in respect of the children that the information about the applicant’s gender transition would have a negative impact on them. The experts referred to the following relevant factors: the age of the children, the significance of gender identification and the role of parents in the development of such identification, societal pressure and the complexity of the family situation. They further noted that (1) currently there was a lack of research on the upbringing of children in families where one of the parents had undergone gender transition, (2) the available studies concluding that there was no negative impact were methodologically inadequate, and (3) currently there were no reliable psychotherapeutic strategies for managing the impact of a parent’s gender transition on children. The experts concluded that disclosure of the information on the father’s gender transition would induce a pronounced long-term traumatic impact on the children’s mental health.", "19. In their report dated 18 and 20 December 2017 the experts confirmed the applicant’s diagnosis and stated the following:", "“... Given the degree of manifestation of feminine characteristics in [the applicant] and her principled inability to preserve a male appearance; the insufficient consideration by her of the age-related specificities of the children’s development; her expressed intention to communicate with the children as a ‘transgender woman’ and a ‘parent’ coupled with the provision to them of information on [the gender transition]; the low degree of critical assessment of the effects of [the transition] on the children’s mental health; the developmental and individual characteristics of [her son] and the developmental characteristics of [her daughter]; and the social and psychological factors linked to gender transition ..., at the present moment contact between [the applicant] and [her children] and information on the gender transition would have a negative impact on their mental health and development. ... [T]his negative impact will be produced not by the individual and psychological profile of [the applicant] or her parenting style, but by the anticipated reaction of the children to their father’s gender transition (given the available research data on age-related aspects of gender identity development in children and the findings of the present assessment) ...”", "20. On 16 and 19 March 2018 the municipal social services issued formal opinions on the matter and concluded that the restriction of the applicant’s parental rights was reasonable given the social and individual circumstances of gender transition and the findings of the experts.", "21. On 19 March 2018 the Lyublinskiy District Court of Moscow held a hearing, examined the above expert findings and the social services’ opinions, and heard the parties and character witnesses.", "22. On the same day the District Court adopted a judgment, pursuant to Articles 65 and 73 of the Family Code (see paragraph 31 below), restricting the applicant’s parental rights and dismissing her counterclaim. The relevant part of the judgment read as follows:", "“...", "The court, in taking the decision to restrict Ms A.M.’s parental rights ..., is guided solely by the interests of the children and their psychological and mental health and does not call into question the feelings of Ms A.M. as a loving parent. [The court] considers that by itself, [Ms A.M.’s] disorder – transsexualism – is not a ground for restricting her parental rights, but the resulting changes to Ms A.M.’s personality and the disclosure of information on [the father’s gender transition] will create long-term psychotraumatic circumstances for the children and produce negative effects on their mental health and psychological development. [This position is confirmed by the expert findings.]", "...", "The court, in taking the decision to restrict Ms A.M.’s parental rights and dismiss her counterclaim ..., is guided by the established facts demonstrating that communication between Ms A.M. and her children is impossible at the present moment. At the same time, the court notes the continuous nature of family relations. As the children grow older and the level of their mental development changes, the issue of contact between [Ms A.M.] and the children should be re-examined and visiting rights reconsidered in a manner ensuring the gradual adjustment of the children to the father’s gender transition, while preserving their psychological and mental balance. At the present moment, given the age ‑ related characteristics of the children, establishing such contact is unreasonable, since it would have a negative impact on mental health and psychological development ...”", "23. The applicant sought an alternative expert assessment by a private psychiatrist, which was conducted between 25 April and 3 May 2018. The report, which was compiled after the hearing at first instance had taken place, concluded that transsexualism presented no danger to the children and could not be an obstacle to their upbringing. It stated that (1) the applicant had expressed a cautious and constructive approach in contact with the children; (2) she was not suffering from any mental disorder, and that “transsexualism” as a medical diagnosis was not included in the list of disorders precluding a person from bringing up children; and (3) there was no reliable research proving that a transgender parent raising children could have an impact on their sexual orientation or gender identity. The report asserted that the conclusions of the forensic medical assessment of 18 and 20 December 2017 were not reasoned or reliable, since the conclusions about the probable negative impact of transsexual parents on children’s development were based solely on one study, which had been highly criticised by scholars, and ignored numerous studies proving otherwise. The report concluded:", "“Therefore, it has to be admitted that the experts’ conclusions about the negative impact of information about gender transitioning on the psychological development or/and psychological health of the minors (Mr M. and Ms K.) are irrelevant and unscientific in nature and cannot serve as a basis for recognising the report on the expert examination of Ms A. as scientifically reasoned.”", "24. The applicant lodged an appeal with the Moscow City Court. During an appeal hearing, she sought the inclusion of the expert’s report of 3 May 2018 in the case file, but her request was dismissed since, according to the domestic court “nothing [had] precluded the party from providing the evidence during the first-instance proceedings”.", "25. On 16 June 2018 the applicant’s appeal was dismissed. The City Court agreed with the first-instance court’s conclusions and noted that the negative impact of the applicant’s contact with the children on their psychological health and development had been sufficiently proven, and that the applicant had not provided any evidence in support of the possibility and necessity of maintaining that contact.", "26. The applicant’s subsequent cassation appeals were dismissed on 1 February 2019 by the Moscow City Court and on 4 March 2019 by the Supreme Court of the Russian Federation.", "Further developments", "27. According to the applicant, on an unspecified date Ms N. changed her place of residence with the children and the applicant has no information about where the children now reside. At present, she is deprived of any opportunity to receive information about their lives and health.", "28. On 24 September 2019 the applicant complained to the social services, asking them to provide information about the place of residence of her children. On 23 October 2019 she received a letter in which she was informed that the social services did not have the relevant credentials for locating the children.", "29. The applicant submitted a request to the Department of Labour and Social Protection of the Population of Moscow, which also responded that it had no information regarding the children’s current place of residence." ]

[ "RELEVANT domestic law", "30. The relevant part of the Constitution of the Russian Federation states the following:", "Article 38", "“1. Maternity and childhood and the family shall be protected by the State.", "2. The care and upbringing of children shall be both the right and the obligation of parents ...”", "31. The Family Code of 1995 lays down comprehensive regulations on matters pertaining to the exercise of parental rights and in its relevant parts states the following:", "Article 65. Exercise of parental rights", "“1. The exercise of parental rights shall not be in contradiction with the children’s interests. Providing for the children’s interests shall be the primary purpose of the parents’ care.", "While exercising parental rights, parents shall not have the right to inflict harm on the physical and psychological well-being of children, or on their moral development. The methods of children’s upbringing must exclude neglectful, cruel, rude or degrading treatment, insults or exploitation of the children.", "Parents exercising parental rights to the detriment of the children’s rights and interests shall be held responsible in accordance with the procedure prescribed by law ...”", "Article 73: Restriction of parental rights", "“1. A court may, taking into account the child’s interests, decide to remove a child from the parents or one of the parents (restriction of parental rights) without depriving them of their parental rights.", "2. Restriction of parental rights shall be allowed where leaving the child with the parents or one of the parents is dangerous for the child on account of circumstances outside the control of the parents or one of the parents, [such as] a psychiatric disorder or other chronic illness, a combination of difficult circumstances, or other reasons.", "Restriction of parental rights is also possible in cases where leaving a child with the parents or one of the parents is dangerous for the child on account of their conduct, but sufficient grounds for depriving the parents or one of the parents of their parental rights have not been established. If the parents or one of the parents do not change their conduct within six months after the court decision restricting parental rights, the custody and guardianship authority shall be under an obligation to lodge an application with a court for the parents to be deprived of their parental rights. Acting in the interests of the child, the authority may lodge the application for the parents to be deprived of their parental rights before the expiry of the above-mentioned term.", "3. An application for restriction of parental rights may be lodged by close relatives of the child, as well as by bodies and agencies entrusted under law with protection of minors’ rights ... [as well as educational agencies or a prosecutor] ...”", "Article 74: Consequences of restriction of parental rights", "“1. Parents whose parental rights are restricted by a court shall lose the right to personally bring up the child, and also the right to privileges and State allowances granted to persons with children.", "2. Restriction of parental rights shall not relieve parents of the duty to support the child financially.", "3. A child whose parents or one of whose parents have had their parental rights restricted shall retain the right of ownership of any accommodation or the right of residence, and shall also retain property rights based on his or her affiliation with the parents and other relatives, including the right to inherit ...”", "Article 75: Contact with parents whose parental rights have been restricted by a court", "“Parents whose parental rights have been restricted by a court may maintain contact with the child, unless this has a negative impact on the child. Such contact shall be permitted with the consent of the custody and guardianship authority, or with the consent of the child’s guardian (trustee), of the child’s foster parents or of the administration of the facility where the child is placed.”", "Article 76: Lifting a restriction of parental rights", "“1. If the grounds on which one or both parents’ parental rights have been restricted cease to exist, the court may, at the request of one or both parents, return the child to one or both parents and lift the restrictions under Article 74 of the present Code.", "2. The court, taking into account the child’s opinion, may refuse the request if the child’s return to one or both parents is contrary to his or her interests.”", "32. On 14 November 2017 the Plenum of the Supreme Court of the Russian Federation adopted Ruling no. 44 on the practice of application by the courts of the legislation in disputes concerning the protection of rights and legal interests of a child at risk of immediate danger to life or health, as well as in cases concerning restriction or deprivation of parental rights. The relevant part of the Ruling states as follows:", "“11. When deciding on the restriction of parental rights, the court has to proceed from the nature and level of severity [of such a restriction], as well as the possible consequences for the child’s life and health, [in order to decide whether the child may] remain with his parents or one of them, and also has to consider other [relevant] circumstances ...”", "RELEVANT INTERNATIONAL MATERIAL", "United Nations documentsThe United Nations (UN) Convention on the Rights of the Child", "The United Nations (UN) Convention on the Rights of the Child", "The United Nations (UN) Convention on the Rights of the Child", "33. Article 3 of the Convention on the Rights of the Child, adopted in 1989 by the UN General Assembly and ratified by Russia in 1990, provides as follows:", "“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.", "2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.", "...”", "34. Article 9 provides, in so far as relevant, as follows:", "“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.", "...", "3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”", "UN Committee on the Rights of the Child General Comment no. 14 (2013)", "35. In its General Comment no. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3, paragraph 1), adopted on 29 May 2013 (CRC/C/GC/14), the UN Committee on the Rights of the Child stated, in particular:", "“1. Article 3, paragraph 1, of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere. Moreover, it expresses one of the fundamental values of the Convention. The Committee on the Rights of the Child (the Committee) has identified article 3, paragraph 1, as one of the four general principles of the Convention for interpreting and implementing all the rights of the child, and applies it [as] a dynamic concept that requires an assessment appropriate to the specific context ...”", "UN Human Rights Committee International Covenant on Civil and Political Rights General Comment No. 17 (1989)", "36. In its General Comment no. 17 (1989) on Article 24 of the International Covenant on Civil and Political Rights, which concerns the rights of the child, adopted on 7 April 1989, the UN Human Rights Committee stated, in so far as relevant:", "“6. ... If the marriage is dissolved, steps should be taken, keeping in view the paramount interest of the children, to give them necessary protection and, so far as is possible, to guarantee personal relations with both parents ...”", "Council of Europe documentsResolutions and recommendations by the Parliamentary Assembly", "Resolutions and recommendations by the Parliamentary Assembly", "Resolutions and recommendations by the Parliamentary Assembly", "37. In its Resolution 2048(2015) on discrimination against transgender people in Europe, the Parliamentary Assembly raised the problem of discrimination that transgender people face in Europe, and stated in particular:", "“The Parliamentary Assembly regrets that transgender people face widespread discrimination in Europe. This takes a variety of forms, including difficulties in access to work, housing and health services, and transgender people are frequently targeted by hate speech, hate crime, bullying and physical and psychological violence. Transgender people are also at particular risk of multiple discrimination. The fact that the situation of transgender people is considered as a disease by international diagnosis manuals is disrespectful of their human dignity and an additional obstacle to social inclusion.”", "38. Resolution 2048(2015) also called on member States, concerning legal gender recognition, to “ensure that the best interests of the child are a primary consideration in all decisions concerning children”.", "39. In its Resolution 2239(2018) on private and family life: achieving equality regardless of sexual orientation, the Parliamentary Assembly called on Council of Europe member States to:", "“4.5. protect the rights of parents and children in rainbow families, without discrimination based on sexual orientation or gender identity, and accordingly:", "4.5.1. in line with the case law of the European Court of Human Rights, ensure that all rights regarding parental authority, adoption by single parents and simple or second ‑ parent adoption are granted without discrimination on the grounds of sexual orientation or gender identity ...”", "Recommendations by the Committee of Ministers", "40. In its Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers, acknowledging that the child’s best interests should be the primary consideration in decisions regarding the parental responsibility for a child, recommended that member States “ensure that such decisions are taken without discrimination based on sexual orientation or gender identity”.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "41. The applicant complained under Article 8 of the Convention that the restriction of her parental rights in respect of her children had not been necessary in a democratic society and, therefore, had violated their right to respect for family life. The relevant provision of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Admissibility", "42. The present application was lodged by the applicant on her own behalf and on behalf of her children. The Government did not contest the applicant’s standing to bring the complaint on behalf of her children.", "43. The Court observes that the instant case concerns a dispute about contact rights between the applicant and the children’s mother, the latter having full custody of the children. The Court reiterates that conflicts concerning parental rights other than custody do not oppose parents and the State on the question of deprivation of custody where the State as holder of custodial rights cannot be deemed to ensure the children’s Convention rights. In cases arising out of disputes between parents, it is the parent entitled to custody who is entrusted with safeguarding the child’s interests. In these situations, the position as natural parent cannot be regarded as a sufficient basis to bring an application on behalf of a child (see Sahin v. Germany (dec.), no. 30943/96, 10 December 2000; Moog v. Germany, nos. 23280/08 and 2334/10, §§ 39-42, 6 October 2016; and K.B. and Others v. Croatia, no. 36216/13, §§ 109-10, 14 March 2017 ). Having regard to its case-law on the matter and the specific circumstances of the present case, the Court concludes that the present complaint insofar as it has been lodged on behalf of the applicant’s children must be rejected under Article 35 § 3 (a) and 4 of the Convention.", "44. In so far as this complaint has been lodged by the applicant on her own behalf, it is neither manifestly ill-founded nor inadmissible on any grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "45. The applicant contested the Government’s argument regarding the possible review of the domestic courts’ decisions in the future, pointing out in particular that (1) the domestic courts had not provided any time frame or conditions under which the applicant could seek a review of the judgment restricting her rights, and (2) neither the domestic courts nor the experts in their reports had specified why the information about her gender transition would be less harmful for the children if they received it at an older age. The applicant also pointed out that they had continuously stated in the domestic proceedings that the above-mentioned expert report had lacked scientific evidence supporting its findings and had relied exclusively on a single academic paper, which had been highly criticised in the academic community, did not concern the raising of children by a transgender parent and thus was irrelevant to the applicant’s situation. The applicant argued that the State had breached its positive obligation to maintain and restore, if necessary, the relationship between children and their biological parents, and that the interference with her family life had been neither proportionate nor necessary in a democratic society.", "(b) The Government", "46. The Government contested the applicant’s arguments and reaffirmed that the domestic courts had duly placed the children’s best interests at the heart of their decisions. The Government reiterated that according to the clinical assessment of 18 and 20 December 2017, information about the applicant’s gender transition would have a prolonged harmful effect on the children’s psychological health and development. They argued that those considerations showed that the domestic courts, when deciding on the restriction of the applicant’s parental rights, had been guided by the children’s best interests, the protection of their rights and their healthy personal development. At the same time, the Government asserted that while contact with the applicant would currently be contrary to the children’s interests, the decision on the restriction of the applicant’s parental rights could be reconsidered in the future.", "(c) The third parties", "47. The third parties Transgender Europe and ILGA Europe jointly submitted, citing multiple studies, that scientific research had conclusively disproved concerns about children adopting the gender behaviour or gender identity of their transgender parents, and about the negative impact on their developmental milestones. Studies had proved that protective processes such as family continuity and communication could help children to avoid the feeling of “loss” after their parent’s transitioning. At the same time, other variables, such as the age of the children (younger children being arguably more accepting), the relationship between the parents and social stigma, could make the adaptation process more difficult. The third parties suggested that decisions on child custody or the parental rights of a transgender parent should be based on an individualised analysis, rather than on negative perceptions and “myths” about transgender parents.", "48. The third party Human Rights Watch, relying on the Court’s case ‑ law, the General Comments of the Committee on the Right of the Child and the Human Rights Committee (see paragraphs 33-36 above) and academic research, submitted that decisions on custody and contact should take into account the child’s best interests and should afford considerable protection to children’s rights to preserve their family relations, ensuring that their enjoyment of those rights was free from arbitrary interference.", "49. A further third party, the Human Rights Centre of Ghent University, submitted that when assessing the “harm” to the child’s development due to contact with the parents, any bias had to be identified and rejected. Such bias specifically occurred when a parent’s gender transition or gender identity was in itself considered a source of likely “harm”. On that account, the reasoning for determining the child’s best interests should be subject to a scrutinised assessment “unpacking any bias that might have infiltrated that reasoning”. The third party noted that in exceptional circumstances, contact with a parent might prove to be harmful to the child, but the States had a positive obligation to assess the least restrictive means available to reach a solution that protected the child and preserved parental contact. They suggested that it was necessary to assess the measures the State authorities had taken to assist the family in mitigating any risk of harm, considering the importance of such assistance in view of the challenges trans people faced in adjusting to their role following disclosure and social gender transition.", "The Court’s assessment", "(a) General principles", "50. The relevant general principles concerning interference with the right to respect for family life have recently been summarised by the Court in Strand Lobben and Others v. Norway (cited above, § § 202-11) and in Petrov and X v. Russia (no. 23608/16, § § 98-102, 23 October 2018).", "(b) Application of the above-mentioned principles to the present case", "51. The Court finds it unequivocally established that the decisions given by the domestic courts in the proceedings instituted by Ms N. on 9 January 2017 (see paragraph 14 above) constituted an interference with the applicant’s right to respect for her family life under Article 8 § 1. It is also undisputed by the parties that those decisions were taken in accordance with the law, namely Articles 73-76 of the Family Code (see paragraph 31 above), and pursued legitimate aims, namely the “protection of health or morals” and of the “rights and freedoms” of the children. Therefore, it remains to be determined whether the interference was “necessary in a democratic society”.", "52. There is no disagreement between the parties that in the present case, the domestic courts restricted the applicant’s parental rights and deprived her of contact with her children on account of her gender transitioning and the allegedly negative effect that communication with them and information on her gender transitioning might have on the children’s psychological health and development.", "53. It is not the Court’s task to take the place of the domestic authorities in examining whether communication between the applicant and the children would be harmful for their psychological health and development, and whether she should be deprived of contact with them (see Strand Lobben and Others, cited above, § 210). However, the Court must satisfy itself that the domestic courts, when taking such a decision, conducted an in‑depth examination of the entire family situation and a whole series of other relevant factors and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, no. 47721/10, § 134, 1 August 2013).", "54. The Court observes that the domestic courts in their decisions attached significant weight to the psychiatric expert assessments of the applicant and her children (see paragraphs 18-19 above). In the reports of 24 October 2017 the experts, taking into account the results of the children’s psychological testing, their age, and the lack of psychotherapeutic practice in redressing the negative psychological consequences for children of transgender parents, reached the conclusion that information about the applicant’s transition would have a negative effect on the children’s psychological health (see paragraph 18 above). At the same time the experts noted, with reference to an academic paper, that there had been no reliable research conducted on transgender parenthood, and that this question had not been sufficiently researched. The Court notes with concern that the experts reached their unfavourable conclusion after they themselves explicitly acknowledged that there was no reliable scientific evidence on this issue. The report of 18 and 20 December 2017 (see paragraph 19 above) similarly lacked references to scientific research supporting the experts’ findings. The Court further notes that all expert reports lacked any indication of how the information about the applicant’s gender transition represented a risk to her children’s psychological health and development or any indication of how that risk could have been mitigated.", "55. The Court takes note of the applicant’s argument that the expert assessment reports referred only to a single academic paper that had been “highly criticised” in the academic community, and also notes the third parties’ reference to the existence of multiple studies concluding that fears about the negative impact of a parent’s gender transition on a child’s development are groundless (see paragraph 47 above). However, it is not the Court’s task to engage in the assessment of the reliability and relevance of the existing scientific research on transgender parenting. The point for examination here is whether the domestic courts, bearing in mind the best interests of the children, made a balanced and reasonable assessment of the respective interests of each person, relying on an in‑depth examination of the entire family situation and of the relevant factors.", "56. The available international material, cited in paragraphs 33‑39 above, is unanimous that domestic courts deciding on the restriction of parental rights and contact should aim to (1) keep children together with their parents and, in the event of their separation, maintain direct contact between them on a regular basis, (2) take the child’s best interests as a primary consideration, and (3) assess the entire family situation through close and individualised scrutiny. The third parties’ submissions also support these principles (see paragraphs 47-49 above), highlighting in particular the need to avoid reliance on negative perceptions and prejudice about transgender parenthood.", "57. Turning to the case at hand, it is apparent that the Russian courts’ judgments (see paragraphs 22, 25, and 26 above) fell short of the above requirements. In taking the decision to restrict the applicant’s parental rights and contact with her children, they considered certain evidence (see paragraph 21 above), but relied predominantly on the findings of the expert assessments without close scrutiny of those findings in the specific circumstances of the entire family situation (see paragraph 22 above). While there is no dispute that the findings of expert assessments will in any comparable situation be of relevance and significance to judicial decision ‑ making, it is equally beyond dispute that the courts should not forgo scrutiny of the reliability and quality of such findings. The self ‑ acknowledged lack of scientific research supporting the experts’ conclusions and the apparent lack of an explanation as to how the applicant’s contact with her children could negatively affect their psychological health should have alerted the domestic courts in the present case and should have called for close scrutiny of the reliability and quality of the findings submitted to them (compare X v. Latvia [GC], no. 27853/09, §§ 102 and 106, ECHR 2013, and P.V. v. Spain, no. 35159/09, § 36, 30 November 2010 ). While recognising that the domestic courts had taken into account the opinion of the mother, her fears of the possible negative effect of the applicant’s gender transition on the children, the conflicts between the parents, and the findings of social services, the Court cannot disregard the fact that the courts have placed the above findings of the experts in the heart of their decisions, in the absence of any demonstratable harm to the children. Thus, the domestic courts in making the decision had failed to conduct an in‑depth examination of the entire family situation, and did not give enough weight to the rights of the applicant.", "58. It is well established that measures totally depriving an applicant of his or her family life with the child are inconsistent with the aim of reuniting them and should “only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child’s best interests” (see, for instance, Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III, and Aune v. Norway, no. 52502/07, § 66, 28 October 2010).", "59. The domestic courts in the present case, upon the request of the children’s mother, applied the most restrictive measure possible and completely deprived the applicant of any contact with her children. Given that the passage of time can have irremediable consequences for relations between the child and the parent with whom that child does not live (see, among other authorities, S.H. v. Italy, no. 52557/14, § 42, 13 October 2015), they should have been exceptionally cautious in resorting to that measure.", "60. The Court notes that the third parties in their submissions referred to the existence of measures and good practices which could be used to assist the children whose parents underwent gender transition (see paragraphs 47 and 49 above). However, the Court does not find it appropriate to contemplate on the existence of less restrictive means or to endorse any of them, since, as has been established above, the domestic courts failed to demonstrate that there was an appropriate basis for a restriction. In the absence of any demonstrably harmful effect of contact between the applicant with her children, it is not necessary to speculate as to whether a particular restriction might have been appropriate in the event that such potential or real harm had been established. Similarly, the Court does not find it necessary to consider whether the possibility of reviewing the restriction, as mentioned by the domestic courts, provided an effective avenue for re-establishing contact between the applicant and her children or for ensuring the children’s gradual adjustment to their changing family situation.", "61. In the light of the foregoing, the Court considers that the domestic courts failed to make a balanced and reasonable assessment of the respective interests on the basis of an in‑depth examination of the entire family situation and of other relevant factors. The Court thus concludes that the restriction of the applicant’s parental rights and of her contact with her children was not “necessary in a democratic society”.", "62. There has accordingly been a violation of Article 8 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "63. The applicant further complained under Article 14 in conjunction with Article 8 of the Convention that the restriction of her parental rights had been discriminatory, since her gender transition had served as the sole ground for that restriction. The relevant provision of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Admissibility", "64. The Court has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. Article 14 has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among many other authorities, Molla Sali v. Greece [GC], no. 20452/14, § 123, 19 December 2018, with further references).", "65. The Court has found that the domestic decisions restricting the applicant’s parental rights and depriving her of contact with her children amounted to an interference with her right to respect for her family life under the first paragraph of Article 8 (see paragraph 58 above). It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case.", "66. The Court further notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "67. The applicant maintained that she had been discriminated against on the basis of her gender identity and the fact that she had gone through gender transition. She further stated that, contrary to the Government’s arguments, the restriction of her parental rights with reference to the allegedly harmful effect of her gender transition on her children had been based exclusively on the fact of the gender transition itself. Therefore, this constituted a difference in treatment based on the applicant’s gender identity.", "(b) The Government", "68. The Government submitted that the applicant’s gender transitioning in itself was not a reason for restricting her parental rights. They stated that the main reasons for restricting her contact with her children were (1) the changes in the applicant’s personality and (2) the psychotraumatic situation that would be created for her children by the information on her transitioning, followed by the prolonged harmful effect on their personal development and psychological health.", "(c) The third parties", "69. The third parties Transgender Europe and ILGA Europe jointly submitted that there was widespread discrimination in child custody disputes. Manifest discrimination had recently developed into a nexus test that linked the child’s best interests to fears and stereotypes about transgender parenthood. Thus, transgender parents’ rights were systematically restricted with reference to harmful effects such as contagion of gender non-conformity, the parent’s exercise of the supposedly volitional “choice” to transition, and the child’s potential anxiety around transition and loss. However, transgender people should not have to face discriminatory consequences after choosing to live in accordance with their gender identity or because they had undergone gender-affirming medical treatment, and decisions on access rights for transgender parents should be based on an individualised analysis of the factors crucial to a child’s well-being.", "70. The third party Human Rights Watch, referring to the available research, stated that being a transgender person had no bearing on a person’s parental qualities. Therefore, stigma and societal prejudice could not justify the denial of transgender people’s right to maintain contact with their children. In the third party’s opinion it was improper to restrict a parent’s contact with children simply because the parent was a transgender person.", "71. The other third party, the Human Rights Centre of Ghent University, argued that a limitation of the rights of transgender parents to contact with their children on the ground of their gender transition discriminated against transgender persons in comparison with cisgender persons. It further noted that the use of negative stereotypes about gender dysphoria as a justification for limiting contact between parents and their children raised issues concerning the State’s positive obligations under Article 14 of the Convention, as the State should take measures to counteract the social exclusion of transgender persons from their social environment, including their children.", "The Court’s assessment", "(a) General principles", "72. The relevant general principles established under Article 14 of the Convention have been reiterated in Hämäläinen v. Finland ([GC], no. 37359/09, §§ 107-09, ECHR 2014) and in Molla Sali (cited above, §§ 133 ‑ 37).", "73. The Court has previously established that the prohibition of discrimination under Article 14 of the Convention duly covers questions related to gender identity (see P.V. v. Spain, cited above, § 30).", "(b) Application of the above-mentioned principles to the present case", "74. The Court notes that the applicant’s gender identity and the fact that she had undergone gender transition featured prominently in the reasoning of all the domestic decisions concerning the restriction of her parental rights (see paragraphs 22, 25, and 26 above).", "75. Despite the precautions taken by the domestic courts in stating that their decisions were not based on the applicant’s transition, but on the potential harmful effect on her children, the inescapable conclusion is that her gender identity was consistently at the centre of the deliberations concerning her and was omnipresent at every stage of the judicial proceedings (compare E.B. v. France [GC], no. 43546/02, §§ 88-89, 22 January 2008, and Cînța v. Romania, no. 3891/19, §§ 68-69, 18 February 2020). The Court concludes that the influence of the applicant’s gender identity on the assessment of her claim has been established and was a decisive factor leading to the decision to restrict her contact with her children.", "76. The applicant has therefore been treated differently from other parents who also seek contact with their estranged children, but whose gender identity matches their sex assigned at birth. Regard must be had to the aim behind that difference in treatment and, if the aim was legitimate, to whether the different treatment was justified (see E.B. v. France, cited above, § 90). In a different case the Court held that no reasonable relationship of proportionality existed between the means employed and the aim pursued when a difference of a parent’s treatment was based on considerations regarding the applicant’s sexual orientation, a distinction which is not acceptable under the Convention (compare Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 36, ECHR 1999 ‑ IX).", "77. According to the established domestic practice reflected in the interpretative guidelines of the Supreme Court (see paragraph 32 above), the Russian courts deciding on the restriction of parental rights should, first of all, assess the possible danger to the child, the nature and severity of such a restriction, and the consequences it might have for the child’s health and development. Moreover, the courts are under a duty to consider “other [relevant] circumstances”, which arguably might include factors such as the parent’s personal characteristics, his or her relationship with the child, the parent’s prior conduct and behaviour towards the child, and the parent’s living conditions and financial resources.", "78. The Court observes that, contrary to the above-mentioned established practice, in the present case the domestic courts did not conduct their assessment with the required scrutiny. They did not engage in an examination of the possible danger to the applicant’s children, the nature and severity of the restriction of parental rights, the consequences it might have for a child’s health and development, or any other relevant circumstances. In the absence of such relevant considerations the domestic courts based their decisions on the alleged possible negative effect of the applicant’s gender transition on her children. The reasons put forward by the authorities and the evidence presented in support of their position cannot be regarded as convincing and sufficient (see paragraph 57 above) to prove the existence of any possible harm to the children’s development and to justify the restriction of the applicant’s parental rights.", "79. The Court concludes that in restricting the applicant’s parental rights and contact with her children without doing a proper evaluation of the possible harm to the applicant’s children, the domestic courts relied on her gender transition, singled her out on the ground of her status as transgender person and made a distinction which was not warranted in the light of the existing Convention standards.", "80. The Court does not discern any reason to doubt that the domestic authorities pursued a legitimate aim of the protection of the rights of children in these proceedings. However, in absence of any demonstrably convincing and sufficient reasons for the difference in treatment, the Court finds it impossible to conclude that a reasonable relationship of proportionality existed between the means employed and the aim pursued. Thus the impugned decision amounted to discrimination (see E.B. v. France, cited above, § 90, and Salgueiro da Silva Mouta, cited above, § 36).", "81. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 8.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "82. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "83. In respect of non-pecuniary damage, the applicant submitted that in the event that the Court were to find a violation of their rights, it should award just satisfaction in accordance with its case-law.", "84. The Government argued that no compensation should be awarded to the applicant under this head, since their rights had not been violated.", "85. The Court considers that the applicant sustained non‑pecuniary damage in connection with the violations it has found of her rights under Articles 8 and 14 of the Convention, and that such damage cannot be compensated for solely by the finding of a violation. Accordingly, it awards the applicant 9,800 euros (EUR) under this head.", "Costs and expenses", "86. The applicant claimed 11,700 Russian roubles (RUB) (approximately EUR 130) for postal expenses and RUB 84,600 (EUR 940) for the costs of a forensic medical examination conducted in the domestic proceedings. The applicant further claimed EUR 6,600 for legal costs incurred in the domestic proceedings and the proceedings before the Court.", "87. The Government submitted that the applicant’s claims were neither justified nor reasonable and argued that this claim should be dismissed on account of their failure to submit a copy of an agreement with their lawyers.", "88. It is well established that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Merabishvili v. Georgia [GC], no. 72508/13, § 370, 28 November 2017 ). The Court observes that the material in the case file does not include any contracts, receipts or other documents which legally bind the applicant to cover the amounts claimed by their representatives. The only documents provided are two billing invoices, indicating the lawyers’ professional fees, which are signed only by the respective lawyers. These documents do not bear the applicant’s signature and there is nothing in the case file to prove that the applicant consented to pay the amounts requested, that she was legally bound to do so or, in fact, that she was made aware of the amounts of those claims (compare V.K. v. Russia, no. 9139/08, §§ 48-53, 4 April 2017 ). The Court also notes that under Russian law the invoices provided would not be enforceable without a proof of existence of a contract between the applicant and her lawyers. Accordingly, the Court rejects the claim for legal costs.", "89. As regards the claim for postal expenses and the costs of a forensic medical examination conducted in the domestic proceedings, the Court notes that these claims are supported by the documents submitted and that the sums claimed were actually incurred. Therefore, the Court awards the applicant EUR 1,070 under this head.", "Default interest", "90. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1969 and lives in the Paris region of France. He was represented by Ms A. Stach, a lawyer practising in Szczecin.", "3. The Government were represented by their Agent, Mr J. Sobczak of the Ministry of Foreign Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background to the case", "5. At birth the applicant was registered as female. He later underwent gender reassignment.", "6. On 6 April 1992 the Warsaw District Court gave a decision ordering that an annotation be made to the applicant’s birth certificate to indicate that his sex had changed from female to male and name had changed from X to Y. The relevant annotation was duly made.", "7. On 28 December 1993 the applicant married K. in a civil ceremony.", "8. On 18 August 2001 their daughter A. was born in France. Her French birth certificate indicates the applicant as her father and K. as her mother.", "Administrative proceedingS for removal of THE annotation from the birth certificate", "9. On 22 August 2005 the applicant’s lawyer asked the Prudnik Civil Registry Office ( Urząd Stanu Cywilnego ) to remove the reference to the Warsaw District Court’s decision of 6 April 1992 from the birth certificate.", "10. On 22 September 2005 the head of the Prudnik Registry Office ( Kierownik Urzędu Stanu Cywilnego ) refused the applicant’s request on the grounds that, under section 21 of the Civil Status Records Act ( prawo o aktach stanu cywilnego – “the 1986 Act”), any events occurring after a birth certificate had been drawn up had to be included in that certificate in the form of a “marginal annotation” ( wzmianka marginesowa ).", "11. On 8 November 2005 the Opole Governor declared that decision null and void on formal grounds. The Governor’s decision was subsequently overturned by the Minister of the Interior on 21 August 2006.", "12. On 29 September 2006 the Opole Governor gave a decision on the merits and upheld the decision of 22 September 2005, refusing to remove the annotation about the change of gender and first name. The Governor observed that only annotations not provided for by law or in breach of personal rights could be removed.", "13. On 26 February 2007 the Opole Regional Administrative Court dismissed an appeal by the applicant, referring to the reasons given by the Governor. It held that a marginal annotation about the applicant’s gender of origin and change of name could not be considered to be in breach of his personal rights.", "14. On 16 July 2008 the Supreme Administrative Court dismissed the applicant’s cassation appeal.", "Proceedings for a new birth certificate", "15. On 5 September 2011 the applicant lodged a request with the Warsaw District Court to be issued a new birth certificate. He relied on sections 48 and 49 of the 1986 Act relating to the drawing up of new birth certificates following adoption (see paragraph 28 below).", "16. On 20 October 2011 the court dismissed the applicant’s request. The court held that, pursuant to sections 48 and 49 of the 1986 Act, a new birth certificate could only be drawn up in the event of adoption of a child. In addition, it noted that the civil courts had jurisdiction to invalidate, correct and recognise the contents of a civil status document. Since the present case did not concern any of those situations, the request had to be dismissed.", "17. The applicant appealed. He referred to the sensitive situation of transgender people, submitting that the authorities should have applied sections 48 and 49 of the 1986 Act by analogy.", "18. On 12 February 2013 the Warsaw Regional Court dismissed his appeal. The court upheld the reasoning of the District Court. With reference to the applicant’s submissions that the first-instance court should have applied sections 48 and 49 of the 1986 Act by analogy and drawn up a new birth certificate, the Regional Court held that the provisions concerning civil status could not be applied by analogy. Sections 48 and 49 of the 1986 Act listed very specific situations in which a new birth certificate could be issued. A full birth certificate reflected the situation at the time of a person’s birth. A subsequent change of gender could not be a reason to invalidate that birth certificate and draw up a new one. The court further noted that the applicant’s birth certificate had been amended to reflect his gender reassignment.", "19. The applicant lodged a cassation appeal, relying, in particular, on the provisions of the Polish Constitution (Articles 32 and 47), Articles 8 and 14 of the Convention and the Court’s case-law.", "20. On 28 May 2014 the Supreme Court dismissed his cassation appeal. The court considered, referring to the 1986 Act, that following gender reassignment it was not possible to draw up a new birth certificate. Any changes had to be indicated as an annotation on the existing birth certificate. The Supreme Court also noted that Parliament had been working on a bill on gender recognition.", "Proceedings concerning foster care", "21. On 23 March 2010 a district court in the Paris region granted custody of K.’s three year old niece - A.L. to the applicant’s wife. The applicant submitted that A.L. lived with him and his family." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Domestic law and practiceConstitutional provisions", "Constitutional provisions", "Constitutional provisions", "22. The Constitution of the Republic of Poland of 1997 contains the following provisions relating to non-discrimination, equality of men and women and the right to privacy.", "Article 32", "“1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.", "2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.”", "Article 33", "“1. Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland.", "...”", "Article 47", "“Everyone shall have the right to legal protection of his [her] private and family life, of his [her] honour and good reputation and to make decisions about his [her] private life.”", "The Code of Civil Procedure", "23. Article 189 of the Code of Civil Procedure (“CCP”) provides as follows:", "“A plaintiff may request the court to establish the existence or non-existence of a legal relationship or right, if he or she has a legal interest therein.”", "The Law on Civil Status RecordsGeneral provisions", "General provisions", "General provisions", "24. The procedure for making entries in the Polish civil status register, as in force at the material time, was laid down in the Act on Civil Status Records ( Prawo o aktach stanu cywilnego ) of 29 September 1986 (“the 1986 Act”).", "Section 21", "“(1) If, after the drawing up of a civil status record, events occur affecting its content or validity, the changes resulting therefrom shall be entered in the record in the form of an additional annotation.", "(2) The basis for entering the information referred to in subsection 1 are final judicial decisions, final [administrative] decisions, extracts of civil status records and other documents having an impact on the content or validity of the record.", "3) Below the text of the civil status record shall be footnotes containing information on other civil status records relating to the same person.”", "Birth certificates", "25. The relevant provisions relating to the drawing up, issuing of copies and amendment of birth certificates read as follows:", "Section 40", "“(1) A birth certificate is drawn up on the basis of a written notification of the child’s birth issued by a doctor, midwife or healthcare facility;", "(2) The birth certificate shall include:", "1) the surname, forename(s) and sex of the child;", "...”", "Section 79", "“Civil status records may be used to issue:", "1) full and short extracts of civil status records;", "... ”", "Section 80", "“A full copy reproduces verbatim the content of the civil status record, including all additional annotations ( wzmianki dodatkowe ); the content of footnotes ( przypiski ) shall be given only at the request of the person concerned.”", "Section 81", "“A short extract of a civil status record states its content, taking into account the additional annotations and omitting any deleted words, paragraphs and sentences.”", "Section 82", "“A short extract [of a civil status record] shall include the following information:", "1) a copy of the birth certificate - the surname and forename(s), place and date of birth and the forenames and surnames of the child’s parents;", "...”", "Section 83", "“1. Copies of civil status records and the certificates referred to in section 79 shall be issued at the request of a court or another State authority, the person whose civil status has been established in the record, his or her ascendant, descendant, sibling, spouse or legal representative.", "2. Copies of civil status records and certificates confirming entries in civil status records or the lack thereof may also be issued at the request of persons other than those specified in subsection 1 who demonstrate a legal interest therein, and at the request of a social organisation, if justified by the statutory aims of that organisation and if in the public interest. A certificate of loss or destruction of a civil status record may also be issued at the request of other interested persons.”", "26. In the majority of official situations, only a short extract of the birth certificate is required (for example when concluding a civil marriage, obtaining a death certificate or applying for an identity document or passport). A full copy of the birth certificate is required, for example, in the adoption process, when applying for another nationality or to change a name or surname, in complex inheritance cases or in criminal proceedings if the court has doubts as to previous convictions.", "27. After the annotation is made to the birth certificate, the person concerned may apply for a new personal registration number (PESEL) and new identity documents.", "Adoption and civil status records", "28. The relevant provisions relating to the issuing of new birth certificates in the event of adoption read as follows:", "Section 48", "“1 In the event of a decision on adoption to which the parents of the child have consented before a guardianship court without naming the adopter [ adoptio plenissima ], a new birth certificate shall be drawn up for the adoptee; in this certificate the adopters shall be entered as parents.", "...", "3. Upon the drawing up of a new birth certificate, an additional annotation shall be recorded in the existing birth certificate of the adoptee; the existing birth certificate of the adoptee shall not be disclosed and no copies of it shall be issued, unless requested by the court in connection with a case in which it deems it necessary.", "4. Once the adoptee has reached the age of majority, he or she may request access to the part of the civil status record relating to the existing birth record.”", "Section 49", "“1. In the event of a decision on adoption in the manner specified in Article 121 of the Family and Custody Code [ adoptio plena ], a new birth certificate may be drawn up for the adoptee, in which the adopters shall be entered as parents, if the guardianship court has so decided. The provisions of [section] 47(2) to (5) shall apply accordingly.", "1a. The guardianship court shall rule on the drawing up of a new birth certificate at the request of the adopter, with the consent of the adoptee [if he or she] has reached the age of thirteen, or at the request of the adoptee with the consent of the adopter. The provisions of Article 118 § 2 and 3 of the Family and Custody Code shall apply accordingly.", "2. Upon the drawing up of a new birth certificate, an additional annotation shall be recorded in the existing birth certificate of the adoptee; the existing birth certificate of the adoptee shall not be disclosed and no copies of it shall be issued, unless requested by the court in connection with establishing the origin of the adoptee, recognition or termination of the adoption relationship, or in connection with other matters in which the court deems it necessary.", "2a. Once the adoptee has reached the age of majority, he or she may request access to the part of the civil status record relating to the existing birth record.", "3. In the event of termination of the adoption relationship, the adoptee’s new birth certificate shall be invalidated by the court in non-contentious proceedings; the additional reference to the drawing up of the new birth certificate entered in the adoptee’s existing birth certificate shall also be invalidated.”", "The 2014 Act", "29. On 1 March 2015 the new Act on Civil Status Records of 28 November 2014 (“the 2014 Act”) entered into force. It contains similar provisions as regards the issuing of copies and amendment of birth certificates (sections 44(1) to (3), 45(1) and 48(1)) and the drawing up of new birth certificates in the event of adoption (sections 71 and 73).", "Supreme Court’s case-lawDecision of 22 March 1991", "Decision of 22 March 1991", "Decision of 22 March 1991", "30. The Supreme Court’s decision ( postanowienie ) of 22 March 1991, given in case no. III CRN 28/91, includes guidelines on the procedures for the legal recognition of persons who have undergone gender reassignment surgery. The Supreme Court found that recognition of gender reassignment (made by means of a declaratory judgment) did not have retroactive effect and, as such, could not lead to rectification ( sprostowanie ) of a person’s civil status record. However, a final judgment recognising sex reassignment could serve as a basis for making an additional entry ( wpis dodatkowy ) in the civil status register.", "Resolution of 22 September 1995", "31. On 22 September 1995 the Supreme Court issued a resolution (III CZP 118/95) confirming that it was possible to lodge a claim under Article 189 of the CCP to recognise the sexual identity of a transgender person. In such cases, the parents of the person requesting gender reassignment should be defendants. If the parents were dead or their whereabouts unknown, the court should appoint a guardian.", "32. This reasoning was subsequently confirmed in a number of the Supreme Court’s judgments.", "Legislative initiatives", "33. On 23 July 2015 Parliament passed the Gender Recognition Bill ( Ustawa o uzgodnieniu płci ). However, in October 2015 it was vetoed by the President. It had been designed to facilitate the process of gender recognition.", "International materialCommissioner for Human Rights of the Council of Europe", "Commissioner for Human Rights of the Council of Europe", "Commissioner for Human Rights of the Council of Europe", "34. On 31 August 2010 the Commissioner for Human Rights of the Council of Europe published a Human Rights Comment entitled “Forced divorce and sterilisation – a reality for many transgender persons”, in which he stated, in particular, as follows:", "“All countries need to develop expeditious and transparent procedures for changing the name and gender of a transgender person on official documents, in accordance with the case-law of the European Court of Human Rights.", "In 2002, in Goodwin v UK, the Strasbourg Court’s Grand Chamber stressed that in the twenty first century the rights of transgender persons should be effectively protected by states. They should have the same right to personal development and to physical and moral security enjoyed by others in society. ...”", "Committee of Ministers of the Council of Europe", "35. On 31 March 2010 the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity. Paragraph 21 states that:", "“[m]ember [S]tates should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way; member [S]tates should also ensure, where appropriate, the corresponding recognition and changes by non-state actors with respect to key documents, such as educational or work certificates.”", "Parliamentary Assembly of the Council of Europe", "36. On 22 April 2015 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 2048 (2015) entitled “Discrimination against transgender people in Europe”. The member States were called upon, in particular, to:", "“6.2.1 develop quick, transparent and accessible procedures, based on self ‑ determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents; make these procedures available for all people who seek to use them, irrespective of age, medical status, financial situation or police record;”", "THE LAW", "Preliminary objections", "37. The Government made several preliminary objections. They argued that the application was incompatible ratione personae, ratione loci and temporis with the provisions of the Convention. They further submitted that the applicant had not complied with the six-month rule laid down in Article 35 § 1 or with the rule of exhaustion of domestic remedies. Lastly, they stressed that the applicant had not suffered a significant disadvantage.", "Victim statusThe parties", "The parties", "The parties", "38. The Government argued that the applicant could not be considered a “victim” for the purposes of Article 34 of the Convention. They referred to the fact that the short extract of his birth certificate and his identity documents indicated his new name and reassigned sex. Moreover, the applicant had not demonstrated that he had actually applied for French citizenship or for adoption, or that the disclosure of his full birth certificate had led to a breach of his right to respect for his private life.", "39. The applicant did not submit any comments on this objection.", "The Court’s assessment", "40. The Court observes that the issue of whether or not the applicant’s private life was affected by the fact that his full birth certificate includes reference to the sex assigned at birth is inseparably linked to its assessment of whether the requirements of Article 8 of the Convention have been satisfied in the particular circumstances of the case.", "41. It accordingly joins the Government’s objection of incompatibility ratione personae to the merits of the case.", "Lack of jurisdictionThe parties", "The parties", "The parties", "42. The Government submitted that the application was incompatible ratione personae and ratione loci with the provisions of the Convention. In the circumstances of the present case, Poland could not be held responsible for the acts of the French authorities if the applicant were to apply for adoption in France or for French citizenship. The case related to prospective future events to be carried out in France and was therefore outside Polish jurisdiction.", "43. The applicant did not comment on this objection.", "The Court’s assessment", "44. The Court observes that the applicant is a Polish national who complained that the Polish authorities had failed to comply with their duty to guarantee to him full legal recognition of his sexual identity. He referred to administrative and judicial proceedings conducted in Poland and complained about the content of his Polish civil status documents. In the light of the above, the Court considers that the Government’s objection of incompatibility ratione loci and ratione personae must be dismissed.", "Ratione temporisThe parties", "The parties", "The parties", "45. The Government submitted that the application was incompatible ratione temporis with the provisions of the Convention. They referred to the fact that on 6 April 1992 the Warsaw District Court had issued a decision ordering that the applicant’s birth records be amended to indicate that the sex assigned at birth had changed from female to male and his name had changed from X to Y. That ruling had become final before the entry into force of the Convention in respect of Poland.", "46. The applicant did not submit any comments.", "The Court’s assessment", "47. The Court considers that the factual grounds for the applicant’s application to the Court are the domestic courts’ decisions issued between 2011 and 2014 dismissing his application for a new birth certificate. Consequently, and in so far as the applicant’s complaints are directed against those decisions, the Court has temporal jurisdiction to entertain the application.", "48. The Government’s objection of incompatibility ratione temporis must accordingly be rejected.", "Non-exhaustion of domestic remediesThe parties", "The parties", "The parties", "49. The Government argued that the applicant had failed to exhaust the available domestic remedies. In particular, they pointed out that he should have lodged a constitutional complaint with the Constitutional Court challenging the compatibility of sections 48 and 49 read in conjunction with section 40(2)(1) of the 1986 Act as to their compatibility with Articles 32 §§ 1 and 2 (prohibition of discrimination), Article 33 § 1 (equality of men and women) and Article 47 (protection of private life) of the Polish Constitution (see paragraphs 22, 25 and 28 above).", "50. The applicant did not comment on this objection.", "The Court’s assessment", "51. The Court reiterates that it has already held that a constitutional complaint in Poland is an effective remedy for the purposes of Article 35 § 1 of the Convention only in a situation in which the alleged violation of constitutional rights and freedoms has resulted from the application of a legal provision which can reasonably be questioned as unconstitutional. Furthermore, such a provision has to constitute the direct legal basis for the individual decision in respect of which the violation is alleged. Thus, the constitutional complaint procedure cannot serve as an effective remedy if the alleged violation has resulted only from the erroneous application or interpretation of a statutory provision which, in its content, is not unconstitutional (see, most recently, Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, § 198, 7 May 2021).", "52. In the present case, the alleged violation originated in the decisions of the domestic courts refusing to apply mutatis mutandis sections 48 and 49 of the 1986 Act to the applicant’s situation. The Court points to the established case-law of the Constitutional Court, which provides that constitutional complaints based solely on an allegedly erroneous interpretation of a legal provision are excluded from its jurisdiction unless an applicant contests a provision as understood in well-established and long-standing case law of the courts; as a result, such a complaint cannot be deemed an effective remedy within the meaning of Article 35 § 1 of the Convention. The domestic courts refused to interpret the domestic provisions as requested by the applicant. Therefore, a constitutional complaint cannot be regarded as an effective remedy in the applicant’s case (see, for example, Palusiński v. Poland (dec.), no. 62414/00, 3 October 2006, and Długołęcki v. Poland, no. 23806/03, § 25, 24 February 2009).", "53. For these reasons, the Government’s objection of non ‑ exhaustion of domestic remedies must be dismissed.", "Six-month time-limitThe parties", "The parties", "The parties", "54. The Government also submitted that the applicant had failed to comply with the six-month time-limit. They argued that his application to the Court had been lodged on 18 November 2014, even though the question relating to the annotation on the birth certificate had already been resolved by the Supreme Administrative Court on 16 July 2008.", "55. The applicant did not submit any comments.", "The Court’s assessment", "56. The Court cannot accept the Government’s arguments. It is clear from the applicant’s submissions that his complaint concerns an ongoing breach of his right to private and family life. Following unsuccessful proceedings before the administrative courts relating to the removal of the annotation from the birth certificate, the applicant instituted another set of proceedings, this time before the civil courts, to be issued with a new one (see paragraph 15 above). The proceedings were terminated on 28 May 2014, that is, less than six months before his application was lodged with the Court. In the circumstances of the present case, there is no indication that those proceedings had no prospects of success or could not have afforded him redress.", "57. Accordingly, the Court rejects the Government’s objection as to failure to comply with the six-month rule.", "Non-significant disadvantageThe parties", "The parties", "The parties", "58. Lastly, the Government argued that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. They stressed that the applicant’s sex assigned at birth was visible only in the full birth certificate, which was not public and was only accessible in exceptional situations to a limited number of people. The applicant had failed to demonstrate that he had actually been adversely affected by that situation. Moreover, his complaints had been thoroughly examined at national level in administrative and judicial proceedings.", "59. The applicant did not comment on the Government’s objection.", "The Court’s assessment", "60. The Court observes that the question of whether the applicant has suffered a “significant disadvantage” in the instant case is closely linked to the complaint about the alleged breach of his privacy and the authorities’ duty to guarantee full legal recognition of his sexual identity. It therefore considers that this particular objection raised by the Government should be joined to the merits of the case.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "61. The applicant alleged a breach of his private and family life on account of the fact that his full birth certificate included reference to the sex assigned at birth. He relied on Article 8 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to respect for his private ... life.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Admissibility", "62. The Court notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe applicant", "The applicant", "The applicant", "63. The applicant submitted that his inability to fully amend his civil status records had affected his private life. He maintained that he was afraid that disclosure of the information relating to his sex assigned at birth would have an impact on his family and private life. In his view, this situation amounted to mental suffering.", "64. In the application form the applicant argued that he wished to institute proceedings for acquisition of French nationality and for adoption of his wife’s niece (see paragraph 21 above). However, for the purpose of these proceedings he would have to provide a full copy of his birth certificate which indicated the sex assigned at birth. Thus, he could not institute such proceedings out of fear that he would be exposed to the hostile reaction of society and might suffer humiliating experiences.", "The Government", "65. The Government submitted that Polish law and the courts had implemented appropriate measures to have gender reassignment legally recognised and the relevant data changed in birth records (by an appropriate annotation). Consequently, the respondent State had fulfilled its positive obligation to ensure a real, effective and available procedure for altering civil status records.", "66. The Government further stressed that the change of data in birth certificates had full effect under private and public law. The short extract of the birth certificate indicated the applicant’s new name and reassigned gender. In most official situations, only an extract of the birth certificate was required (for example when concluding a civil marriage, obtaining a death certificate or applying for an identity document, passport or PESEL).", "67. In the Government’s view, the obligation to entirely remove all records relating to the gender assigned at birth could not be considered a positive obligation under Article 8 of the Convention. Moreover, there was no such obligation under any international documents binding Poland or the Recommendation of the Committee of Ministers CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity (see paragraph 35 above).", "68. The Government also submitted that most European countries applied the procedure of adding marginal annotations to birth certificates indicating the change of gender and possibly the change of first name. Such a practice existed, for example, in Belgium, Luxembourg and France. However, in this sensitive area there was no European consensus and therefore the margin of appreciation granted to the domestic authorities should have been wide.", "69. Lastly, they argued that keeping a reference to the gender assigned at birth in the full birth certificate was important for the person concerned. Having this annotation meant that it was possible, when necessary, to prove certain facts predating the gender reassignment, particularly in relation to education, kinship, inheritance, acquisition of property and so forth.", "The third-party interveners", "(a) Helsinki Foundation for Human Rights", "70. The Helsinki Foundation for Human Rights (“HFHR”) submitted that there were no statutory regulations explicitly setting out the gender recognition procedure for a transgender person in Poland. The possibility of correcting the designation of a person’s gender was acknowledged through judicial interpretation. The domestic courts accepted that the modification of a person’s gender could be recognised in civil proceedings through a declaratory action under Article 189 of the Code of Civil Procedure. HFHR referred to the procedure established by the Supreme Court in its decision of 22 March 1991 (case no. III CRN 28/91) (see paragraph 30 above).", "71. HFHR further noted that the proposed bill vetoed in 2015 (see paragraph 33 above) had included a provision stating that a court ruling granting a gender recognition request was a basis for drawing up a new birth certificate for the person concerned. It had also provided that a full copy of the birth certificate would be issued only at the request of a court, the person concerned or his or her biological or adopted children if that had been necessary to confirm family ties.", "(b) European Centre for Law and Justice", "72. The European Centre for Law and Justice (“ECLJ”) submitted that a birth certificate, which attested a person’s birth, contained objective characteristics about that person, including his or her filiation, and served as a reference for his or her entire life. This dual function was reflected in the two types of Polish civil status documents. A short extract of the birth certificate contained relevant and up to date information and thus constituted proof and a means of identifying the person. A full copy of the birth certificate was a copy of the original document drawn up at the time of birth, which included annotations made during the person’s life. The practice of making annotations to an original birth certificate was in force in other European countries. Even member States which had modified the conditions and procedures relating to gender reassignment had kept the practice of making annotations to the original birth certificate (for example, France, Belgium and Luxembourg).", "The Court’s assessment", "(a) Preliminary remarks", "73. The Court has previously held that while the essential object of Article 8 is to protect individuals against arbitrary interference by public authorities, it may also impose on a State certain positive obligations to ensure effective respect for the rights protected by Article 8. This Article imposes on States a positive obligation to secure to their citizens the right to effective respect for their physical and psychological integrity. This obligation may involve the adoption of specific measures, including the provision of an effective and accessible means of protecting the right to respect for private life. Such measures may include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of these measures in different contexts (see Hämäläinen v. Finland [GC], no. 37359/09, §§ 62 and 63, ECHR 2014).", "74. In the present case, the Court notes that the applicant did not specifically complain about the lack of a regulatory framework for legal gender recognition in Poland (compare, for example, X v. the former Yugoslav Republic of Macedonia, no. 29683/16, 17 January 2019, and Y.T. v. Bulgaria, no. 41701/16, 9 July 2020). Rather, the crux of the case is the alleged breach of the applicant’s privacy rights given that the information about his gender reassignment is included in his full birth certificate. Consequently, the question to be determined is whether respect for the applicant’s private life and/or family life entails a positive obligation on the respondent State to provide an effective and accessible procedure allowing the applicant to obtain a birth certificate without any reference to the gender assigned at birth.", "(b) Compliance with the State’s positive obligations", "75. The relevant Convention principles are summarised in the Court’s judgment in the case of Hämäläinen (cited above, §§ 65-68).", "76. The Court reiterates in particular that in implementing their positive obligation under Article 8 the States enjoy a certain margin of appreciation. A number of factors must be taken into account when determining the breadth of that margin. In the context of “private life” the Court has considered that where a particularly important facet of an individual’s existence or identity is at stake the margin allowed to the State will be restricted (see, for example, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90 ECHR 2002 ‑ VI, and Hämäläinen, cited above, § 67 ).", "77. Turning to the facts of the present case the Court notes that the applicant was registered at birth as female. He underwent gender reassignment, lodged a claim with the domestic courts and had his name and gender changed in the official documents. The relevant annotation was made to the civil status register and he was subsequently issued with new identity documents (see paragraphs 5 and 6 above).", "78. The Court further observes that the applicant later lawfully married K. and continues to live in society as a male person (see paragraphs 7 and 8 above). While the applicant’s full birth certificate includes a marginal annotation about the gender reassignment, the short extract of the birth certificate indicates only his new name and reassigned gender. In nearly all everyday situations the applicant is able to establish his identity by means of identification documents or the short extract of the birth certificate (see paragraphs 26, 27 and 66 above). The Court acknowledges the applicant’s feelings that the marginal annotation to his birth certificate is demeaning and causes him mental suffering (see paragraph 63 above and compare Christine Goodwin, cited above, § 77). However, it does not appear that in his daily life the applicant is required to reveal these intimate details of his private life and that the inconveniences complained of are sufficiently serious.", "79. Furthermore, as is apparent from domestic law and as submitted by the parties, full birth records are not publicly accessible. Only a limited number of persons and entities may access the register of births and obtain full copies of birth certificates (see paragraph 25 above). In addition, the applicant himself would seldom be required to provide a full copy of the birth certificate (in relation to proceedings for adoption, application for citizenship elsewhere, possibly in the context of criminal proceedings; see paragraph 26 above). In this connection, the Court is mindful of the historical nature of the birth record system and that, in view of the public interest, reference to the gender assigned at birth, might, in certain situations, be necessary to prove certain facts predating the sex reassignment, even though this could cause the person concerned to experience some distress.", "80. Notwithstanding all the above considerations, the Court finds that the applicant did not demonstrate that he had suffered any sufficiently serious negative consequences or difficulties resulting from the fact that the sex assigned at birth is still visible in the form of an annotation on his full birth certificate. He failed to provide any details that he had been affected by that situation and to what extent.", "81. The Court cannot rule out the possibility that the applicant might potentially face some inconvenience on account of the fact that his full birth records contain a reference to the gender assigned to him at birth. Even so, such a potential risk of adverse consequences is not capable of rendering the current Polish system deficient from the point of view of the State’s positive obligation.", "82. In conclusion, given the particular circumstances of the present case, the Court accepts that the Polish authorities struck a fair balance between the different interests at stake, while remaining within the wide margin of appreciation available to them.", "83. There has accordingly been no violation of Article 8 of the Convention.", "84. In view of this conclusion, the Court considers it unnecessary to rule on the Government’s preliminary objections relating to the question of victim status and significant disadvantage (see, mutatis mutandis, Kurt v. Austria [GC], no. 62903/15, § 213, 15 June 2021 and paragraphs 41 and 60 above).", "ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "85. The applicant complained that he had been discriminated against, contrary to Article 14 of the Convention. He compared his situation to that of adopted children where a new birth certificate was issued. Article 14 of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Admissibility", "86. The Court notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "87. It is undisputed in the present case that the applicant’s situation falls within the notion of “private life” and “family life” within the meaning of Article 8 of the Convention. Consequently, Article 14 of the Convention, taken in conjunction with Article 8, is applicable.", "88. The Court further observes that the applicant’s complaint under Article 14 of the Convention concerns his inability to obtain a new birth certificate without any information about the gender reassignment. The applicant compared his situation to that of adopted children, who are issued a new birth certificate in the event of full adoption (see paragraph 28 above). For the Court, these situations are not sufficiently similar to be compared to each other. The applicant cannot therefore claim to be in the same situation as the other category of persons relied on (compare Hämäläinen, cited above, §§ 107-13).", "89. There has accordingly been no violation of Article 14 of the Convention." ]

[ "13. Mr. Jeffrey Dudgeon, who is 35 years of age, is a shipping clerk resident in Belfast, Northern Ireland.", "Mr. Dudgeon is a homosexual and his complaints are directed primarily against the existence in Northern Ireland of laws which have the effect of making certain homosexual acts between consenting adult males criminal offences.", "A. The relevant law in Northern Ireland", "14. The relevant provisions currently in force in Northern Ireland are contained in the Offences against the Person Act 1861 (\"the 1861 Act\"), the Criminal Law Amendment Act 1885 (\"the 1855 Act\") and the common law.", "Under sections 61 and 62 of the 1861 Act, committing and attempting to commit buggery are made offences punishable with maximum sentences of life imprisonment and ten years ’ imprisonment, respectively. Buggery consists of sexual intercourse per anum by a man with a man or a woman, or per anum or per vaginam by a man or a woman with an animal.", "By section 11 of the 1885 Act, it is an offence, punishable with a maximum of two years ’ imprisonment, for any male person, in public or in private, to commit an act of \"gross indecency\" with another male. \"Gross indecency\" is not statutorily defined but relates to any act involving sexual indecency between male persons; according to the evidence submitted to the Wolfenden Committee (see paragraph 17 below), it usually takes the form of mutual masturbation, inter-crural contact or oral-genital contact. At common law, an attempt to commit an offence is itself an offence and, accordingly, it is an offence to attempt to commit an act proscribed by section 11 of the 1885 Act. An attempt is in theory punishable in Northern Ireland by an unlimited sentence (but as to this, see paragraph 31 below).", "Consent is no defence to any of these offences and no distinction regarding age is made in the text of the Acts.", "An account of how the law is applied in practice is given below at paragraphs 29 to 31.", "15. Acts of homosexuality between females are not, and have never been, criminal offences, although the offence of indecent assault may be committed by one woman on another under the age of 17.", "As regards heterosexual relations, it is an offence, subject to certain exceptions, for a man to have sexual intercourse with a girl under the age of 17. Until 1950 the age of consent of a girl to sexual intercourse was 16 in both England and Wales and in Northern Ireland, but by legislation introduced in that year the age of consent was increased to 17 in Northern Ireland. While in relation to the corresponding offence in England and Wales it is a defence for a man under the age of 24 to show that he believed with reasonable cause the girl to be over 16 years of age, no such defence is available under Northern Ireland law.", "B. The law and reform of the law in the rest of the United Kingdom", "16. The 1861 and 1885 Acts were passed by the United Kingdom Parliament. When enacted, they applied to England and Wales, to all Ireland, then unpartitioned and an integral part of the United Kingdom, and also, in the case of the 1885 Act, to Scotland.", "1. England and Wales", "17. In England and Wales the current law on male homosexual acts is contained in the Sexual Offences Act 1956 (\"the 1956 Act\") as amended by the Sexual Offences Act 1967 (\"the 1967 Act\").", "The 1956 Act, an Act consolidating the existing statute law, made it an offence for any person to commit buggery with another person or an animal (section 12) and an offence for a man to commit an act of \"gross indecency\" with another man (section 13).", "The 1967 Act, which was introduced into Parliament as a Private Member ’ s Bill, was passed to give effect to the recommendations concerning homosexuality made in 1957 in the report of the Departmental Committee on Homosexual Offences and Prostitution established under the chairmanship of Sir John Wolfenden (the\" Wolfenden Committee\" and\" Wolfenden report\"). The Wolfenden Committee regarded the function of the criminal law in this field as", "\"to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official, or economic dependence\",", "but not", "\"to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined\".", "The Wolfenden Committee concluded that homosexual behaviour between consenting adults in private was part of the \"realm of private morality and immorality which is, in brief and crude terms, not the law ’ s business\" and should no longer be criminal.", "The 1967 Act qualified sections 12 and 13 of the 1956 Act by providing that, subject to certain exceptions concerning mental patients, members of the armed forces and merchant seamen, buggery and acts of gross indecency in private between consenting males aged 21 years or over should not be criminal offences. It remains a crime to commit a homosexual act, of the kind referred to in these sections, with a person aged less than 21 in any circumstances.", "The age of majority for certain purposes, including capacity to marry without parental consent and to enter into contractual relations, was reduced from 21 to 18 by the Family Law Reform Act 1969. The voting age and the minimum age for jury service were likewise reduced to 18 by the Representation of the People Act 1969 and the Criminal Justice Act 1972, respectively.", "In 1977, the House of Lords rejected a Bill aimed at reducing the age of consent for private homosexual act to 18. Subsequently, in a report published in April 1981, a committee established by the Home Office, namely the Policy Advisory Committee on Sexual Offences, recommended that the minimum age for homosexual relations between males should be reduced to 18. A minority of five members favoured a reduction to 16.", "2. Scotland", "18. When the applicant lodged his complaint in 1976, the relevant law applicable was substantially similar to that currently in force in Northern Ireland. Section 7 of the Sexual Offences ( Scotland ) Act 1976, a consolidating provision re-enacting section 11 of the 1885 Act, provided for the offence of gross indecency; the offence of sodomy existed at common law. However, successive Lord Advocates had stated in Parliament that their policy was not to prosecute in respect of acts which would not have been punishable if the 1967 Act had applied in Scotland. The Criminal Justice ( Scotland ) Act 1980 (\"the 1980 Act\") formally brought Scottish law into line with that of England and Wales. As in the case of the 1967 Act, the change in the law originated in amendments introduced in Parliament by a Private Member.", "C. Constitutional position of Northern Ireland", "19. Under an Act of the United Kingdom Parliament, the Government of Ireland Act 1920, a separate Parliament for Northern Ireland was established with power to legislate on all matters devolved by that Act, including criminal and social law. An executive known as the Government of Northern Ireland was also established with Ministers responsible for the different areas of the devolved powers. By convention, during the life of the Northern Ireland Parliament (1921-9172) the United Kingdom Parliament rarely, if ever, legislated for Northern Ireland in respect of the devolved matters - in particular social matters - falling within the former Parliament ’ s legislative competence.", "20. In March 1972, the Northern Ireland Parliament was prorogued and Northern Ireland was made subject to \"direct rule\" from Westminster (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 10 and 20-21, par. 19 and 49). Since that date, except for a period of five months in 1974 when certain legislative and executive powers were devolved to a Northern Ireland Assembly and Executive, legislation for Northern Ireland in all fields has been the responsibility of the United Kingdom Parliament. There are 12 members of the United Kingdom House of Commons, out of a total of 635, who represent constituencies in Northern Ireland.", "Under the provisions currently in force, power is conferred on Her Majesty to legislate for Northern Ireland by Order in Council. Save where there are reasons of urgency, no recommendation may be made to Her Majesty to make an Order in Council under these provisions unless a draft of the Order has been approved by each House of Parliament. It is the responsibility of the Government to prepare a draft Order and to lay it before Parliament for approval. A draft can only be approved or rejected in toto by Parliament, but not amended. The function of the Queen in Council in making an Order once it has been approved by Parliament is purely formal. In practice, much legislation for Northern Ireland is effected in this form rather than by means of an Act of Parliament.", "D. Proposals for reform in Northern Ireland", "21. No measures comparable to the 1967 Act were ever introduced into the Northern Ireland Parliament either by the Government of Northern Ireland or by any Private Member.", "22. In July 1976, following the failure of the Northern Ireland Constitutional Convention to work out a satisfactory form of devolved government for Northern Ireland, the then Secretary of State for Northern Ireland announced in Parliament that the United Kingdom Government would thenceforth by looking closely at the need for legislation in fields which it had previously been thought appropriate to leave to a future devolved government, in particular with a view to bringing Northern Ireland law more closely into harmony with laws in other parts of the country. He cited homosexuality and divorce as possible areas for action. However, recognising the difficulties about such subjects in Northern Ireland, he indicated that he would welcome the views of the local people, including those of the Standing Advisory Commission on Human Rights (\"the Advisory Commission\") and of Members of Parliament representing Northern Ireland constituencies.", "23. The Advisory Commission, which is an independent statutory body, was accordingly invited to consider the matter. As regards homosexual offences, the Advisory Commission received evidence from a number of persons and organisations, religious and secular. No representations were made by the Roman Catholic Church in Northern Ireland or by any of the 12 Northern Ireland Members of the United Kingdom House of Commons.", "The Advisory Commission published its report in April 1977. The Advisory Commission concluded that most people did not regard it as satisfactory to retain the existing differences in the law with regard to homosexuality and that few only would be strongly opposed to changes bringing Northern Ireland law into conformity with that in England and Wales. On the other hand, it did not consider that there would be support for legislation which went further, in particular by lowering the age of consent. Its recommendations were that the law of Northern Ireland should be brought into line with the 1967 Act, but that future amendments to the 1967 Act should not automatically apply to Northern Ireland.", "24. On 27 July 1978, the Government published a proposal for a draft Homosexual Offences ( Northern Ireland ) Order 1978, the effect of which would have been to bring Northern Ireland law on the matter broadly into line with that of England and Wales. In particular, homosexual acts in private between two consenting male adults over the age of 21 would no longer have been punishable.", "In a foreword to the proposal, the responsible Minister stated that \"the Government had always recognised that homosexuality is an issue about which some people in Northern Ireland hold strong conscientious or religious opinions\". He summarised the main arguments for and against reform as follows:", "\"In brief, there are two differing viewpoints. One, based on an interpretation of religious principles, holds that homosexual acts under any circumstances are immoral and that the criminal law should be used, by treating them as crimes, to enforce moral behaviour. The other view distinguishes between, on the one hand that area of private morality within which a homosexual individual can (as a matter of civil liberty) exercise his private right of conscience and, on the other hand, the area of public concern where the State ought and must use the law for the protection of society and in particular for the protection of children, those who are mentally retarded and others who are incapable of valid personal consent.", "I have during my discussions with religious and other groups heard both these viewpoints expressed with sincerity and I understand the convictions that underlie both points of view. There are in addition other considerations which must be taken into account. For example it has been pointed out that the present law is difficult to enforce, that fear of exposure can make a homosexual particularly vulnerable to blackmail and that this fear of exposure can cause unhappiness not only for the homosexual himself but also for his family and friends.", "While recognising these differing viewpoints I believe we should not overlook the common ground. Most people will agree that the young must be given special protection; and most people will also agree that law should be capable of being enforced. Moreover those who are against reform have compassion and respect for individual rights just as much as those in favour of reform have concern for the welfare of society. For the individuals in society, as for Government, there is thus a difficult balance of judgment to be arrived at.\"", "Public comment on the proposed amendment to the law was invited.", "25. The numerous comments received by the Government in response to their invitation, during and after the formal period of consultation, revealed a substantial division of opinion. On a simple count of heads, there was a large majority of individuals and institutions against the proposal for a draft Order.", "Those opposed to reform included a number of senior judges, District Councils, Orange Lodges and other organisations, generally of a religious character and in some cases engaged in youth activities. A petition to \"Save Ulster from Sodomy\" organised by the Democratic Unionist Party led by Mr. Ian Paisley, a Member of the United Kingdom House of Commons, collected nearly 70.000 signatures. The strongest opposition came from certain religious groups. In particular, the Roman Catholic Bishops saw the proposal as an invitation to Northern Irish society to change radically its moral code in a manner liable to bring about more serious problems than anything attributable to the present law. The Roman Catholic Bishops argued that such a change in the law would lead to a further decline in moral standards and to a climate of moral laxity which would endanger and put undesirable pressures on those most vulnerable, namely the young. Similarly, the Presbyterian Church in Ireland, whilst understanding the arguments for the change, made the point that the removal from the purview of the criminal law of private homosexual acts between consenting adult males might be taken by the public as an implicit licence if not approval for such practices and as a change in public policy towards a further relaxation of moral standards.", "The strongest support for change came from organisations representing homosexuals and social work agencies. They claimed that the existing law was unnecessary and that it created hardship and distress for a substantial minority of persons affected by it. It was urged that the sphere of morality should be kept distinct from that of the criminal law and that considerations of the personal freedom of the individual should in such matters be paramount. For its part, the Standing Committee of the General Synod of the Church of Ireland accepted that homosexual acts in private between consenting adults aged 21 and over should be removed from the realm of criminal offence, but in amplification commented that this did not mean that the Church considered homosexuality to be an acceptable norm.", "Press reports indicated that most of the political formations had expressed favourable views. However, none of the 12 Northern Ireland Members of Parliament publicly supported the proposed reform and several of them openly opposed it. An opinion poll conducted in Northern Ireland in January 1978 indicated that the people interviewed were evenly divided on the global question of the desirability of reforming the law on divorce and homosexuality so as to bring it into line with that of England and Wales.", "26. On 2 July 1979, the then Secretary of State for Northern Ireland, in announcing to Parliament that the Government did not intend to pursue the proposed reform, stated:", "\"Consultation showed that strong views are held in Northern Ireland, both for and against in the existing law. Although it is not possible to say with certainty what is the feeling of the majority of people in the province, it is clear that is substantial body of opinion there (embracing a wide range of religious as well as political opinion) is opposed to the proposed change ... [T]he Government have [also] taken into account ... the fact that legislation on an issue such as the one dealt with in the draft order has traditionally been a matter for the initiative of a Private Member rather than for Government. At present, therefore, the Government propose to take no further action ..., but we would be prepared to reconsider the matter if there were any developments in the future which were relevant.\"", "27. In its annual report for 197 9-1980, the Advisory Commission reiterated its view that law should be reformed. It believed that there was a danger that the volume of opposition might be exaggerated.", "28. Since the Northern Ireland Parliament was prorogued in 1972 (see paragraph 20 above), there has been no initiative of any kind for legislation to amend the 1861 and 1885 Acts from any of the mainstream political organisations or movements in Northern Ireland.", "E. Enforcement of the law in Northern Ireland", "29. In accordance with the general law, anyone, including a private person, may bring a prosecution for a homosexual offence, subject to the Director of Public Prosecutions ’ power to assume the conduct of the proceedings and, if he thinks fit, discontinue them. The evidence as to prosecutions for homosexual offences between 1972 and 1981 reveals that none has been brought by a private person during that time.", "30. During the period from January 1972 to October 1980 there were 62 prosecutions for homosexual offences in Northern Ireland. The large majority of these cases involved minors that is persons under 18; a few involved persons aged 18 to 21 or mental patients or prisoners. So far as the Government are aware from investigation of the records, no one was prosecuted in Northern Ireland during the period in question for an act which would clearly not have been an offence if committed in England or Wales. There is, however, no stated policy not to prosecute in respect of such acts. As was explained to the Court by the Government, instructions operative within the office of the Director of Public Prosecutions reserve the decision on whether to prosecute in each individual case to the Director personally, in consultation with the Attorney General, the sole criterion being whether, on all the facts and circumstances of that case, a prosecution would be in the public interest.", "31. According to the Government, the maximum sentences prescribed by the 1861 and 1885 Acts are appropriate only for the most grave instances of the relevant offence and in practice no court would ever contemplate imposing the maximum sentence for offences committed between consenting parties, whether in private or in public. Furthermore, although liable to an unlimited sentence, a man convicted of an attempt to commit gross indecency would in practice never receive a sentence greater than that appropriate if the offence had been completed; in general, the sentence would be significantly less. In all cases of homosexual offences the actual penalty imposed will depend on the particular circumstances.", "F. The personal circumstances of the applicant", "32. The applicant has, on his own evidence, been consciously homosexual from the age of 14. For some time he and others have been conducting a campaign aimed at bringing the law in Northern Ireland into line with that in force in England and Wales and, if possible, achieving a minimum age of consent lower than 21 years.", "33. On 21 January 1976, the police went to Mr. Dudgeon ’ s address to execute a warrant under the Misuse of Drugs Act 1971. During the search of the house a quantity of cannabis was found which subsequently led to another person being charged with drug offences. Personal papers, including correspondence and diaries, belonging to the applicant in which were described homosexual activities were also found and seized. As a result, he was asked to go to a police station where for about four and a half hours he was questioned, on the basis of these papers, about his sexual life. The police investigation file was sent to the Director of Prosecutions. It was considered with a view to instituting proceedings for the offence of gross indecency between males. The Director, in consultation with the Attorney General, decided that it would not be in the public interest for proceedings to be brought. Mr. Dudgeon was so informed in February 1977 and his papers, with annotations marked over them, were returned to him." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "34. In his application, lodged with the Commission on 22 May 1976, Mr. Dudgeon claimed that:", "- the existence, in the criminal law in force in Northern Ireland, of various offences capable of relating to male homosexual conduct and the police investigation in January 1976 constituted an unjustified interference with his right to respect for his private life, in breach of Article 8 (art. 8) of the Convention;", "- he had suffered discrimination, within the meaning of Article 14 (art. 14) of the Convention, on grounds of sex, sexuality and residence.", "The applicant also claimed compensation.", "35. By decision of 3 March 1978, the Commission declared admissible the applicant ’ s complaints concerning the laws in force in Northern Ireland prohibiting homosexual acts between males (or attempts at such acts), but inadmissible as being manifestly ill-founded his complaints concerning the existence in Northern Ireland of certain common law offences.", "In its report adopted on 13 March 1980 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion that:", "- the legal prohibition of private consensual homosexual acts involving male persons under 21 years of age was not in breach of the applicant ’ s rights either under Article 8 (art. 8) (eight votes to two) or under Article 14 read in conjunction with Article 8 (art. 14+8) (eight votes to one, with one abstention);", "- the legal prohibition of such acts between male persons over 21 years of age breached the applicant ’ s right to respect for his private life under Article 8 (art. 8) (nine votes to one);", "- it was not necessary to examine the question whether the last-mentioned prohibition also violated Article 14 read in conjunction with Article 8 (art. 14+8) (nine votes to one).", "The report contains one separate opinion.", "FINAL SUBMISSIONS MADE TO THE COURT", "36. At the hearing on 23 April 1981, the Government maintained the submissions set out in their memorial, whereby they requested the Court:", "\"(1) With regard to Article 8 (art. 8)", "To decide and declare that the present laws in Northern Ireland relating to homosexual acts do not give rise to a breach of Article 8 (art. 8) of the Convention, in that the laws are necessary in a democratic society for the protection of morals and for the protection of the rights of other for the purposes of paragraph 2 of Article 8 (art. 8-2).", "(2) With regard to Article 14, in conjunction with Article 8 (art. 14+8)", "( i ) To decide and declare that the facts disclose no breach of Article 14, read in conjunction with Article 8 (art. 14+8) of the Convention;", "alternatively, if and in so far as a breach of Article 8 (art. 8) of the Convention is found", "(ii) To decide and declare that it is unnecessary to examine the question whether the laws in Northern Ireland relating to homosexual acts give rise to a separate breach of Article 14, read in conjunction with Article 8 (art. 14+8) of the Convention\".", "AS TO THE LAW", "I. THE ALLEGED BREACH OF ARTICLE 8 (art. 8)", "A. Introduction", "37. The applicant complained that under the law in force in Northern Ireland he is liable to criminal prosecution on account of his homosexual conduct and that he has experienced fear, suffering and psychological distress directly caused by the very existence of the laws in question - including fear of harassment and blackmail. He further complained that, following the search of his house in January 1976, he was questioned by the police about certain homosexual activities and that personal papers belonging to him were seized during the search and not returned until more than a year later.", "He alleged that, in breach of Article 8 (art. 8) of the Convention, he has thereby suffered, and continues to suffer, an unjustified interference with his right to respect for his private life.", "38. Article 8 (art. 8) provides as follows:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "39. Although it is not homosexuality itself which is prohibited but the particular acts of gross indecency between males and buggery (see paragraph 14 above), there can be no doubt but that male homosexual practices whose prohibition is the subject of the applicant ’ s complaints come within the scope of the offences punishable under the impugned legislation; it is on that basis that the case has been argued by the Government, the applicant and the Commission. Furthermore, the offences are committed whether the act takes place in public or in private, whatever the age or relationship of the participants involved, and whether or not the participants are consenting. It is evident from Mr. Dudgeon ’ s submissions, however, that his complaint was in essence directed against the fact that homosexual acts which he might commit in private with other males capable of valid consent are criminal offences under the law of Northern Ireland.", "B. The existence of an interference with an Article 8 (art. 8) right", "40. The Commission saw no reason to doubt the general truth of the applicant ’ s allegations concerning the fear and distress that he has suffered in consequence of the existence of the laws in question. The Commission unanimously concluded that \"the legislation complained of interferes with the applicant ’ s right to respect for his private life guaranteed by Article 8 par. 1 (art. 8-1), in so far as it prohibits homosexual acts committed in private between consenting males\" (see paragraphs 94 and 97 of the Commission ’ s report).", "The Government, without conceding the point, did not dispute that Mr. Dudgeon is directly affected by the laws and entitled to claim to be a \"victim\" thereof under Article 25 (art. 25) of the Convention. Nor did the Government contest the Commission ’ s above-quoted conclusion.", "41. The Court sees no reason to differ from the views of the Commission: the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant ’ s right to respect for his private life (which includes his sexual life) within the meaning of Article 8 par. 1 (art. 8-1). In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life (see, mutatis mutandis, the Marckx judgment of 13 June 1979, Series A no. 31, p. 13, par. 27): either he respects the law and refrains from engaging – even in private with consenting male partners - in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.", "It cannot be said that the law in question is a dead letter in this sphere. It was, and still is, applied so as to prosecute persons with regard to private consensual homosexual acts involving males under 21 years of age (see paragraph 30 above). Although no proceedings seem to have been brought in recent years with regard to such acts involving only males over 21 years of age, apart from mental patients, there is no stated policy on the part of the authorities not to enforce the law in this respect (ibid). Furthermore, apart from prosecution by the Director of Public Prosecution, there always remains the possibility of a private prosecution (see paragraph 29 above).", "Moreover, the police investigation in January 1976 was, in relation to the legislation in question, a specific measure of implementation - albeit short of actual prosecution - which directly affected the applicant in the enjoyment of his right to respect for his private life (see paragraph 33 above). As such, it showed that the threat hanging over him was real.", "C. The existence of a justification for the interference found by the Court", "42. In the Government ’ s submission, the law in Northern Ireland relating to homosexual acts does not give rise to a breach of Article 8 (art. 8), in that it is justified by the terms of paragraph 2 of the Article (art. 8-2). This contention was disputed by both the applicant and the Commission.", "43. An interference with the exercise of an Article 8 (art. 8) right will not be compatible with paragraph 2 (art. 8-2) unless it is \"in accordance with the law\", has an aim or aims that is or are legitimate under that paragraph and is \"necessary in a democratic society\" for the aforesaid aim or aims (see, mutatis, mutandis, the Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 24, par. 59).", "44. It has not been contested that the first of these three conditions was met. As the Commission pointed out in paragraph 99 of its report, the interference is plainly \"in accordance with the law\" since it results from the existence of certain provisions in the 1861 and 1885 Acts and the common law (see paragraph 14 above).", "45. It next falls to be determined whether the interference is aimed at \"the protection of morals\" or \"the protection of the rights and freedoms of others\", the two purposes relied on by the Government.", "46. The 1861 and 1885 Acts were passed in order to enforce the then prevailing conception of sexual morality. Originally they applied to England and Wales, to all Ireland, then unpartitioned, and also, in the case of the 1885 Act, to Scotland (see paragraph 16 above). In recent years the scope of the legislation has been restricted in England and Wales (with the 1967 Act) and subsequently in Scotland (with the 1980 Act): with certain exceptions it is no longer a criminal offence for two consenting males over 21 years of age to commit homosexual acts in private (see paragraphs 17 and 18 above). In Northern Ireland, in contrast, the law has remained unchanged. The decision announced in July 1979 to take no further action in relation to the proposal to amend the existing law was, the Court accepts, prompted by what the United Kingdom Government judged to be the strength of feeling in Northern Ireland against the proposed change, and in particular the strength of the view that it would be seriously damaging to the moral fabric of Northern Irish society (see paragraphs 25 and 26 above). This being so, the general aim pursued by the legislation remains the protection of morals in the sense of moral standards obtaining in Northern Ireland.", "47. Both the Commission and the Government took the view that, in so far as the legislation seeks to safeguard young persons from undesirable and harmful pressures and attentions, it is also aimed at \"the protection of the rights and freedoms of others\". The Court recognises that one of the purposes of the legislation is to afford safeguards for vulnerable members of society, such as the young, against the consequences of homosexual practices. However, it is somewhat artificial in this context to draw a rigid distinction between \"protection of the rights and freedoms of others\" and \"protection of morals\". The latter may imply safeguarding the moral ethos or moral standards of a society as a whole (see paragraph 108 of the Commission ’ s report), but may also, as the Government pointed out, cover protection of the moral interests and welfare of a particular section of society, for example schoolchildren (see the Handyside judgment of 7 December 1976, Series A no. 24, p. 25, par. 52 in fine - in relation to Article 10 par. 2 (art. 10-2) of the Convention). Thus, \"protection of the rights and freedoms of others\", when meaning the safeguarding of the moral interests and welfare of certain individuals or classes of individuals who are in need of special protection for reasons such as lack of maturity, mental disability or state of dependence, amounts to one aspect of \"protection of morals\" (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 34, par. 56). The Court will therefore take account of the two aims on this basis.", "48. As the Commission rightly observed in its report (at paragraph 101), the cardinal issue arising under Article 8 (art. 8) in this case is to what extent, if at all, the maintenance in force of the legislation is \"necessary in a democratic society\" for these aims.", "49. There can be no denial that some degree of regulation of male homosexual conduct, as indeed of other forms of sexual conduct, by means of the criminal law can be justified as \"necessary in a democratic society\". The overall function served by the criminal law in this field is, in the words of the Wolfenden report (see paragraph 17 above), \"to preserve public order and decency [and] to protect the citizen from what is offensive or injurious\". Furthermore, this necessity for some degree of control may even extend to consensual acts committed in private, notably where there is call - to quote the Wolfenden report once more - \"to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence\". In practice there is legislation on the matter in all the member States of the Council of Europe, but what distinguishes the law in Northern Ireland from that existing in the great majority of the member States is that it prohibits generally gross indecency between males and buggery whatever the circumstances. It being accepted that some form of legislation is \"necessary\" to protect particular sections of society as well as the moral ethos of society as a whole, the question in the present case is whether the contested provisions of the law of Northern Ireland and their enforcement remain within the bounds of what, in a democratic society, may be regarded as necessary in order to accomplish those aims.", "50. A number of principles relevant to the assessment of the \"necessity\", \"in a democratic society\", of a measure taken in furtherance of an aim that is legitimate under the Convention have been stated by the Court in previous judgments.", "51. Firstly, \"necessary\" in this context does not have the flexibility of such expressions as \"useful\", \"reasonable\", or \"desirable\", but implies the existence of a \"pressing social need\" for the interference in question (see the above-mentioned Handyside judgment, p. 22, par. 48).", "52. In the second place, it is for the national authorities to make the initial assessment of the pressing social need in each case; accordingly, a margin of appreciation is left to them (ibid). However, their decision remains subject to review by the Court (ibid., p. 23, par. 49).", "As was illustrated by the Sunday Times judgment, the scope of the margin of appreciation is not identical in respect of each of the aims justifying restrictions on a right (p. 36, par. 59). The Government inferred from the Handyside judgment that the margin of appreciation will be more extensive where the protection of morals is in issue. It is an indisputable fact, as the Court stated in the Handyside judgment, that \"the view taken ... of the requirements of morals varies from time to time and from place to place, especially in our era,\" and that \"by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements\" (p. 22, par. 48).", "However, not only the nature of the aim of the restriction but also the nature of the activities involved will affect the scope of the margin of appreciation. The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of paragraph 2 of Article 8 (art. 8-2).", "53. Finally, in Article 8 (art. 8) as in several other Articles of the Convention, the notion of \"necessity\" is linked to that of a \"democratic society\". According to the Court ’ s case-law, a restriction on a Convention right cannot be regarded as \"necessary in a democratic society\" - two hallmarks of which are tolerance and broadmindedness - unless, amongst other things, it is proportionate to the legitimate aim pursued (see the above-mentioned Handyside judgment, p. 23, par. 49, and the above-mentioned Young, James and Webster judgment, p. 25, par. 63).", "54. The Court ’ s task is to determine on the basis of the aforesaid principles whether the reasons purporting to justify the \"interference\" in question are relevant and sufficient under Article 8 par. 2 (art. 8-2) (see the above-mentioned Handyside judgment, pp. 23-24, par. 50). The Court is not concerned with making any value-judgment as to the morality of homosexual relations between adult males.", "55. It is convenient to begin by examining the reasons set out by the Government in their arguments contesting the Commission ’ s conclusion that the penal prohibition of private consensual homosexual acts involving male persons over 21 years of age is not justified under Article 8 par. 2 (art. 8-2) (see paragraph 35 above).", "56. In the first place, the Government drew attention to what they described as profound differences of attitude and public opinion between Northern Ireland and Great Britain in relation to questions of morality. Northern Irish society was said to be more conservative and to place greater emphasis on religious factors, as was illustrated by more restrictive laws even in the field of heterosexual conduct (see paragraph 15 above).", "Although the applicant qualified this account of the facts as grossly exaggerated, the Court acknowledges that such differences do exist to a certain extent and are a relevant factor. As the Government and the Commission both emphasised, in assessing the requirements of the protection of morals in Northern Ireland, the contested measures must be seen in the context of Northern Irish society.", "The fact that similar measures are not considered necessary in other parts of the United Kingdom or in other member States of the Council of Europe does not mean that they cannot be necessary in Northern Ireland (see, mutatis mutandis, the above-mentioned Sunday Times judgment, pp. 37-38, par. 61; cf. also the above-mentioned Handyside judgment, pp. 26-28, par. 54 and 57). Where there are disparate cultural communities residing within the same State, it may well be that different requirement, both moral and social, will face the governing authorities.", "57. As the Government correctly submitted, it follows that the moral climate in Northern Ireland in sexual matters, in particular as evidenced by the opposition to the proposed legislative change, is one of the matters which the national authorities may legitimately take into account in exercising their discretion. There is, the Court accepts, a strong body of opposition stemming from a genuine and sincere conviction shared by a large number of responsible members of the Northern Irish community that a change in the law would be seriously damaging to the moral fabric of society (see paragraph 25 above). This opposition reflects - as do in another way the recommendations made in 1977 by the Advisory Commission (see paragraph 23 above - a view both of the requirements of morals in Northern Ireland and of the measures thought within the community to be necessary to preserve prevailing moral standards.", "Whether this point of view be right or wrong, and although it may be out of line with current attitudes in other communities, its existence among an important sector of Northern Irish society is certainly relevant for the purposes of Article 8 par. 2 (art. 8-2).", "58. The Government argued that this conclusion is further strengthened by the special constitutional circumstances of Northern Ireland (described above at paragraphs 19 and 20). In the period between 1921 (when the Northern Ireland Parliament first met) and 1972 (when it last sat), legislation in the social field was regarded as a devolved matter within the exclusive domain of that Parliament. As a result of the introduction of \"direct rule\" from Westminster, the United Kingdom Government, it was said, had a special responsibility to take full account of the wishes of the people of Northern Ireland before legislating on such matters.", "In the present circumstances of direct rule, the need for caution and for sensitivity to public opinion in Northern Ireland is evident. However, the Court does not consider it conclusive in assessing the \"necessity\", for the purposes of the Convention, of maintaining the impugned legislation that the decision was taken, not by the former Northern Ireland Government and Parliament, but by the United Kingdom authorities during what they hope to be an interim period of direct rule.", "59. Without any doubt, faced with these various considerations, the United Kingdom Government acted carefully and in good faith; what is more, they made every effort to arrive at a balanced judgment between the differing viewpoints before reaching the conclusion that such a substantial body of opinion in Northern Ireland was opposed to a change in the law that no further action should be taken (see, for example, paragraphs 24 and 26 above). Nevertheless, this cannot of itself be decisive as to the necessity for the interference with the applicant ’ s private life resulting from the measures being challenged (see the above-mentioned Sunday Times judgment, p. 36, par. 59). Notwithstanding the margin of appreciation left to the national authorities, it is for the Court to make the final evaluation as to whether the reasons it has found to be relevant were sufficient in the circumstances, in particular whether the interference complained of was proportionate to the social need claimed for it (see paragraph 53 above).", "60. The Government right affected by the impugned legislation protects an essentially private manifestation of the human personality (see paragraph 52, third sub-paragraph, above).", "As compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member States (see, mutatis mutandis, the above-mentioned Marckx judgment, p. 19, par. 41, and the Tyrer judgment of 25 April 1978, Series A no. 26, pp. 15-16, par. 31). In Northern Ireland itself, the authorities have refrained in recent years from enforcing the law in respect of private homosexual acts between consenting males over the age of 21 years capable of valid consent (see paragraph 30 above). No evidence has been adduced to show that this has been injurious to moral standards in Northern Ireland or that there has been any public demand for stricter enforcement of the law.", "It cannot be maintained in these circumstances that there is a \"pressing social need\" to make such acts criminal offences, there being no sufficient justification provided by the risk of harm to vulnerable sections of society requiring protection or by the effects on the public. On the issue of proportionality, the Court considers that such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.", "61. Accordingly, the reasons given by the Government, although relevant, are not sufficient to justify the maintenance in force of the impugned legislation in so far as it has the general effect of criminalising private homosexual relations between adult males capable of valid consent. In particular, the moral attitudes towards male homosexuality in Northern Ireland and the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with the applicant ’ s private life to such an extent. \"Decriminalisation\" does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features.", "To sum up, the restriction imposed on Mr. Dudgeon under Northern Ireland law, by reason of its breadth and absolute character, is, quite apart from the severity of the possible penalties provided for, disproportionate to the aims sought to be achieved.", "62. In the opinion of the Commission, the interference complained of by the applicant can, in so far as he is prevented from having sexual relations with young males under 21 years of age, be justified as necessary for the protection of the rights of others (see especially paragraphs 105 and 116 of the report). This conclusion was accepted and adopted by the Government, but disputed by the applicant who submitted that the age of consent for male homosexual relations should be the same as that for heterosexual and female homosexual relations that is, 17 years under current Northern Ireland law (see paragraph 15 above).", "The Court has already acknowledged the legitimate necessity in a democratic society for some degree of control over homosexual conduct notably in order to provide safeguards against the exploitation and corruption of those who are specially vulnerable by reason, for example, of their youth (see paragraph 49 above). However, it falls in the first instance to the national authorities to decide on the appropriate safeguards of this kind required for the defence of morals in their society and, in particular, to fix the age under which young people should have the protection of the criminal law (see paragraph 52 above).", "D. Conclusion", "63. Mr. Dudgeon has suffered and continues to suffer an unjustified interference with his right to respect for his private life. There is accordingly a breach of Article 8 (art. 8).", "II. THE ALLEGED BREACH OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 (art. 14+8)", "64. Article 14 (art. 14) reads as follows:", "\"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association, with a national minority, property, birth or other status.\"", "65. The applicant claimed to be a victim of discrimination in breach of Article 14 taken in conjunction with Article 8 (art. 14+8), in that he is subject under the criminal law complained of to greater interference with his private life than are male homosexuals in other parts of the United Kingdom and heterosexuals and female homosexuals in Northern Ireland itself. In particular, in his submission Article 14 (art. 14) requires that the age of consent should be the same for all forms of sexual relations.", "66. When dealing with the issues under Article 14 (art. 14), the Commission and likewise the Government distinguished between male homosexual acts involving those under and those over 21 years of age.", "The Court has already held in relation to Article 8 (art. 8) that it falls in the first instance to the national authorities to fix the age under which young people should have the protection of the criminal law (see paragraph 62 above). The current law in Northern Ireland is silent in this respect as regards the male homosexual acts which it prohibits. It is only once this age has been fixed that an issue under Article 14 (art. 14) might arise; it is not for the Court to pronounce upon an issue which does not arise at the present moment.", "67. Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 (art. 14) and a separate breach has been found of the substantive Article, it is not generally necessary for the Court also to examine the case under Article 14 (art. 14), though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see the Airey judgment of 9 October 1979, Series A no. 32 p. 16, par. 30).", "68. This latter condition is not fulfilled as regards the alleged discrimination resulting from the existence of different laws concerning male homosexual acts in various parts of the United Kingdom (see paragraphs 14, 17 and 18 above). Moreover, Mr. Dudgeon himself conceded that, if the Court were to find a breach of Article 8 (art. 8), then this particular question would cease to have the same importance.", "69. According to the applicant, the essential aspect of his complaint under Article 14 (art. 14) is that in Northern Ireland male homosexual acts, in contrast to heterosexual and female homosexual acts, are the object of criminal sanctions even when committed in private between consenting adults.", "The central issue in the present case does indeed reside in the existence in Northern Ireland of legislation which makes certain homosexual acts punishable under the criminal law in all circumstances. Nevertheless, this aspect of the applicant ’ s complaint under Article 14 (art. 14) amounts in effect to the same complaint, albeit seen from a different angle, that the Court has already considered in relation to Article 8 (art. 8); there is no call to rule on the merits of a particular issue which is part of and absorbed by a wider issue (see, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, pp. 30-31, par. 56 in fine). Once it has been held that the restriction on the applicant ’ s right to respect for his private sexual life give rise to a breach of Article 8 (art. 8) by reason of its breadth and absolute character (see paragraph 61 in fine above), there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations on the same right. This being so, it cannot be said that a clear inequality of treatment remains a fundamental aspect of the case.", "70. The Court accordingly does not deem it necessary to examine the case under Article 14 (art. 14) as well.", "III. THE APPLICATION OF ARTICLE 50 (art. 50)", "71. Counsel for the applicant stated that, should the Court find the Convention to have been violated, his client would seek just satisfaction under Article 50 (art. 50) in respect of three matters: firstly, the distress, suffering and anxiety resulting from the police investigation in January 1976; secondly, the general fear and distress suffered by Mr. Dudgeon since he was 17 years of age; and finally, legal and other expenses. Counsel put forward figures of 5,000 pounds under the first head, 10,000 pounds under the second and 5,000 pounds under the third.", "The Government, for their part, asked the Court to reserve the question.", "72. Consequently, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision and must be reserved; in the circumstances of the case, the Court considers that the matter should be referred back to the Chamber in accordance with Rule 50 par. 4 of the Rules of Court." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "8. Mr David Norris was born in 1944. He is an Irish citizen. He is now, and has been since 1967, a lecturer in English at Trinity College, Dublin. At present he sits in the second chamber ( Seanad Eireann ) of the Irish Parliament, being one of the three Senators elected by the graduates of Dublin University.", "9. Mr Norris is an active homosexual and has been a campaigner for homosexual rights in Ireland since 1971; in 1974 he became a founder member and chairman of the Irish Gay Rights Movement. His complaints are directed against the existence in Ireland of laws which make certain homosexual practices between consenting adult men criminal offences.", "10. In November 1977 the applicant instituted proceedings in the High Court (see paragraphs 21-24 below) claiming that the impugned laws were no longer in force by reason of the effect of Article 50 of the Constitution of Ireland, which declared that laws passed before the Constitution but which were inconsistent with it did not continue to be in force. Evidence was given of the extent to which the applicant had been affected by that legislation and had suffered interference with his right to respect for private life. Salient points in this evidence were summarised as follows:", "( i ) The applicant gave evidence of having suffered deep depression and loneliness on realising that he was irreversibly homosexual and that any overt expression of his sexuality would expose him to criminal prosecution.", "(ii) The applicant claimed that his health had been affected when in 1969 he fainted at a Dublin restaurant and was sent to Baggot Street Hospital for tests which resulted in his being referred to a psychiatrist. He was under the psychiatric care of Dr. McCracken for a period in excess of six months. Dr. McCracken ’ s advice to the applicant was that, if he wished to avoid anxiety attacks of this kind, he should leave Ireland and live in a country where the laws relating to homosexual behaviour had been reformed. Dr. McCracken stated in evidence that the applicant was in a normal condition at the time of the first consultation. He did not recall being made aware of a history of collapse.", "(iii) No attempt had been made to institute a prosecution against the applicant or the organisation of which the applicant was then the chairman (see paragraph 9 above). The applicant informed the police authorities of his organisation ’ s activities but met with a sympathetic response and was never subjected to police questioning.", "(iv) The applicant had participated in a television programme on RTE, the State broadcasting company, in or about July 1975. The programme consisted of an interview with him in the course of which he admitted to being a homosexual but denied that this was an illness or that it would prevent him from functioning as a normal member of society. A complaint was lodged against that programme. The Broadcasting Complaints Advisory Committee ’ s report referred to the existing law criminalising homosexual activity and upheld the complaint on the ground that the programme was in breach of the Current/Public Affairs Broadcasting Code in that it could be interpreted as advocacy of homosexual practices.", "(v) The applicant gave evidence of suffering verbal abuse and threats of violence subsequent to the interview with him on RTE, which he attributed in some degree to the criminalising of homosexual activity. He also alleged in evidence that in the past his mail was opened by the postal authorities.", "(vi) The applicant admitted to having a physical relationship with another man and that he feared that he or the person with whom he had the relationship, who normally lived outside Ireland, could face prosecution.", "(vii) The applicant also claimed to have suffered what Mr Justice Henchy in a dissenting judgment in the Supreme Court (see paragraph 22 below) alluded to as follows:", "\"... fear of prosecution or of social obloquy has restricted him in his social and other relations with male colleagues and friends: and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in or thwarted from engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship.\"", "11. It is common ground that at no time before or since the court proceedings brought by the applicant has he been charged with any offence in relation to his admitted homosexual activities. However, he remains legally at risk of being so prosecuted, either by the Director of Public Prosecutions or by way of a private prosecution initiated by a common informer up to the stage of return for trial (see paragraphs 15-19 below).", "III. THE PROCEEDINGS BEFORE THE NATIONAL COURTS", "21. In November 1977 the applicant brought proceedings in the Irish High Court seeking a declaration that sections 61 and 62 of the 1861 Act and section 11 of the 1885 Act were not continued in force since the enactment of the Constitution of Ireland (see paragraph 10 above) and therefore did not form part of Irish law. Mr Justice McWilliam, in his judgment of 10 October 1980, found, among other facts, that \"One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease\". However, he dismissed Mr Norris ’ s action on legal grounds.", "22. On appeal, the Supreme Court, by a three-to-two majority decision of 22 April 1983, upheld the judgment of the High Court. The Supreme Court was satisfied that the applicant had locus standi to bring an action for a declaration even though he had not been prosecuted for any of the offences in question. The majority held that \"as long as the legislation stands and continues to proclaim as criminal the conduct which the plaintiff asserts he has a right to engage in, such right, if it exists, is threatened, and the plaintiff has standing to seek the protection of the court\".", "23. In the course of these proceedings it was contended on behalf of the applicant that the judgment of 22 October 1981 of the European Court of Human Rights in the Dudgeon case (Series A no. 45) should be followed. In support of this plea, it was argued that, since Ireland had ratified the European Convention on Human Rights, there arose a presumption that the Constitution was compatible with the Convention and that, in considering a question as to inconsistency under Article 50 of the Constitution, regard should be had to whether the laws being considered are consistent with the Convention itself.", "In rejecting these submissions, Chief Justice O ’ Higgins, in the majority judgment, stated that \"the Convention is an international agreement\" which \"does not and cannot form part of [ Ireland ’ s] domestic law nor affect in any way questions which arise thereunder\". The Chief Justice said: \"This is made quite clear by Article 29, section 6, of the Constitution which declares: - ‘ No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. ’\"", "In fact, the European Court of Human Rights already noted in its judgment of 1 July 1961 in the Lawless case (Series A no. 3, pp. 40-41, para. 25) that the Oireachtas had not introduced legislation to make the Convention on Human Rights part of the municipal law of Ireland.", "24. The Supreme Court considered the laws making homosexual conduct criminal to be consistent with the Constitution and that no right of privacy encompassing consensual homosexual activity could be derived from \"the Christian and democratic nature of the Irish State\" so as to prevail against the operation of such sanctions. In its majority decision, the Supreme Court based itself, inter alia, on the following considerations:", "\"(1) Homosexuality has always been condemned in Christian teaching as being morally wrong. It has equally been regarded by society for many centuries as an offence against nature and a very serious crime.", "(2) Exclusive homosexuality, whether the condition be congenital or acquired, can result in great distress and unhappiness for the individual and can lead to depression, despair and suicide.", "(3) The homosexually oriented can be importuned into a homosexual lifestyle which can become habitual.", "(4) Male homosexual conduct has resulted, in other countries, in the spread of all forms of venereal disease and this has now become a significant public health problem in England.", "(5) Homosexual conduct can be inimical to marriage and is per se harmful to it as an institution.\"", "The Supreme Court, however, awarded the applicant his costs, both of the proceedings before the High Court and of the appeal to the Supreme Court." ]

[ "II. THE RELEVANT LAW IN IRELAND", "A. The impugned statutory provisions", "12. Irish law does not make homosexuality as such a crime. But certain statutory provisions in force in Ireland penalise certain homosexual activities. Some of these are penalised by the Offences against the Person Act, 1861 (\"the 1861 Act\") and the Criminal Law Amendment Act, 1885 (\"the 1885 Act\").", "The provisions relevant to the present case are sections 61 and 62 of the 1861 Act. Section 61 of the 1861 Act, as amended in 1892, provides that:", "\"Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be kept in penal servitude for life.\"", "Section 62 of the 1861 Act, as similarly amended, provides that:", "\"Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon a male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding ten years.\"", "The offences of buggery or of an attempt to commit the same may be committed by male or female persons.", "Section 11 of the 1885 Act deals only with male persons. It provides that:", "\"Any male person who, in public or in private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.\"", "13. Sections 61 and 62 of the 1861 Act should be read in conjunction with the provisions of the Penal Servitude Act 1891, section 1, by virtue of which the court is empowered to impose a lesser sentence of penal servitude than that mentioned in the 1861 Act or, in lieu thereof, a sentence of imprisonment for a term not exceeding two years or a fine. The provisions of the 1861 Act and of the 1885 Act are also subject to the power given to the court by section 1(2) of the Probation of Offenders Act 1907, to apply, by way of substitution, certain more lenient measures.", "The terms \"hard labour\" and \"penal servitude\" no longer have any practical significance, since anyone now sentenced to \"hard labour\" or \"penal servitude\" will, in practice, serve an ordinary prison sentence.", "14. The 1885 Act is the only one of the legislative provisions attacked in the instant case that can be described as dealing solely with homosexual activities. What particular acts in any given case may be held to amount to gross indecency is a matter which is not statutorily defined and is therefore for the courts to decide on the particular facts of each case.", "B. The enforcement of the relevant statutory provisions", "15. The right to prosecute persons before a court other than a court of summary jurisdiction is governed by Article 30, section 3 of the Constitution which is as follows:", "\"All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose.\"", "Section 9 of the Criminal Justice (Administration) Act, 1924, as adapted by the Constitution (Consequential Provisions) Act, 1937, provides that:", "\"All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General of Ireland.\"", "16. The provisions of the Prosecution of Offences Act 1974 extended to the Director of Public Prosecutions most of the prosecuting functions exercised by the Attorney General. The Director of Public Prosecutions (an office created by that Act) is independent of the Government and a permanent official in the Civil Service of the State as distinct from the Civil Service of the Government.", "17. Any member of the public, whether an Irish citizen or not, has the right as a \"common informer\" to bring a private prosecution. He need not have any direct interest in the alleged offence or be personally affected by it. A private prosecutor ’ s rights are limited in respect of offences which are not triable summarily. In The State (Ennis) v. Farrell [1966] Irish Reports 107, it was held by the Supreme Court that the effect of section 9 of the Criminal Justice (Administration) Act 1924 was that a private prosecutor may conduct a prosecution up to the point where the judge of the District Court decides that the evidence is sufficient to warrant a committal for trial in cases of indictable offences i.e. triable with a jury. Thereafter the Attorney General, or now also the Director of Public Prosecutions, becomes dominus litis and must then consider whether or not he should present an indictment against the accused who has been returned by the District Court for trial with a jury.", "18. The offences which are at issue in the present case, namely those set out in sections 61 and 62 of the 1861 Act and in section 11 of the 1885 Act, are indictable offences. Indictable offences are only triable summarily in the District Court if the judge of the District Court is of the opinion that the facts constitute a minor offence and the accused, on being informed of his right to trial by jury, expressly waives that right. This availability of summary trial is provided for by the Criminal Justice Act 1951 and is limited to those indictable offences set out in the Schedule to that Act. This does not include the offences under sections 61 and 62 of the 1861 Act. The summary trial procedure is available in respect of an offence under section 11 of the 1885 Act where the accused is over the age of sixteen years and the person with whom the act is alleged to have been committed is legally unable to consent for being under the age of sixteen years or an idiot, an imbecile or a feeble-minded person. Thus a summary trial can never be had in cases involving consenting adults and, save where the accused pleads guilty, the case can be heard only with a jury whether the prosecution was commenced by a private prosecutor or by the Director of Public Prosecutions.", "Moreover, the Criminal Procedure Act 1967 permits a person charged with any indictable offence (save an offence under the Treason Act, 1939, murder, attempt to murder, conspiracy to murder, piracy or an offence under section 3 (1) ( i ) of the Geneva Conventions Act, 1962) to plead guilty in the District Court. If the Director of Public Prosecutions, or the Attorney General, as the case may be, consents, the case may be disposed of summarily in that Court. If sentence is imposed by the District Court, it cannot exceed twelve months ’ imprisonment. If the judge of the District Court is of opinion that the offence warrants a greater penalty, he may send the accused forward to the Circuit Court for sentence. In such a case an accused may change his plea to one of \"not guilty\" and the case will then be tried with a jury. The Circuit Court has a discretion to impose any sentence up to the limit permitted by the relevant statutory provision.", "19. Therefore, while a private prosecution may be initiated by a common informer, a prosecution brought under one of the impugned provisions cannot proceed to trial before a jury unless an indictment is laid by the Director of Public Prosecutions. According to the Office of the Director of Public Prosecutions there have not been any private prosecutions arising out of the homosexual activity in private of consenting male adults since the inception of the Office in 1974.", "20. The following statement was made by the Office of the Director of Public Prosecutions in September 1984, in reply to a question asked by the Commission:", "\"The Director has no stated prosecution policy on any branch of the criminal law. He has no unstated policy not to enforce any offence. Each case is treated on its merits.\"", "The Government ’ s statistics show that no public prosecutions, in respect of homosexual activities, were brought during the relevant period except where minors were involved or the acts were committed in public or without consent.", "PROCEEDINGS BEFORE THE COMMISSION", "25. Mr Norris applied to the Commission on 5 October 1983 (application no. 10581/83). He complained of the existence in Ireland of legislation which prohibits male homosexual activity (sections 61 and 62 of the 1861 Act and section 11 of the 1885 Act). Mr Norris alleged that the prohibition on male homosexual activity constitutes a continuing interference with his right to respect for private life (including sexual life), contrary to Article 8 (art. 8) of the Convention. The National Gay Federation joined with the applicant in the application to the Commission and both made other claims under Articles 1 and 13 (art. 1, art. 13) of the Convention.", "26. By decision of 16 May 1985, the Commission declared the application admissible in respect of the alleged interference with Mr Norris ’ s private life. The claims made under Articles 1 and 13 (art. 1, art. 13) were declared inadmissible, as were the aforesaid Federation ’ s entire complaints.", "In its report adopted on 12 March 1987 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion, by six votes to five, that there had been a violation of Article 8 (art. 8) of the Convention.", "The full text of the Commission ’ s opinion and the joint dissenting opinion contained in the report is reproduced as an annex to this judgment.", "FINAL SUBMISSIONS MADE TO THE COURT", "27. At the hearing the Government maintained the final submissions in their memorial of 23 October 1987, in which they requested the Court:", "\"(1) to decide and declare that the applicant is not a ‘ victim ’ within the meaning of Article 25 (art. 25) of the European Convention on Human Rights and therefore that there has been no breach of the Convention in this case; or, in the alternative", "(2) to decide and declare that the present laws in Ireland relating to homosexual acts do not give rise to a breach of Article 8 (art. 8) of the Convention in that the laws are necessary in a democratic society for the protection of morals and for the protection of the rights of others for the purposes of paragraph 2 of Article 8 (art. 8-2) of the Convention.\"", "AS TO THE LAW", "I. WHETHER THE APPLICANT IS ENTITLED TO CLAIM TO BE A VICTIM UNDER ARTICLE 25 PARA. 1 (art. 25-1)", "28. The Government asked the Court - and had made the same plea before the Commission - to hold that the applicant could not claim to be a \"victim\" within the meaning of Article 25 para. 1 (art. 25-1) of the Convention which, so far as is relevant, provides that:", "\"The Commission may receive petitions ... from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention ...\"", "The Government submitted that, since the legislation complained of had never been enforced against the applicant (see paragraphs 11-14 above), his claim was more in the nature of an actio popularis by means of which he sought a review in abstracto of the contested legislation in the light of the Convention.", "29. The Commission considered that Mr Norris could claim to be a victim. In this connection, it referred to certain earlier decisions of the Court, namely the Klass and Others judgment of 6 September 1978, the Marckx judgment of 13 June 1979 and the Dudgeon judgment of 22 October 1981 (Series A nos. 28, 31 and 45).", "In the Commission ’ s view, although the applicant has not been prosecuted or subjected to any criminal investigation, he is directly affected by the laws of which he complains because he is predisposed to commit prohibited sexual acts with consenting adult men by reason of his homosexual orientation.", "30. The Court recalls that, whilst Article 24 (art. 24) of the Convention permits a Contracting State to refer to the Commission \"any alleged breach\" of the Convention by another Contracting State, Article 25 (art. 25) requires that an individual applicant should be able to claim to be actually affected by the measure of which he complains. Article 25 (art. 25) may not be used to found an action in the nature of an actio popularis; nor may it form the basis of a claim made in abstracto that a law contravenes the Convention (see the Klass and Others judgment, previously cited, Series A no. 28, pp. 17-18, para. 33).", "31. The Court further agrees with the Government that the conditions governing individual applications under Article 25 (art. 25) of the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 25 (art. 25) and, whilst those purposes may sometimes be analogous, they need not always be so (ibid., p. 19, para. 36).", "Be that as it may, the Court has held that Article 25 (art. 25) of the Convention entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 21, para. 42, and the Marckx judgment, previously cited, Series A no. 31, p. 13, para. 27).", "32. In the Court ’ s view, Mr Norris is in substantially the same position as the applicant in the Dudgeon case, which concerned identical legislation then in force in Northern Ireland. As was held in that case, \"either [he] respects the law and refrains from engaging - even in private and with consenting male partners - in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution\" (Series A no. 45, p. 18, para. 41).", "33. Admittedly, it appears that there have been no prosecutions under the Irish legislation in question during the relevant period except where minors were involved or the acts were committed in public or without consent. It may be inferred from this that, at the present time, the risk of prosecution in the applicant ’ s case is minimal. However, there is no stated policy on the part of the prosecuting authorities not to enforce the law in this respect (see paragraph 20 above). A law which remains on the statute book, even though it is not enforced in a particular class of cases for a considerable time, may be applied again in such cases at any time, if for example there is a change of policy. The applicant can therefore be said to \"run the risk of being directly affected\" by the legislation in question. This conclusion is further supported by the High Court ’ s judgment of 10 October 1980, in which Mr Justice McWilliam, on the witnesses ’ evidence, found, inter alia, that \"One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease\" (see paragraph 21 above).", "34. On the basis of the foregoing considerations, the Court finds that the applicant can claim to be the victim of a violation of the Convention within the meaning of Article 25 para. 1 (art. 25-1) thereof.", "That being so, the Court does not consider it necessary to examine further the applicant ’ s allegations with regard to, inter alia, threats of prosecution, claims of interference with his mail, the upholding of a complaint against a television programme on which he appeared and the evidence he gave before the High Court of Ireland of his psychiatric problems (see paragraph 10 above).", "II. THE ALLEGED BREACH OF ARTICLE 8 (art. 8)", "A. The existence of an interference", "35. Mr Norris complained that under the law in force in Ireland he is liable to criminal prosecution on account of his homosexual conduct. He alleged that he has thereby suffered, and continues to suffer, an unjustified interference with his right to respect for his private life, in breach of Article 8 (art. 8) which provides that:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "36. The Commission (at paragraph 55 of its report) considered that \"One of the main purposes of penal legislation is to deter the proscribed behaviour, and citizens are deemed to conduct themselves, or modify their behaviour, in such a way as not to contravene the criminal law. It cannot be said, therefore, that the applicant runs no risk of prosecution or that he can wholly ignore the legislation in question.\"", "The Commission, therefore, found that the legislation complained of interferes with the applicant ’ s right to respect for his private life, guaranteed by Article 8 para. 1 (art. 8-1) of the Convention, in so far as it prohibits the homosexual activities in question even when committed in private between consenting adult men.", "37. The Government, on the other hand, contended that it was not possible to conclude that there had been any lack of respect for the applicant ’ s rights under the Convention. In support of their contention, the Government relied on the fact that the applicant had been able to maintain an active public life side by side with a private life free from any interference on the part of the State or its agents. They further submitted that no derogation from the applicant ’ s fundamental rights occurs by virtue of the mere existence of laws restricting homosexual behaviour under pain of legal sanction.", "38. The Court agrees with the Commission that, with regard to the interference with an Article 8 (art. 8) right, the present case is indistinguishable from the Dudgeon case. The laws in question are applied so as to prosecute persons in respect of homosexual acts committed in the circumstances mentioned in the first sentence of paragraph 33. Above all, and quite apart from those circumstances, enforcement of the legislation is a matter for the Director of Public Prosecutions who may not fetter his discretion with regard to each individual case by making a general statement of his policy in advance (see paragraph 20). A prosecution may, in any event, be initiated by a member of the public acting as a common informer (see paragraphs 15-19 above).", "It is true that, unlike Mr Dudgeon, Mr Norris was not the subject of any police investigation. However, the Court ’ s finding in the Dudgeon case that there was an interference with the applicant ’ s right to respect for his private life was not dependent upon this additional factor. As was held in that case, \"the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant ’ s right to respect for his private life ... within the meaning of Article 8 para. 1 (art. 8-1). In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life ...\" (Series A no. 45, p. 18, para. 41).", "The Court therefore finds that the impugned legislation interferes with Mr Norris ’ s right to respect for his private life under Article 8 para. 1 (art. 8-1).", "B. The existence of a justification for the interference", "39. The interference found by the Court does not satisfy the conditions of paragraph 2 of Article 8 (art. 8-2) unless it is \"in accordance with the law\", has an aim which is legitimate under this paragraph and is \"necessary in a democratic society\" for the aforesaid aim (see, as the most recent authority, the Olsson judgment of 24 March 1988, Series A no. 130, p. 29, para. 59).", "40. It is common ground that the first two conditions are satisfied. As the Commission pointed out in paragraph 58 of its report, the interference is plainly \"in accordance with the law\" since it arises from the very existence of the impugned legislation. Neither was it contested that the interference has a legitimate aim, namely the protection of morals.", "41. It remains to be determined whether the maintenance in force of the impugned legislation is \"necessary in a democratic society\" for the aforesaid aim. According to the Court ’ s case-law, this will not be so unless, inter alia, the interference in question answers a pressing social need and in particular is proportionate to the legitimate aim pursued (see, amongst many other authorities, the above-mentioned Olsson judgment, Series A no. 130, p. 31, para. 67).", "42. In this respect, the Commission again was of the opinion that the present case was indistinguishable from that of Mr Dudgeon. At paragraph 62 of its report it quoted extensively from those paragraphs of the Dudgeon judgment (paragraphs 48-63) in which this question was discussed. In that judgment it was accepted that, since \"some form of legislation is ‘ necessary ’ to protect particular sections of society as well as the moral ethos of society as a whole, the question in the present case is whether the contested provisions of the law ... and their enforcement remain within the bounds of what, in a democratic society, may be regarded as necessary in order to accomplish those aims\" (Series A no. 45, p. 21, para. 49).", "It was not contended before the Commission that there is a large body of opinion in Ireland which is hostile or intolerant towards homosexual acts committed in private between consenting adults. Nor was it argued that Irish society had a special need to be protected from such activity. In these circumstances, the Commission concluded that the restriction imposed on the applicant under Irish law, by reason of its breadth and absolute character, is disproportionate to the aims sought to be achieved and therefore is not necessary for one of the reasons laid down in Article 8 para. 2 (art. 8-2) of the Convention.", "43. At the oral hearing, the Government argued that, whilst the criteria of pressing social need and proportionality were valid yardsticks for testing restrictions imposed in the interests of national security, public order or the protection of public health, they could not be applied to determine whether an interference is \"necessary in a democratic society\" for the protection of morals; and that further a wider view of necessity should be taken in an area in which the Contracting States enjoy a wide margin of appreciation.", "In the Government ’ s opinion, the application of these criteria emptied the \"moral exception\" of meaning. In their view, the identification of \"necessity\" with \"pressing social need\" in the context of moral values is too restrictive and produces a distorting result, while the test of proportionality involves the evaluation of a moral issue and this is something that the Court should avoid if possible. Within broad parameters the moral fibre of a democratic nation is a matter for its own institutions and the Government should be allowed a degree of tolerance in their compliance with Article 8 (art. 8), that is to say, a margin of appreciation that would allow the democratic legislature to deal with this problem in the manner which it sees best.", "44. The Court is not convinced by this line of argument. As early as 1976, the Court declared in its Handyside judgment of 7 December 1976 that, in investigating whether the protection of morals necessitated the various measures taken, it had to make an \"assessment of the reality of the pressing social need implied by the notion of ‘ necessity ’ in this context\" and stated that \"every ‘ restriction ’ imposed in this sphere must be proportionate to the legitimate aim pursued\" (Series A no. 24, pp. 21-23, paras. 46, 48 and 49). It confirmed this approach in its Dudgeon judgment (Series A no. 45, pp. 20-22, paras. 48 et seq.).", "The more recent case of Müller and Others demonstrates that, in the context of the protection of morals, the Court continues to apply the same tests for determining what is \"necessary in a democratic society\". In that case, the Court, in reaching its decision, examined whether the contested measures, which pursued the legitimate aim of protecting morals, both answered a pressing social need and complied with the principle of proportionality (see the judgment of 24 May 1988, Series A no. 133, pp. 21-23, paras. 31-37 and pp. 24-25, paras. 40-44).", "The Court sees no reason to depart from the approach which emerges from its settled case-law and, although of the three aforementioned judgments two related to Article 10 (art. 10) of the Convention, it sees no cause to apply different criteria in the context of Article 8 (art. 8).", "45. Moreover, in making their submission that the definition of \"necessity\" should be given a wider interpretation, the Government in effect put forward no viable tests of their own to replace or complement those mentioned above. The Government ’ s contention would therefore appear to be that the State ’ s discretion in the field of the protection of morals is unfettered.", "Whilst national authorities - as the Court acknowledges - do enjoy a wide margin of appreciation in matters of morals, this is not unlimited. It is for the Court, in this field also, to give a ruling on whether an interference is compatible with the Convention (see the previously cited Handyside judgment, Series A no. 24, p. 23, para. 49).", "The Government are in effect saying that the Court is precluded from reviewing Ireland ’ s observance of its obligation not to exceed what is necessary in a democratic society when the contested interference with an Article 8 (art. 8) right is in the interests of the \"protection of morals\". The Court cannot accept such an interpretation. To do so would run counter to the terms of Article 19 (art. 19) of the Convention, under which the Court was set up in order \"to ensure the observance of the engagements undertaken by the High Contracting Parties ...\".", "46. As in the Dudgeon case, \"... not only the nature of the aim of the restriction but also the nature of the activities involved will affect the scope of the margin of appreciation. The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of public authorities can be legitimate for the purposes of paragraph 2 of Article 8 (art. 8-2)\" (Series A no. 45, p. 21, para. 52).", "Yet the Government have adduced no evidence which would point to the existence of factors justifying the retention of the impugned laws which are additional to or are of greater weight than those present in the aforementioned Dudgeon case. At paragraph 60 of its judgment of 22 October 1981 (ibid., pp. 23-24), the Court noted that \"As compared with the era when [the] legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member States\". It was clear that \"the authorities [had] refrained in recent years from enforcing the law in respect of private homosexual acts between consenting [adult] males ... capable of valid consent\". There was no evidence to show that this \"[had] been injurious to moral standards in Northern Ireland or that there [had] been any public demand for stricter enforcement of the law\".", "Applying the same tests to the present case, the Court considers that, as regards Ireland, it cannot be maintained that there is a \"pressing social need\" to make such acts criminal offences. On the specific issue of proportionality, the Court is of the opinion that \"such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved\" (ibid., p. 24, para. 60).", "47. The Court therefore finds that the reasons put forward as justifying the interference found are not sufficient to satisfy the requirements of paragraph 2 of Article 8 (art. 8-2). There is accordingly a breach of that Article (art. 8).", "III. THE APPLICATION OF ARTICLE 50 (art. 50)", "48. Under Article 50 (art. 50) of the Convention:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "The applicant seeks compensation for damage and reimbursement of legal costs and expenses.", "A. Damage", "49. The applicant requested the Court to fix such amount by way of damages as would recognise the extent to which he has suffered from the maintenance in force of the legislation.", "The Government submitted that the Court should follow its decision of 24 February 1983 in the Dudgeon case on this point (see Series A no. 59) in which it held that a finding of a breach of Article 8 (art. 8) in itself constituted just satisfaction.", "50. In reaching the aforementioned decision, the Court took into account the change in the law which had been effected with regard to Northern Ireland in compliance with the Court ’ s judgment of 22 October 1981 (Series A no. 59, pp. 7-8, paras. 11-14). No similar reform has been carried out in Ireland.", "As in the Marckx case, it is inevitable that the Court ’ s decision will have effects extending beyond the confines of this particular case, especially since the violation found stems directly from the contested provisions and not from individual measures of implementation. It will be for Ireland to take the necessary measures in its domestic legal system to ensure the performance of its obligation under Article 53 (art. 53) (Series A no. 31, p. 25, para. 58).", "For this reason and notwithstanding the different situation in the present case as compared with the Dudgeon case, the Court is of the opinion that its finding of a breach of Article 8 (art. 8) constitutes adequate just satisfaction for the purposes of Article 50 (art. 50) of the Convention and therefore rejects this head of claim.", "B. Costs and expenses", "51. In respect of the proceedings before the national courts, the Supreme Court awarded the applicant taxed costs in the amount of IR£75,762.12 (see paragraph 24 above). He submitted that this amount did not in fact fully cover the actual expenditure incurred.", "The Court cannot accept this head of claim. The costs having been assessed by a Taxing Master in accordance with the law of Ireland, it is not the Court ’ s role to reassess them.", "52. The applicant also sought an amount of IR£14,962.49 for costs and expenses, details of which he furnished, in respect of the proceedings conducted before the Convention institutions.", "Whilst not contesting that the applicant had incurred additional liabilities over and above the amounts received by him by way of legal aid, the Government claimed that the legal costs sought by him were not reasonable as to quantum and required reassessment. The Court notes, however, that the Government made no counter-proposal as to what might constitute a reasonable amount.", "The Court considers that the amount claimed satisfies the criteria laid down in its case-law (see among other authorities the Belilos judgment of 29 April 1988, Series A no. 132, pp. 27-28, para. 79) and awards to the applicant, in respect of costs and expenses, IR£14,962.49 less 7,390 French francs already paid in legal aid." ]

[ "7. The applicant is a homosexual who is currently involved in a sexual relationship with another male adult. He is the President of the \"Liberation Movement of Homosexuals in Cyprus \". He states that he suffers great strain, apprehension and fear of prosecution by reason of the legal provisions which criminalise certain homosexual acts.", "A. Criminal Code", "8. Sections 171, 172 and 173 of the Criminal Code of Cyprus, which predates the Constitution, provide as follows:", "\"171. Any person who -", "(a) has carnal knowledge of any person against the order of nature; or (b) permits a male person to have carnal knowledge of him against the order of nature, is guilty of a felony and is liable to imprisonment for five years.", "172. Any person who with violence commits either of the offences specified in the last preceding Section is guilty of a felony and liable to imprisonment for fourteen years.", "173. Any person who attempts to commit either of the offences specified in Section 171 is guilty of a felony and is liable to imprisonment for three years, and if the attempt is accompanied with violence he is liable to imprisonment for seven years.\"", "9. Various Ministers of Justice had indicated in statements to newspapers dated 11 May 1986, 16 June 1988 and 29 July 1990, that they were not in favour of introducing legislation to amend the law relating to homosexuality. In a statement to a newspaper on 25 October 1992 the Minister of the Interior stated, inter alia, that although the law was not being enforced he did not support its abolition.", "B. Constitutional provisions", "10. The relevant provisions of the Constitution of the Republic of Cyprus, which came into force on 16 August 1960, read as follows:", "Article 15", "\"1. Every person has the right to respect for his private and family life.", "2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person.\"", "Article 169", "\"1. ...", "2. ...", "3. Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the Official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.\"", "Article 179", "\"1. This Constitution shall be the supreme law of the Republic.", "2. No law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ, authority or person in the Republic exercising executive power or any administrative function shall in any way be repugnant to, or inconsistent with, any of the provisions of this Constitution.\"", "Article 188", "\"1. Subject to the provisions of this Constitution and to the following provisions of this Article, all laws in force on the date of the coming into operation of this Constitution shall, until amended, whether by way of variation, addition or repeal, by any law or communal law, as the case may be, made under this Constitution, continue in force on or after that date, and shall, as from that date be construed and applied with such modification as may be necessary to bring them into conformity with this Constitution.", "2. ...", "3. ...", "4. Any court in the Republic applying the provisions of any such law which continues in force under paragraph 1 of this Article, shall apply it in relation to any such period, with such modification as may be necessary to bring it into accord with the provisions of the Constitution including the Transitional Provisions thereof.", "5. In this Article -", "‘ law ’ includes any public instrument made before the date of the coming into operation of this Constitution by virtue of such law;", "‘ modification ’ includes amendment, adaptation and repeal.\"", "C. Case-law", "11. In the case of Costa v. The Republic (2 Cyprus Law Reports, pp. 120-133 [1982]) the accused - a 19 year-old soldier - was convicted of the offence of permitting another male person to have carnal knowledge of him contrary to section 171(b) of the Criminal Code. The offence was committed in a tent within the sight of another soldier using the same tent. The accused had contended that section 171(b) was contrary to Article 15 of the Constitution and/or Article 8 (art. 8) of the European Convention on Human Rights. In its judgment of 8 June 1982 the Supreme Court noted that, since the offence was not committed in private and since the accused was a soldier who was 19 years of age at the time, the constitutional and legal issues raised by the case fell outside the ambit of the construction given to Article 8 (art. 8) by the European Court of Human Rights in its Dudgeon v. the United Kingdom judgment of 22 October 1981 (Series A no. 45). The Supreme Court, nevertheless, added that it could not follow the majority view of the Court in the Dudgeon case and adopted the dissenting opinion of Judge Zekia. The court stated as follows:", "\"By adopting the dissenting opinion of Judge Zekia this Court should not be taken as departing from its declared attitude that, for the interpretation of provisions of the Convention, domestic tribunals should turn to the interpretation given by the international organs entrusted with the supervision of its application, namely, the European Court and the European Commission of Human Rights ...", "In ascertaining the nature and scope of morals and the degree of the necessity commensurate to their protection, the jurisprudence of the European Court and the European Commission of Human Rights has already held that the conception of morals changes from time to time and from place to place, and that there is no uniform European conception of morals; that, furthermore, it has been held that state authorities of each country are in a better position than an international judge to give an opinion as to the prevailing standards of morals in their country; in view of these principles this Court has decided not to follow the majority view in the Dudgeon case, but to adopt the dissenting opinion of Judge Zekia, because it is convinced that it is entitled to apply the Convention and interpret the corresponding provisions of the Constitution in the light of its assessment of the present social and moral standards in this country; therefore, in the light of the aforesaid principles and viewing the Cypriot realities, this Court is not prepared to come to the conclusion that Section 171(b) of our Criminal Code, as it stands, violates either the Convention or the Constitution, and that it is unnecessary for the protection of morals in our country.\"", "D. The prosecution policy of the Attorney-General", "12. There had been prosecutions and convictions in Cyprus for homosexual conduct in private between consenting adults up until the 1981 judgment of the European Court in the Dudgeon case (loc. cit.). When this case was pending before the European Court the Attorney-General requested the police not to continue with a prosecution under section 171 because of apparent conflict between that provision and Article 8 (art. 8) of the Convention. Since that date the Attorney-General ’ s office has not allowed or instituted any prosecution which conflicts with either Article 8 (art. 8) of the Convention or Article 15 of the Constitution, in so far as they relate to homosexual behaviour in private between consenting adults.", "Under Article 113 of the Constitution of Cyprus the Attorney-General is vested with competence to institute and discontinue criminal proceedings in the public interest. Although he could not prevent a private prosecution from being brought he can intervene to discontinue it." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "13. In his application before the Commission (no. 15070/89) lodged on 22 May 1989, the applicant complained that the prohibition on male homosexual activity constituted a continuing interference with his right to respect for private life in breach of Article 8 (art. 8) of the Convention.", "14. On 6 December 1990 the Commission declared the application admissible. In its report of 3 December 1991, drawn up under Article 31 (art. 31) of the Convention, it concluded unanimously that there had been a breach of Article 8 (art. 8).", "The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS MADE BY THE GOVERNMENT", "15. At the hearing on 27 October 1992 the Government requested the Court to find that there had been no breach of Article 8 (art. 8).", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)", "16. The applicant complained that the maintenance in force of provisions of the Cypriot Criminal Code (see paragraph 8 above) which criminalise private homosexual relations constitutes an unjustified interference with his right to respect for private life under Article 8 (art. 8) of the Convention which reads:", "\"1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\"", "A. The existence of an interference", "17. The Government submitted that neither the applicant nor any other person in his situation could be lawfully prosecuted under sections 171, 172 and 173 of the Cypriot Criminal Code, since, to the extent that these provisions concerned homosexual relations in private between consenting male adults, they are in conflict with Article 15 of the Cypriot Constitution (see paragraph 10 above) and Article 8 (art. 8) of the Convention. To that extent the prohibition of such relations is in fact no longer in force. Moreover, since 1981 the Attorney-General, who has exclusive competence to institute and discontinue criminal proceedings, has not brought or permitted a prosecution in respect of such homosexual conduct (see paragraph 12 above). Accordingly, there being no risk of prosecution, there is no interference with the applicant ’ s rights under Article 8 (art. 8).", "18. The applicant disagreed. In his view, the impugned provisions are still in force. He pointed to the statements of various Government ministers who, by objecting to the amendment of the law, had implicitly acknowledged its validity (see paragraph 9 above). Moreover, the policy of the Attorney-General not to prosecute could change at any time and a member of the public could bring a private prosecution against the applicant. There is thus no guarantee that he will not be prosecuted.", "19. For the Commission, the applicant ’ s fear of prosecution could not be regarded as unfounded.", "20. The Court first observes that the prohibition of male homosexual conduct in private between adults still remains on the statute book (see paragraph 8 above). Moreover, the Supreme Court of Cyprus in the case of Costa v. The Republic considered that the relevant provisions of the Criminal Code violated neither the Convention nor the Constitution notwithstanding the European Court ’ s Dudgeon v. the United Kingdom judgment of 22 October 1981 (Series A no. 45) (see paragraph 11 above).", "21. The Government, however, have maintained that this case was decided by the Supreme Court in June 1982, prior to the Norris v. Ireland judgment of 26 October 1988 (Series A no. 142) and before the implications of the Dudgeon decision were properly understood; and further that since the Costa case did not concern private homosexual relations between adults the Supreme Court ’ s remarks concerning the Dudgeon judgment were obiter dicta.", "22. In the Court ’ s view, whatever the status in domestic law of these remarks, it cannot fail to take into account such a statement from the highest court of the land on matters so pertinent to the issue before it (see, mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, pp. 23-24, para. 52).", "23. It is true that since the Dudgeon judgment the Attorney-General, who is vested with the power to institute or discontinue prosecutions in the public interest, has followed a consistent policy of not bringing criminal proceedings in respect of private homosexual conduct on the basis that the relevant law is a dead letter.", "Nevertheless, it is apparent that this policy provides no guarantee that action will not be taken by a future Attorney-General to enforce the law, particularly when regard is had to statements by Government ministers which appear to suggest that the relevant provisions of the Criminal Code are still in force (see paragraph 9 above). Moreover, it cannot be excluded, as matters stand, that the applicant ’ s private behaviour may be the subject of investigation by the police or that an attempt may be made to bring a private prosecution against him.", "24. Against this background, the Court considers that the existence of the prohibition continuously and directly affects the applicant ’ s private life. There is therefore an interference (see the above-mentioned Dudgeon and Norris judgments, Series A nos. 45 and 142, pp. 18-19, paras. 40-41, and pp. 17-18, paras. 35-38).", "B. The existence of a justification under Article 8 para. 2 (art. 8-2)", "25. The Government have limited their submissions to maintaining that there is no interference with the applicant ’ s rights and have not sought to argue that there exists a justification under paragraph 2 of Article 8 (art. 8-2) for the impugned legal provisions. In the light of this concession and having regard to the Court ’ s case-law (see the above-mentioned Dudgeon and Norris judgments, pp. 19-25, paras. 42-62, and pp. 18-21, paras. 39-47), a re-examination of this question is not called for.", "C. Conclusion", "26. Accordingly, there is a breach of Article 8 (art. 8) in the present case.", "II. APPLICATION OF ARTICLE 50 (art. 50)", "27. Under Article 50 (art. 50) of the Convention:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Damage", "28. The applicant first submitted that he should be awarded a sum to compensate him for the amount of time he has lost from his work as a self-employed architect by participating in the Strasbourg proceedings as well as an amount for mental stress and suffering.", "29. Both the Government and the Delegate of the Commission considered that no award should be made.", "30. The Court considers that, in the circumstances of the case, the finding of a breach of Article 8 (art. 8) constitutes sufficient just satisfaction under this head for the purposes of Article 50 (art. 50).", "B. Costs and expenses", "31. The applicant also claimed 7,730 Cyprus pounds in respect of legal fees and 2,836 Cyprus pounds by way of travelling, subsistence and other out-of-pocket expenses connected with the Strasbourg proceedings.", "32. The Government considered that it would be fair and reasonable to limit the award of costs to 1,000 Cyprus pounds but had no objection to awarding the full amount claimed for expenses.", "33. Taking its decision on an equitable basis, as required by Article 50 (art. 50), and applying the criteria laid down in its case-law, the Court holds that the applicant should be awarded 4,000 Cyprus pounds in respect of fees together with the full amount claimed by way of expenses." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicants were born in 1967 and 1968 respectively and live in Vienna.", "A. The first applicant", "10. On 8 February 1996 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) convicted the first applicant under Article 209 of the Criminal Code ( Strafgesetzbuch ) of homosexual acts with adolescents and sentenced him to one year's imprisonment suspended on probation for a period of three years. Relying mainly on the first applicant's diary, in which he had made entries about his sexual encounters, the court found it established that between 1989 and 1994 the first applicant had had, in Austria and in a number of other countries, homosexual relations either by way of oral sex or masturbation with numerous persons between 14 and 18 years of age, whose identity could not be established.", "11. On 5 November 1996 the Supreme Court ( Oberster Gerichtshof ), upon the first applicant's plea of nullity, quashed the judgment regarding the offences committed abroad.", "12. On 29 January 1997 the Vienna Regional Criminal Court resumed the proceedings, which had been discontinued as far as the offences committed abroad were concerned, and found the first applicant guilty under Article 209 of the Criminal Code of the offences committed in Austria, sentencing him to eleven months' imprisonment suspended on probation for a period of three years.", "13. On 27 May 1997 the Supreme Court dismissed the first applicant's plea of nullity in which he had complained that the application of Article 209 of the Criminal Code violated his right to respect for his private life and his right to non-discrimination and had suggested that the Supreme Court request the Constitutional Court to review the constitutionality of that provision.", "14. On 31 July 1997 the Vienna Court of Appeal ( Oberlandesgericht ), upon the first applicant's appeal, reduced the sentence to eight months' imprisonment suspended on probation for a period of three years.", "B. The second applicant", "15. On 21 February 1997 the Vienna Regional Criminal Court convicted the second applicant under Article 209 of the Criminal Code of homosexual acts with adolescents, and on one minor count of misappropriation. It sentenced him to six months' imprisonment suspended on probation for a period of three years. The Court found it established that on one occasion the second applicant had had oral sex with a 15-year-old.", "16. On 22 May 1997 the Vienna Court of Appeal dismissed the second applicant's appeal on points of law, in which he had complained that Article 209 of the Criminal Code was discriminatory and violated his right to respect for his private life and had suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. It also dismissed his appeal against sentence. The decision was served on 3 July 1997." ]

[ "II. RELEVANT DOMESTIC LAW AND BACKGROUND", "A. The Criminal Code", "17. Any sexual acts with persons under 14 years of age are punishable under Articles 206 and 207 of the Criminal Code.", "18. Article 209 of the Criminal Code, in the version in force at the material time, read as follows:", "“A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.”", "19. This provision was aimed at consensual homosexual acts, as any sexual act of adults with persons up to 19 years of age are punishable under Article 212 of the Criminal Code if the adult abuses a position of authority (parent, employer, teacher, doctor, etc.). Any sexual acts involving the use of force or threats are punishable as rape, pursuant to Article 201, or sexual coercion pursuant to Article 202 of the Criminal Code. Consensual heterosexual or lesbian acts between adults and persons over 14 years of age are not punishable.", "20. Offences under Article 209 were regularly prosecuted, an average of sixty criminal proceedings being opened per year, out of which a third resulted in a conviction. As regards the penalties applied, a term of imprisonment usually exceeding three months was imposed in 65 to 75% of the cases, of which 15 to 25% were not suspended on probation. According to information given by the Federal Minister of Justice in reply to a parliamentary question, in the year 2001 three persons were serving a term of imprisonment based only or mainly on a conviction under Article 209 of the Criminal Code and four others were held in detention on remand in proceedings relating exclusively to charges under Article 209.", "21. On 10 July 2002, following the Constitutional Court 's judgment of 21 June 2002 (see below), Parliament decided to repeal Article 209. It also introduced Article 207b, which penalises sexual acts with a person under 16 years of age if that person is for certain reasons not mature enough to understand the meaning of the act and the offender takes advantage of this immaturity or if the person under 16 is in a predicament and the offender takes advantage of that situation. Article 207b also penalises inducing persons under 18 years of age to engage in sexual activities in return for payment. Article 207b applies irrespective of whether the sexual acts at issue are heterosexual, homosexual or lesbian. The above amendment, published in the Official Gazette ( Bundesgesetzblatt ) no. 134/2002, came into force on 14 August 2002.", "22. According to the transitional provisions, the amendment does not apply to criminal proceedings in which the judgment at first instance has already been given. It does exceptionally apply, subject to the principle of the application of the more favourable law, where a judgment is set aside, inter alia, following the reopening of the proceedings or in the context of a renewal of the proceedings following the finding of a violation of the Convention by the European Court of Human Rights. Apart from these situations, convictions under Article 209 remain unaffected by the amendment.", "B. Proceedings before the Constitutional Court", "23. In a judgment of 3 October 1989, the Constitutional Court found that Article 209 of the Criminal Code was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein. That judgment was given upon the complaint of a person who subsequently brought his case before the Commission (see Zukrigl v. Austria, no. 17279/90, Commission decision of 13 May 1992, unreported).", "24. The relevant passage of the Constitutional Court 's judgment reads as follows:", "“The development of the criminal law in the last few decades has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders, which have become known under the general heading of 'decriminalisation'. This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied. The criminal provision which has been challenged relates to the group of acts declared unlawful in order to protect – in so far as strictly necessary – a young, maturing person from developing sexually in the wrong way. ('Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ...' Pallin, in Foregger/Nowakowski (publishers), Wiener Kommentar zum Strafgesetzbuch, 1980, paragraph 1 on Article 209 ...) Seen in this light, it is the conviction of the Constitutional Court that from the point of view of the principle of equality contained in Article 7 § 1 of the Federal Constitution and Article 2 of the Basic Law those legislating in the criminal sphere cannot reasonably be challenged for taking the view, by reference to authoritative expert opinions coupled with experience gained, that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age, and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males, as provided for under Article 209 of the Criminal Code. This conclusion was also based on their views of morality, which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences (while carefully weighing up all the manifold advantages and disadvantages). Taking everything into account, we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of Article 7 § 1 of the Federal Constitution read in conjunction with Article 2 of the Basic Law.”", "25. On 29 November 2001 the Constitutional Court dismissed the Innsbruck Regional Court 's request to review the constitutionality of Article 209 of the Criminal Code.", "26. The Regional Court had argued, inter alia, that Article 209 violated Articles 8 and 14 of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which the Constitutional Court had relied in its previous judgment had since been refuted. The Constitutional Court found that the issue was res judicata. It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew, if there was a change in the relevant circumstances or different legal argument. However, the Regional Court had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age-limit for consensual homosexual relations than for consensual heterosexual or lesbian relations.", "27. On 21 June 2002, upon a further request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional.", "28. The Regional Court had argued, firstly, as it had done previously, that Article 209 of the Criminal Code violated Articles 8 and 14 of the Convention and, secondly, that it was incompatible with the principle of equality under constitutional law and with Article 8 of the Convention, as a relationship between male adolescents aged between 14 and 19 was first legal, but became punishable as soon as one reached the age of 19 and became legal again when the second one reached the age of 18. The Constitutional Court held that the second argument differed from the arguments which it had examined in its judgment of 3 October 1989 and that it was therefore not prevented from considering it. It noted that Article 209 concerned only consensual homosexual relations between men aged over 19 and adolescents between 14 and 18. In the 14 to 19 age bracket homosexual acts between persons of the same age (for instance two 16-year-olds) or of persons with a one- to five-year age difference were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209 of the Criminal Code. They became legal again when the younger partner reached the age of 18. Given that Article 209 did not only apply to occasional relations but also covered ongoing relationships, it led to rather absurd results, namely a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again and could therefore not be considered to be objectively justified.", "C. Parliamentary debate", "29. In the spring of 1995 the Social Democratic Party, the Green Party and the Liberal Party brought motions in Parliament to repeal Article 209 of the Criminal Code. They argued in particular that in the 1970s the legislator had justified this provision on the theory that male adolescents were at a risk of being recruited into homosexuality while female adolescents were not. However, modern science had shown that sexual orientation was already established at the beginning of puberty. Moreover, different ages of consent were not in line with European standards. In this connection they referred in particular to Recommendation 924 (1981) of the Parliamentary Assembly of the Council of Europe which had advocated equal ages of consent for heterosexual and homosexual relations. Protection of juveniles against sexual violence and abuse was sufficiently afforded by other provisions of the Criminal Code, irrespective of their sexual orientation.", "30. Subsequently, on 10 October 1995, a sub-committee of the Legal Affairs Committee of Parliament heard evidence from eleven experts in various fields such as medicine, sexual science, Aids prevention, developmental psychology, psychotherapy, psychiatry, theology, law and human rights law. Nine were clearly in favour of repealing Article 209, an important argument for the experts in the fields of medicine, psychology and psychiatry being that sexual orientation was, in the majority of cases, established before the age of puberty, which disproved the theory that male adolescents were recruited into homosexuality by homosexual experiences. Another recurring argument was that penalising homosexual relations made Aids prevention more difficult. Two experts were in favour of keeping Article 209: one simply stated that he considered it necessary for the protection of male adolescents; the other considered that despite the fact that there was no such thing as being recruited into homosexuality, not all male adolescents were already sure of their sexual orientation and it was therefore better to give them more time to establish their identity.", "31. On 27 November 1996 Parliament held a debate on the motion to repeal Article 209 of the Criminal Code. Those speakers who were in favour of repealing Article 209 relied on the arguments of the majority of the experts heard in the sub-committee. Of those speakers who were in favour of keeping Article 209, some simply expressed their approval while others emphasised that they still considered the provision necessary for those male adolescents who were not sure of their sexual orientation. There was an equal vote at the close of the debate (ninety-one to ninety-one). Consequently, Article 209 remained on the statute book.", "32. On 17 July 1998 the Green Party again brought a motion before Parliament to repeal Article 209 of the Criminal Code. The ensuing debate followed much the same lines as before. The motion was rejected by eighty-one votes to twelve.", "33. On 10 July 2002 Parliament decided to repeal Article 209 of the Criminal Code (see paragraph 21 above).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14", "34. The applicants complained of the maintenance in force of Article 209 of the Criminal Code, which criminalises homosexual acts of adult men with consenting adolescents between the ages of 14 and 18, and of their convictions under that provision. Relying on Article 8 of the Convention taken alone and in conjunction with Article 14, they alleged that their right to respect for their private life had been violated and that the contested provision was discriminatory, as heterosexual or lesbian relations between adults and adolescents in the same age bracket were not punishable.", "Article 8 provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "35. Given the nature of the complaints, the Court deems it appropriate to examine the case directly under Article 14 taken in conjunction with Article 8.", "36. It is not in dispute that the present case falls within the ambit of Article 8, concerning as it does a most intimate aspect of the applicants' private life (see, for instance, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52, and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999-VI). Article 14 is therefore applicable.", "37. The applicants submitted that, following the Court's admissibility decision in the present case, the Austrian Constitutional Court declared Article 209 of the Criminal Code to be unconstitutional and that subsequently Parliament decided to repeal this provision. However, the Constitutional Court 's judgment, which is based on other grounds than those relied on in the present application, has not acknowledged, let alone afforded redress for, the alleged breach of the Convention. Moreover, their convictions still stood. The applicants therefore argued that they were still victims, within the meaning of Article 34 of the Convention, of the violation alleged. Nor can it be said that merely repealing the contested legislation has resolved the matter within the meaning of Article 37 § 1 (b) of the Convention.", "38. The applicants asserted that in Austria, like in the majority of European countries, heterosexual and lesbian relations between adults and consenting adolescents over 14 years of age were not punishable. They submitted that, in the context of consensual relations with adults, there was nothing to indicate that adolescents needed more protection against homosexual relations than against heterosexual or lesbian relations. Not only was Article 209 of the Criminal Code unnecessary for protecting male adolescents in general, it also hampered homosexual adolescents in their development by attaching a social stigma to their relations with adult men and to their sexual orientation in general. In this connection, the applicants, referring to the Court's case-law, contended that any interference with a person's sexual life and any difference in treatment based on sex or sexual orientation required particulary weighty reasons ( see Smith and Grady, cited above, § 94, and A.D.T. v. the United Kingdom, no. 35765/97, § 36, ECHR 2000-IX).", "39. This was all the more true in a field where a European consensus existed to reduce the age of consent for homosexual relations. Despite the fact that a European consensus had been growing ever since the introduction of their applications, the Government had failed to come forward with any valid justification for upholding, until very recently, a different age of consent for male homosexual relations than for heterosexual or lesbian relations. In particular, the applicants pointed out that in April 1997, in September and December 1998, and again in July 2001, the European Parliament had requested Austria to repeal Article 209. Similarly, in November 1998, the Human Rights Committee, set up under the International Covenant on Civil and Political Rights, had found that Article 209 was discriminatory. The Parliamentary Assembly of the Council of Europe had issued two recommendations in 2000 advocating equal ages of consent for heterosexual, lesbian and homosexual relations and a number of member States of the Council of Europe had recently introduced equal ages of consent.", "40. Further, the applicants pointed out that the Commission, in Sutherland v. the United Kingdom (no. 25186/94, Commission's report of 1 July 1997, unpublished) had departed from its earlier case-law relied on by the Government. In their view, the difference between the present applications and Sutherland was not decisive, as the fact that under the United Kingdom law in force at the material time the adolescent partner was also punishable was only referred to by the Commission as a subsidiary argument. As to the Government's further argument that Article 209 had been considered necessary for the protection of male adolescents, they submitted that the great majority of scientific experts whose evidence had been heard in Parliament in 1995 had disagreed with this view.", "41. The Government drew attention to the recent amendment of the Criminal Code. They asserted that, in the applicants' cases, there were no changes as a result of the new legal position. The Government therefore stated that their position remained unchanged and maintained their previous submissions.", "42. The Government referred to the Constitutional Court's judgment of 3 October 1989 and to the case-law of the Commission (see Zukrigl, decision cited above, and H.F. v. Austria, no. 22646/93, Commission decision of 26 June 1995, unreported), pointing out that the Commission had found no indication of a violation of Article 8 of the Convention either taken alone or in conjunction with Article 14 in respect of Article 209 of the Austrian Criminal Code. As to Sutherland (cited above), the Government pointed out that there was an important difference, namely that under Article 209 the adolescent participating in the offence was not punishable. Moreover, they referred to the fact that, in 1995, Parliament had heard numerous experts and had discussed Article 209 extensively with a view to abolishing it, but had decided to uphold it, as the provision was still considered necessary, within the meaning of Article 8 § 2 of the Convention, for the protection of male adolescents.", "43. The Court notes at the outset that, following the Constitutional Court 's judgment of 21 June 2002, Article 209 of the Criminal Code was repealed on 10 July 2002. The amendment in question came into force on 14 August 2002. However, this development does not affect the applicants' status as victim within the meaning of Article 34 of the Convention. In this connection, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a victim unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for instance, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). In the present case it is sufficient to note that the applicants were convicted under the contested provision and that their respective convictions remain unaffected by the change in the law. Thus, as the applicants rightly pointed out, it cannot be said that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention.", "44. According to the Court's established case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. However, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, pp. 32 ‑ 33, § 24; Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 29, ECHR 1999-IX; and Fretté v. France, no. 36515/97, §§ 34 and 40, ECHR 2002-I).", "45. The applicants complained of a difference in treatment based on their sexual orientation. In this connection, the Court reiterates that sexual orientation is a concept covered by Article 14 (see Salgueiro da Silva Mouta, cited above, § 28). Just like differences based on sex (see Karlheinz Schmidt, cited above, ibid., and Petrovic v. Austria, judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, p. 587, § 37), differences based on sexual orientation require particularly serious reasons by way of justification (see Smith and Grady, cited above, § 90).", "46. The Government asserted that the contested provision served to protect the sexual development of male adolescents. The Court accepts that the aim of protecting the rights of others is a legitimate one. It remains to be ascertained whether there existed a justification for the difference of treatment.", "47. The Court observes that in previous cases relied on by the Government which related to Article 209 of the Austrian Criminal Code, the Commission found no violation of Article 8 of the Convention either taken alone or in conjunction with Article 14. However, the Court has frequently held that the Convention is a living instrument, which has to be interpreted in the light of present-day conditions (see, for instance, Fretté, cited above, ibid.) In Sutherland, the Commission, having regard to recent research according to which sexual orientation is usually established before puberty in both boys and girls and to the fact that the majority of member States of the Council of Europe have recognised equal ages of consent, explicitly stated that it was “opportune to reconsider its earlier case-law in the light of these modern developments” (Commission's report cited above, §§ 59-60). It reached the conclusion that in the absence of any objective and reasonable justification the maintenance of a higher age of consent for homosexual acts than for heterosexual ones violated Article 14 taken in conjunction with Article 8 (ibid., § 66).", "48. Furthermore, the Court considers that the difference between Sutherland and the present case, namely that here the adolescent partner participating in the proscribed homosexual acts was not punishable, is not decisive. This element was only a secondary consideration in the Commission's report (ibid., § 64).", "49. What is decisive is whether there was an objective and reasonable justification why young men in the 14 to 18 age bracket needed protection against sexual relationships with adult men, while young women in the same age bracket did not need such protection against relations with either adult men or women. In this connection the Court reiterates that the scope of the margin of appreciation left to the Contracting State will vary according to the circumstances, the subject matter and the background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, for instance, Petrovic, cited above, § 38, and Fretté, cited above, § 40).", "50. In the present case the applicants pointed out, and this has not been contested by the Government, that there is an ever growing European consensus to apply equal ages of consent for heterosexual, lesbian and homosexual relations. Similarly, the Commission observed in Sutherland (cited above) that “equality of treatment in respect of the age of consent is now recognised by the great majority of member States of the Council of Europe” (loc. cit., § 59).", "51. The Government relied on the Constitutional Court's judgment of 3 October 1989, which had considered Article 209 of the Criminal Code necessary to avoid “a dangerous strain ... be[ ing ] placed by homosexual experiences upon the sexual development of young males”. However, this approach has been outdated by the 1995 parliamentary debate on a possible repeal of that provision. As was rightly pointed out by the applicants, the vast majority of experts who gave evidence in Parliament clearly expressed themselves in favour of an equal age of consent, finding in particular that sexual orientation was in most cases established before the age of puberty and that the theory that male adolescents were “recruited” into homosexuality had thus been disproved. Notwithstanding its knowledge of these changes in the scientific approach to the issue, Parliament decided in November 1996, that is, shortly before the applicants' convictions, in January and February 1997 respectively, to keep Article 209 on the statute book.", "52. To the extent that Article 209 of the Criminal Code embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot of themselves be considered by the Court to amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour (see Smith and Grady, cited above, § 97).", "53. In conclusion, the Court finds that the Government have not offered convincing and weighty reasons justifying the maintenance in force of Article 209 of the Criminal Code and, consequently, the applicants' convictions under this provision.", "54. Accordingly, there has been a violation of Article 14 of the Convention taken in conjunction with Article 8.", "55. Having regard to the foregoing considerations, the Court does not consider it necessary to rule on the question whether there has been a violation of Article 8 taken alone.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "56. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "57. The applicants each requested 1,000,000 Austrian schillings, equivalent to 72,672.83 euros (EUR), as compensation for non-pecuniary damage. They asserted that they had suffered feelings of distress and humiliation due to the maintenance in force of Article 209 of the Criminal Code and, in particular, the criminal proceedings against them resulting in their convictions, which stigmatised them as sexual offenders. Furthermore, the first applicant submitted that he suffered from epilepsy, which had increased his anxiety and suffering during the trial, and that he had lost his work as a result of his conviction.", "58. The Government contended that the finding of a violation would in itself afford the applicants sufficient just satisfaction for any non-pecuniary damage sustained.", "59. The Court observes that, in a number of cases concerning the maintenance in force of legislation penalising homosexual acts between consenting adults, it considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained (see Dudgeon v. the United Kingdom (Article 50), judgment of 24 February 1983, Series A no. 59, pp. 7-8, § 14; Norris v. Ireland, judgment of 26 October 1988, Series A no. 142, pp. 21-22, § 50; and Modinos v. Cyprus, judgment of 22 April 1993, Series A no. 259, p. 12, § 30). However, in a case which concerned a conviction for homosexual acts with a number of consenting adults ( A.D.T. v. the United Kindgom, cited above, §§ 43-45), the Court awarded 10,000 pounds sterling (GBP) in respect of non-pecuniary damage. Similarily, in cases which concerned investigations in respect of the applicants resulting in their discharge from the army on account of their homosexuality, the Court awarded GBP 19,000 to each applicant for non-pecuniary damage (see Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 13, ECHR 2000-IX).", "60. In the present case, the Court notes that Article 209 of the Criminal Code has recently been repealed and that the applicants have therefore in part achieved the objective of their application. However, they were convicted under Article 209. The Court considers that the criminal proceedings and, in particular, the trial during which details of the applicant's most intimate private life were laid open in public, have to be considered as profoundly destabilising events in the applicants' lives which had and, it cannot be excluded, continue to have a significant emotional and psychological impact on each of them (see Smith and Grady (just satisfaction), ibid.). Making an assessment on an equitable basis, the Court awards the applicants EUR 15,000 each.", "B. Costs and expenses", "61. The applicants requested a total amount of EUR 65,590.93. This sum is composed of EUR 5,633.53 for costs and expenses incurred by the first applicant in the domestic proceedings, EUR 1,655.12 for costs and expenses incurred by the second applicant in the domestic proceedings and EUR 58,302.28 for costs and expenses incurred by both applicants in the Convention proceedings.", "62. Further, the applicants, in their submissions of 3 August 2002, asserted that following the Court's judgment further costs will have to be incurred in order to remove the consequences flowing from the violation of the Convention. They argued in particular that – in case of a finding of a violation by the Court – they will be entitled, pursuant to Article 363a of the Code of Criminal Procedure, to have the criminal proceedings reopened in order to have their convictions set aside and to have them removed from their criminal records. The applicants therefore requested the Court to rule that the respondent State was obliged to pay any future costs necessary for removing the consequences of the violation at issue and to reserve the fixing of the exact amount to a separate decision.", "63. The Government asserted that the amount claimed by the applicants was excessive. They submitted, in particular, that the applicants had failed to submit a detailed statement of costs as regards the domestic proceedings. Moreover, the second applicant had also been convicted of misappropriation. Accordingly, the domestic proceedings had not only been instituted for the offence under Article 209 of the Criminal Code. Further, the Government asserted that the applicants' counsel had not correctly applied the lawyers' fees as regards the Convention proceedings, and argued that it had not been necessary to submit two separate applications. The Government considered that a total amount of EUR 5,813.83 for costs and expenses would be appropriate as regards the first applicant and a total amount of EUR 4,142.35 as regards the second applicant.", "64. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see Smith and Grady (just satisfaction), cited above, § 28, with further references).", "65. As to the costs of the domestic proceedings, the Court notes that the applicants each submitted a bill of fees by the lawyer who represented them in the criminal proceedings, which indicates a lump sum for their defence. The diffence in the amounts claimed by the applicants is explained by the fact that, in the first applicant's case, two sets of criminal proceedings were instituted, as his first conviction had been partly set aside by the Supreme Court. The Court observes that in the first applicant's case the proceedings related only to Article 209 of the Criminal Code. The Court therefore finds that the entire costs were actually and necessarily incurred. Moreover, it finds that the amount claimed is reasonable and awards it in full, that is EUR 5,633.53. In the second applicant's case the Court, making allowance for the fact that the criminal proceedings against him related mainly to Article 209 but also to a minor count of misappropriation, awards EUR 1,500.", "66. As to the costs of the Convention proceedings, the Court considers them to be excessive. Making an assessment on an equitable basis, the Court awards each applicant EUR 5,000.", "67. The total amount awarded in respect of costs and expenses is, therefore, EUR 10,633.53 as regards the first applicant and EUR 6,500 as regards the second applicant.", "68. As to the applicants' request for future costs linked to removing the consequences of the violation of the Convention found, the Court considers that such a claim is speculative. The Court notes in particular that both applicants were sentenced to a prison term suspended on probation in 1997 and that the three-year probationary period has already expired. What remains is the entry of their convictions in their criminal records. In this situation it is open to doubt whether there will be any need for the applicants to have the criminal proceedings against them reopened, as the respondent State may well choose other means to have their convictions expunged. The respondent State may for instance decide to grant the applicants a pardon and have their convictions removed from their criminal records. Having regard to these circumstances, the Court dismisses the applicants' claim for future costs.", "C. Default interest", "69. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1957 and lives in London.", "10. The relevant facts of the case, as submitted by the parties, may be summarised as follows. The events described below took place between January 1998 and February 1999.", "11. The applicant contacted the police after he was attacked by a young man with whom he had had homosexual relations. He was arrested for allegedly engaging in buggery with a young man aged 16 years of age contrary to section 12(1) and schedule 2 of the Sexual Offences Act 1956. The applicant underwent a medical examination with his consent during which samples were taken and his residence was searched by police. He was released on police bail the following day and was subsequently formally charged.", "12. The applicant attended before the Magistrates' Court on four occasions and each time he was bailed to re-appear. During this period, the applicant wrote to the Crown Prosecution Service (CPS) and other government officials stating that the criminal proceedings against him violated his human rights, citing the case of Sutherland v. the United Kingdom ( no. 25186/94, Commission's report of 1 July 1997, unpublished ).", "13. The applicant subsequently requested leave to apply for judicial review of the CPS decision to prosecute him but this application was refused. His renewed application was later rejected by the High Court. Following a hearing at the Magistrates' Court, the applicant was committed for trial at the Central Criminal Court. He appeared before the Central Criminal Court for a plea and directions hearing and for a hearing on various matters including his request for the trial to be postponed in order to allow him more time to prepare.", "14. The CPS later advised the applicant by letter that it had decided not to proceed with the case against him and that he should accordingly attend the Central Criminal Court on a particular date. On that date he was formally acquitted by that court. The trial judge asked the applicant if he would like to make a claim for costs but, following a brief discussion, the applicant decided not to make any claim on the grounds that, in his view, the CPS were “quibbling” over the amount to be awarded." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The law applicable at the time of the relevant events", "15. Section 12(1) of the Sexual Offences Act 1956 (“the 1956 Act”) made it an offence for a person to commit buggery with another person. Pursuant to Section 13 of the 1956 Act it was an offence for a man to commit an act of “gross indecency” with another man, whether in public or private.", "16. Section 14(1) of the 1956 Act made it an offence for a person to commit indecent assault on a woman. Section 14(2) of the 1956 Act provided that a girl under the age of sixteen years of age could not give any consent which would prevent an act being an assault for the purposes of the section.", "17. Section 1 of the Sexual Offences Act 1967 (“the 1967 Act”) provided, inter alia, as follows:", "“(1) Notwithstanding any statutory or common law provision ... a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years. ...", "(7) For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act ...”", "18. The subsequent Criminal Justice and Public Order Act 1994 (“the 1994 Act”) replaced “twenty-one years” in the 1967 Act with “eighteen years”.", "B. The Sexual Offences (Amendment) Act 2000 (“the 2000 Act”)", "19. This Act entered into force on 8 January 2001. Section 1 reads:", "“(1) In the Sexual Offences Act 1956-", "(a) in subsections (1A) and (1C) of section 12 (buggery); and", "(b) in sub-paragraphs (a) and (b) of paragraph 16 (indecency between men etc.) of Schedule 2 (punishments etc.),", "for the word 'eighteen' there shall be substituted the word 'sixteen'.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION", "20. The applicant complained that he was discriminated against on the grounds of his sexual orientation by the existence of, and by his prosecution under, legislation that made it a criminal offence to engage in homosexual activities with men under 18 years of age whereas the age of consent for hetereosexual activities was fixed at 16 years of age. He also complained that he was discriminated against on the grounds of age by the decision to prosecute him while failing to prosecute the sixteen-year-old boy who would technically have been as guilty as he was of the same offence.", "Article 8 reads as follows:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14, in so far as relevant, provides as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, ... or other status.”", "A. The parties' submissions", "21. The applicant made extensive submissions including that the CPS and the domestic courts ignored his repeated warnings that the criminal proceedings against him violated his human rights and that his prosecution was contrary to the Commission's approach in the case of Sutherland v. the United Kingdom (cited above). He also drew the Court's attention to the cases of Wilde, Greenhalgh and Parry v. the United Kingdom (no. 22382/93, Commission decision of 19 January 1995 [striking out], unreported) and Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, § 58, ECHR 1999-VI respectively). He emphasised that the prosecution was discontinued, not out of respect for the Convention, but because the complainant declined to testify. He noted that many other people have been convicted of the offence for which he was prosecuted and have served prison sentences. The applicant recalled that the matter only came to the attention of the police because he reported being attacked by the complainant and he observes that, instead of being protected by the State, he was prosecuted in violation of the Convention. He also criticised the conduct of the proceedings. For instance, he suspected that the CPS deliberately told him that he was not required to attend a hearing at the Magistrates' Court so that they could request the court to proceed with his committal for trial and he further claims that the CPS deliberately delayed in informing him that the complainant had decided not to testify.", "22. The Government conceded that, on the facts of this application, the existence of, and prosecution of the applicant under, legislation providing for different ages of consent for homosexual and heterosexual activities constituted a violation of Article 14 taken together with Article 8 of the Convention. The Government recognised that it was regrettable that there was a policy of maintaining different ages of consent according to sexual orientation. The Government reminded the Court that the age of consent for homosexual and heterosexual activities had been equalised since 2001 and that they were now engaged in a comprehensive review of the law relating to sexual offences to ensure, inter alia, that legislation did not differentiate unnecessarily on the grounds of gender or sexual orientation. The Government further recalled that, although criminal proceedings were commenced against the present applicant, the CPS decided not to pursue the charges and he was formally acquitted.", "B. The Court's assessment", "1. Complaint of discrimination on the grounds of sexual orientation", "23. The Court recalls that, in the case of Sutherland v. the United Kingdom, the Commission was of the opinion that the existence of legislation making it a criminal offence to engage in male homosexual activities unless both parties had consented and attained the age of 18 while the age of consent for heterosexual activities was set at 16 years of age violated Article 14 of the Convention taken in conjunction with Article 8 ( Sutherland v. the United Kingdom, (striking out) [GC], no. 25186/94, 27 March 2001 and Commission's report of 1 July 1997, unpublished). The Court further recalls its finding of a violation of Article 14 taken in conjunction with Article 8 due to the existence of, and in one case the conviction of individuals under, legislation which criminalised homosexual activity with men of 14 to 18 years of age when no such criminal offence existed for heterosexual or lesbian relations ( S.L. v. Austria, no. 45330/99, 9 January 2003 and L. and V. v. Austria, nos. 39392/98 and 39829/98, 9 January 2003).", "24. The Court notes that, while domestic law has since been amended, the present applicant was prosecuted under legislation which made it a criminal offence to engage in homosexual activities with men under 18 years of age while the age of consent for heterosexual relations was fixed at 16 years of age. It further notes that the prosecution did not proceed with the case to trial and that the applicant was subsequently formally acquitted of the charges against him. The Government's concession outlined at paragraph 22 above is also noted. However, the Court considers that the circumstances of the present case are such that it should examine the applicant's complaints ( S.B.C. v. the United Kingdom, no. 39360/98, §§ 19 and 20, 19 June 2001, unreported).", "25. The Court sees no reason to reach a conclusion different to those reached in the cases of S.L. v. Austria and L. and V. v. Austria (cited above). It therefore finds that the existence of, and the applicant's prosecution under, the legislation applicable at the relevant time constituted a violation of Article 14 taken in conjunction with Article 8 of the Convention.", "2. Complaint of discrimination on the grounds of age", "26. In light of its finding of a violation of Article 14 of the Convention in conjunction with Article 8 on the basis of discrimination on the grounds of sexual orientation, the Court does not consider it necessary also to consider the applicant's complaint of discrimination on the grounds of age.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "27. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "28. The applicant made detailed submissions on just satisfaction. He claimed 2400 pounds sterling (“GBP”) in damages for the pecuniary loss he suffered as a result of his prosecution. The applicant submitted that he works as a freelance butler and was not able to work for 24 days as a result of attendance at police stations and court appearances and his inability to work on the day before and the evening of a court fixture due to distraction. He claimed that he could have earned GBP 100 per day.", "29. The applicant further claimed 31,000 euros (“EUR”) in damages for non-pecuniary loss. This was based on the sum of EUR 30,300 (plus inflation), considered by the applicant to be the highest award in the cases of military personnel discharged on the grounds of their homosexuality ( awards of GBP 19,000 to each applicant in Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, 25 July 2000, ECHR 2000-IX, and Lustig-Prean and Beckett (just satisfaction), nos. 31417/96 and 32377/96, 25 July 2000, and awards of EUR 30,300 to each applicant in Perkins and R. v. the United Kingdom, nos. 43208/98 and 44875/98, 22 October 2002, and Beck, Copp and Bazely v. the United Kingdom, nos. 48535/99, 48536/99 and 48537/99, 22 October 2002)", "30. The applicant claimed in respect of, inter alia, the psychological harm caused by his prosecution including the humiliation and anxiety he experienced, his fear of being sentenced to imprisonment and his concern about adverse media coverage and the resulting damage to his reputation. The applicant claims that his case was no better than that of L. and V. v. Austria (nos. 39392/98 and 39829/98, judgment of 9 January 2003) in which the applicants were convicted since the only reason his prosecution did not result in a conviction was because he ignored advice to plead guilty and wrote to the complainant asking him to withdraw his complaint. Therefore he should not receive any less in non-pecuniary damage than the applicants in that case who were awarded EUR 15,000. The applicant further noted that, in the case of S.L. v. Austria, the applicant was awarded EUR 5,000 simply due to the existence of similar discriminatory legislation although S.L. was never prosecuted. He also noted the award of GBP 10,000, following the finding of a violation of Article 8, to the applicant in A.D.T. v. the United Kingdom, who was convicted of gross indecency between men and received a conditional discharge. The applicant also cited the awards in the cases of Aydιn v. Turkey and B v. France ( Aydιn v. Turkey, judgment of 25 September 1997, Reports of Judgments and Decisions 1997-VI, p. 50 and B v. France, judgment of 25 March 1992, Series A no. 232-C).", "31. Finally the applicant claimed an increase of 50% as aggravated or punitive damages on the awards of pecuniary and non-pecuniary loss. He also requested the Court to make a number of consequential orders or award extra damages in their place. He submitted, inter alia, that the Court should order the Government to apologise to him, to offer reparation to all homosexuals and to strengthen the domestic legislation incorporating the Convention.", "32. The Government maintained that the Court should not make any award for pecuniary damage since the applicant had produced no evidence to show that it was likely that he would have obtained work or would have been paid the figures he quotes. With respect to non-pecuniary damage, the Government emphasised the fact that the criminal proceedings against the applicant had been discontinued and that he had been neither convicted nor sentenced. The Government submitted that a finding of a violation of the Convention would constitute sufficient just satisfaction. Were the Court to make any award in respect of non-pecuniary damage, it should, in the Government's view, be no more than GBP 2000. The Government noted that several of the cases cited by the applicant were considerably more serious than his own. In the cases of L. and V. v. Austria and A.D.T. v. the United Kingdom (cited above), the applicants were subject to criminal proceedings and had been convicted and sentenced. In S.L. v. Austria the applicant was hampered in his sexual development and suffered feelings of distress and humiliation throughout his adolescence. The comparison with the cases of discharged military personnel was, according to the Government, misplaced: in those cases, the applicants had been deprived of their careers in which they excelled, in which they were destined for further promotion and from which they derived considerable job satisfaction. The remaining cases cited by the applicant were materially different from his case, involving the rape of the applicant by a State official while in police custody ( Aydιn v. Turkey, cited above) and the failure of the State to register the applicant transsexual as a woman thereby preventing her from marrying ( B v. France, cited above). The Government further submitted that the Court has no jurisdiction to make consequential orders in the form of directions or recommendations to Contracting States and that therefore, the applicant's remaining claims should not be allowed.", "33. As regards the applicant's claim for pecuniary loss, the Court recalls that its case-law establishes that there must be a clear causal connection between the violation of the Convention established and the damage claimed by the applicant (for example, Barberà, Messegué and Jabardo v. Spain, judgment of 13 June 1994 (Article 50), Series A no. 285-C, §§ 16-20). The Court observes that the applicant works on a freelance basis and has not presented any evidence to show that he had been offered work which he then rejected or that it was likely that he would have obtained work or to substantiate the sums he claims he would have earned. In these circumstances, no award is made in respect of pecuniary damage.", "34. Turning to the applicant's claim for non-pecuniary damage, the Court initially observes that, in a number of cases concerning the maintenance in force of legislation penalising homosexual acts between consenting adults, it considered that the finding of a violation in itself constituted sufficient just satisfaction for any non-pecuniary damage suffered (see the Dudgeon v. the United Kingdom judgment (just satisfaction) of 24 February 1983, Series A no. 59, pp. 7-8, § 14; the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, pp. 21-22, § 50; and the Modinos v. Cyprus judgment of 22 April 1993, Series A no. 259, p. 12, § 30). However, the Court notes that in the more recent case of S.L. v. Austria, the Court awarded EUR 5000 where the existence of the discriminatory legislation meant that the applicant was prevented from entering into sexual relations with men until the age of eighteen. Awards for non-pecuniary damage were also made in cases where discriminatory legislation resulted in the prosecution of the applicants. However, the Court notes that the two cases cited by the applicant in which the Court made awards of EUR 15,000 and GBP 10,000 involved not only the prosecution, but also the conviction of the applicants and the imposition of a sentence, in the former case a suspended sentence of imprisonment and in the latter a conditional discharge, following a trial in which details of the applicants' most intimate private life were laid open in public (respectively L. and V. v. Austria and A.D.T. v. the United Kingdom, both cited above). The Court further notes that in the cases involving the discharge of military personal on account of their homosexuality, the investigations carried out were of an exceptionally intrusive character, the discharge had a profound effect on the careers and prospects of the applicants and the policy was of an absolute and general nature so that the applicants were discharged due to an innate personal characteristic irrespective of their conduct or service records ( Smith and Grady v. the United Kingdom (just satisfaction), Lustig-Prean and Beckett (just satisfaction), Perkins and R. v. the United Kingdom and Beck, Copp and Bazely v. the United Kingdom, all cited above). Finally the Court considers that the facts and violations in the cases of Aydιn v. Turkey and B v. France are sufficiently different as not to be of any real relevance.", "35. The Court notes that, in the present case, the applicant was prosecuted under the relevant legislation found to be in violation of the Convention. He was also committed for trial. While the CPS later discontinued the case before trial and the applicant was formally acquitted of all charges, the Court recognises the anxiety and distress that the prosecution must have caused the applicant. Making an assessment on an equitable basis, the Court awards the applicant EUR 7000 to be converted to pounds sterling at the date of settlement.", "36. The Court recalls that it does not award aggravated or punitive damages (for example, Cable and Others v. the United Kingdom [GC] nos. 24436/94 etc., § 30, 18 February 1999, unreported ).", "37. The Court further recalls that it cannot make orders of the type requested by the applicant in paragraph 31 (for example, Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, § 34, Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, § 125 and Finucane v. the United Kingdom, no. 29178/95, §§ 88-90, 1 July 2003).", "B. Costs and expenses", "38. The applicant claimed EUR 10,000 for his legal work: EUR 5000 in relation to the domestic criminal and judicial review proceedings and EUR 5000 in relation to the Convention proceedings. He further claimed GBP 800 including interest for various expenses: GBP 200 for an initial consultation with solicitors about the criminal proceedings, GBP 70 for the fee paid for his judicial review application, GBP 247.67 for transcripts and other documents relating to the domestic proceedings, GBP 100 for photocopying, GBP 100 for telephone, facsimile and internet costs, GBP 20 for postage and GBP 50 for bicycle trips to the law library. The applicant also claimed an increase of 50% of these amounts as aggravated or punitive damages.", "39. The Government submitted that the applicant is not entitled to claim costs for the time he spent on his application nor the costs of bike journeys since they were not costs actually and necessarily incurred. As to the remaining items, the Government maintained that the Court should award no more than GBP 400 to 500 on the grounds, inter alia, that the applicant failed to produce any evidence to support his claims and abandoned his claim for costs in the domestic criminal proceedings.", "40. The Court recalls that it will award legal costs and expenses only if satisfied that these were actually and necessarily incurred and reasonable as to quantum.", "The sum claimed by the applicant in respect of the time spent by him preparing his submissions for the domestic and Convention proceedings cannot be taken into consideration since the applicant presented his own case ( Brincat v. Italy, judgment of 26 November 1992, Series A no. 249-A, § 29). As to the costs of the domestic proceedings, the Court notes that the applicant was invited to make a claim for costs following his acquittal but decided not to pursue his claim. In these circumstances, the Court does not find it appropriate to make any award in respect of these costs. However, it is clear that the applicant did incur costs in obtaining documents for his case before this Court and various other expenses including photocopying, facsimile transmissions and postage. Taking into account all of these circumstances, the Court awards the applicant EUR 600 in respect of his costs and expenses to be converted into pounds sterling at the date of settlement.", "C. Default interest", "41. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "15. The applicants are Romanian nationals of Roma origin. They used to live in the village of Hădăreni, in the Mureş district, and are agricultural workers. After the events described below, some applicants returned to live in Hădăreni, while others, who are homeless, live in various parts of the country. Mr Iulius Moldovan is currently living in Spain and Mrs Maria Floarea Zoltan is living in the United Kingdom.", "16. The facts of the case, as submitted by the parties, may be summarised as follows:", "A. The incident in 20 September 1993", "17. On the evening of 20 September 1993 a row broke out in a bar in the centre of the village of Hădăreni (Mureş district). Rapa Lupian Lăcătuş and Aurel Pardalian Lăcătuş, two Roma brothers, along with another Rom, Mircea Zoltan, began to argue with a non-Rom, Cheţan Gligor. The verbal confrontation developed into a physical one which ended with the death of Cheţan Crăciun, who had come to the aid of his father. The three Roma then fled the scene and sought refuge in a neighbour's house.", "18. Soon afterwards, news of the incident spread and a large number of villagers learned of Cheţan Crăciun's death. Enraged, they gathered together to find the Roma. The angry mob arrived at the house where the three were hiding and demanded that they come out. Among the crowd were members of the local police force in Hădăreni, including the Chief of Police Ioan Moga, and Sergeant Alexandru Şuşcă, who had heard of the incident. When the brothers refused to come out, the crowd set fire to the house. As the fire engulfed the house, the brothers tried to flee but were caught by the mob who beat and kicked them with vineyard stakes and clubs. The two brothers died later that evening. Mircea Zoltan remained in the house, where he died in the fire. It appears that the police officers present did nothing to stop these attacks. The applicants alleged that, on the contrary, the police also called for and allowed the destruction of all Roma property in Hădăreni.", "19. Later that evening the villagers decided to vent their anger on all the Roma living in the village and proceeded to burn the Roma homes and property in Hădăreni, including stables, cars and goods. The riots continued until the following day. In all, thirteen Roma houses belonging to the applicants were destroyed.", "The individual applicants made the following allegations:", "1. Iulius Moldovan", "20. The applicant alleged that it was on his property that the three Roma were killed on 20 September 1993. His home and other property were set on fire and destroyed.", "2. Melenuţa Moldovan", "21. The applicant alleged that her house and various personal possessions were destroyed by the fire.", "3. Maria Moldovan", "22. The applicant alleged that, on the evening of 20 September 1993, an angry mob had appeared at her door, entered the house and destroyed all her belongings. The mob had then proceeded to set fire to her home and she had watched as the flames destroyed it. The next day, when she had returned home with her husband and daughter, she had been met by an enraged mob of villagers who had prevented her from entering the house. Police officers Ioan Moga, Alexandru Şuşcă and Florin Nicu Drăghici had taken hold of her, sprayed pepper in her face and then proceeded to beat her badly. Costică Moldovan had witnessed these events. Colonel Drăghici had also fired at Costică Moldovan and his family as they tried to return home to fetch their pigs. The applicant declared that her house had been damaged and that she had lost valuables and other possessions.", "4. Otilia Rostaş", "23. The applicant alleged that on the evening of 20 September 1993 she had learned from her eleven-year-old daughter what was happening in Hădăreni. Her daughter had told her that a neighbour had said that the non-Roma villagers wanted to kill all the Gypsies in retaliation for the death of Cheţan Crăciun.", "24. Fearing for the safety of her children, the applicant had taken them to her mother's house. Later that evening, when she returned, she witnessed several people gathered in front of the courtyard throwing stones and pieces of wood and eventually setting her house on fire. As she ran back to her mother's house, she saw three people armed with clubs, urging the mob to set fire to it. Within minutes, her mother's home was in flames.", "25. The following day the applicant had attempted to return to what was left of her home to assess the damage. As she approached her property, she had been threatened verbally and physically by an angry mob of non-Roma villagers and police officers. One villager had threatened her with a shovel and others had violently thrown rocks at her. The villagers, including the police officers present, had prevented her from entering what remained of her home. Fearing for her safety, the applicant and her children had left Hădăreni.", "26. Later that day she had once again attempted to return to her home along with other Roma villagers. This time the applicant had found the road to her house entirely blocked by an even larger crowd of villagers, all of whom had been carrying clubs. Police officers had also been among the crowd. Among the enraged mob of villagers, the applicant had recognised Officer Nicu Drăghici, who was holding a truncheon. A police car had even pursued the applicant and other Roma trying to return to their homes, firing shots at them and shouting at them to leave the village. The applicant alleged that her house had been destroyed and that she had lost valuable goods.", "5. Petru (Gruia) Lăcătuş", "27. Petru (Gruia) Lăcătuş alleged that his house had been destroyed, as had the three cars he had had in the courtyard.", "6. Floarea Maria Zoltan", "28. The applicant stated that, on the night of 20 September 1993, her husband, Mircea Zoltan, and her two brothers, Rapa Lupian Lăcătuş and Aurel Pardalian Lăcătuş, had been brutally murdered in the Hădăreni pogrom. She alleged that one of the thirteen Roma houses set on fire that evening had belonged to her late mother, Cătălina Lăcătuş.", "7. Petru (Dîgăla) Lăcătuş", "29. The applicant alleged that his house had been destroyed and that he had lost valuable goods. His wife had been pregnant at the time of the incident and, because she had been beaten and had experienced severe fear, the baby had been born with brain damage.", "B. The investigation into the incident", "30. In the aftermath of the incident the Roma residents of Hădăreni lodged a criminal complaint with the Public Prosecutors' Office. The complainants identified a number of individuals responsible for what had occurred on 20 September 1993. Among those identified were several police officers: Chief of Police Ioan Moga, his assistant Sergeant Alexandru Şuşcă, Colonel Florentin Nicu Draghici, a certain Panzaru from Luduş, and Lieutenant Colonel Constantin Palade, the Mureş County Chief of Police.", "31. Thereafter, an investigation was initiated which identified the offenders who had actively participated in the killing of the Lăcătuş brothers and Mircea Zoltan, and the destruction of Roma houses and other property.", "32. On 21 July 1994 three civilians – P.B., I.B. and N.G. - were remanded in custody. They were charged with extremely serious murder (under Articles 174 and 176 of the Criminal Code) and arson (under Article 217 § 4 of the Criminal Code). However, a few hours later they were released and all warrants for their arrest were set aside by order of the General Prosecutor.", "33. By an order of 31 October 1994, on the basis of ample evidence that suggested police involvement in the incident, the case was sent to the Târgu-Mureş Military Prosecutors' Office, which had jurisdiction to investigate crimes committed by police officers. According to the order of the Public Prosecutors' Office of the Târgu-Mureş Court of Appeal, Lieutenant Colonel Palade had organised a small meeting with non-Roma villagers after the incident, advising them “not to tell anyone what the police had done if they wanted the incident to be forgotten and not have any consequences for themselves.”", "34. By a resolution dated 15 November 1994, the Târgu-Mureş Military Prosecutors' Office ordered an extension of the investigation and the initiation of a criminal investigation in respect of Chief of Police Moga and Sergeant Şuşcă. According to the military prosecutor, the evidence produced so far indicated that these persons had incited the villagers to commit acts of violence against the Lăcătuş brothers and had even directly participated in setting fire to certain houses. On the basis of oral evidence, the prosecutor found that officers Moga and Şuşcă had participated in the events and “repeatedly” incited the villagers to take action against the men barricaded in the house, telling them to “set them on fire, because we cannot do anything to them”. Moreover, he found that Lieutenant Colonel Palade had required the inhabitants of Hădăreni “not to tell anyone anything about the actions of the police officers, and everything will be forgotten and you shall bear no consequences.”", "35. On 10 January 1995, having regard to the involvement of Colonel Palade, the Târgu-Mureş Military Prosecutor declined jurisdiction to investigate the case and referred it to the Bucharest Territorial Military Prosecutors' Office.", "36. On 22 August 1995 Colonel Magistrate M.S., the military prosecutor at the Bucharest Military Court, decided not to open a criminal investigation, stating that the evidence produced in the case had not confirmed the participation of Chief of Police Moga, Lieutenant Colonel Palade or Sergeant Şuşcă in the crimes committed during the riots. As to the statements made by various witnesses confirming the involvement of these police officers, the prosecutor found that one of them had been made by the sister of two of the victims and, given the fact that the officers had punished the victims several times, her evidence was obviously tendentious. The prosecutor found the other oral evidence confused. He concluded that the police officers could not be accused of having committed crimes, “even though one should accept that during the events they had used words such as 'do what you want, I have a family to take care of' or 'they will come out immediately if you set the house on fire'. Moreover, we cannot consider the lack of initiative and the inability of the two policemen to influence the behaviour of the furious villagers as a form of participation – either in the form of instigation or as possible moral complicity.”", "37. In September 1995, the Head of the Bucharest Territorial Military Prosecutors' Office upheld the decision, refusing to open an investigation, and all charges against the police officers were dropped. An appeal lodged by the injured parties was dismissed by the Military Prosecutors' Office of the Supreme Court of Justice.", "38. On 12 August 1997, the Public Prosecutor of the Târgu-Mureş Court of Appeal issued an indictment charging eleven civilians suspected of having committed crimes on 20 September 1993.", "39. Certain testimonies confirmed that the police had promised the villagers involved in the riot that they would help to cover up the entire incident. Several defendants testified that two police cars driving to the scene of the incident that night had ordered, over their loudspeakers, that the house where the three Roma victims were hiding be set on fire.", "40. On 11 November 1997 a criminal trial, in conjunction with a civil case for damages, began against the civilian defendants in the Târgu-Mureş County Court. During these proceedings, the applicants learned of the overwhelming extent of the evidence against the police. Various witnesses testified that police officers had not only been present that evening but had actually instigated the incident and then stood idly by as the two Lăcătuş brothers and Mircea Zoltan were killed and Roma houses destroyed. In this connection, witnesses cited the names of Chief of Police Moga, Colonel Drăghici and Sergeant Şuşcă.", "41. In the light of numerous testimonies implicating additional individuals – both civilians and police officers – the applicants' lawyer asked the court to extend the indictment of 12 August 1997. As a result, the civilian prosecutor sent the relevant military prosecutor the information on which to base proceedings before a military court against the officers concerned.", "42. The applicants Iulius Moldovan and Floarea Zoltan asked the court in writing to extend the criminal charges. According to them, the prosecutor refused to do so.", "43. On 23 June 1998 the Târgu-Mureş County Court severed the civil and the criminal case because the criminal investigation had already lasted four years and the determination of the civil aspect would take even longer.", "C. The judgment of 17 July 1998 and the decisions on appeal", "44. On 17 July 1998 the Târgu-Mureş County Court delivered its judgment in the criminal case. It noted the following:", "“The village of Hădăreni, belonging to the commune of Cheţani, is situated in the south-west Mureş district on the main road between Târgu-Mureş and Cluj and has a population of 882 inhabitants, of which 641 are Romanians, 145 Hungarians and 123 Roma.", "The Roma community represents 14% of the total population and the marginal lifestyle of some categories of Roma, especially the ones who settled in the village after 1989, has often generated serious conflicts with the majority of the population.", "Due to their lifestyle and their rejection of the moral values accepted by the rest of the population, the Roma community has marginalised itself, shown aggressive behaviour and deliberately denied and violated the legal norms acknowledged by society.", "Most of the Roma have no occupation and earn their living by doing odd jobs, stealing and engaging in all kinds of illicit activities. As the old form of common property that gave them equal rights with the other members of the community was terminated, the Roma population were allocated plots of land. However, they did not work the land and continued to steal, to commit acts of violence and to carry out attacks, mainly against private property, which has generated even more rejection than before.", "Groups of Roma have started arguments with the young people in the village, attacked them or stolen their goods and money.", "Moreover, they ostentatiously use insults, profanities and vulgar words in public places. ...", "The records of the criminal-investigation authorities and of the courts of law in Mureş County disclose that seven criminal cases were registered between 1991 and 1993, having as their object acts of violence ranging from simple blows to murder.", "In fact, the real number of the crimes committed by the Roma was much higher, but many of them were not judged in court because the injured parties did not file complaints, withdrew them or made peace with the perpetrators, for fear of vindictive threats by the Roma.", "The community feels that most of the disputes were solved in an unfair, unsatisfactory manner in favour of Roma and this has caused an increase in the number of personal or collective vindictive actions.”", "45. The court went on to establish that, on the evening of 20 September 1993, the Lăcătuş brothers and Mircea Zoltan had been waiting at the village bus station and had quarrelled with Cheţan Gligor about the attempts made by the three Roma to attract the attention of a girl. Answering the Roma's mockery and insults addressed to him and to his cow, Cheţan Gligor started to threaten the Roma with his whip and even hit Pardalian Lăcătuş. A fight followed, during which Cheţan Crăciun, who had intervened to defend his father, was stabbed in the chest by Rapa Lupian Lăcătuş. The Roma ran away, while Cheţan Crăciun was brought to the hospital, where he died about half an hour later. During that time the Roma took refuge in the house of the applicants Lucreţia and Iulius Moldovan, while villagers gathered around the yard of the house. Two police officers, Chief of Police Moga and Sergeant Şuşcă, arrived at the scene of the incident minutes later, having been called by some villagers. The policemen were allegedly under the influence of alcohol. Before and after the arrival of the police, the villagers threw stones, pieces of wood and clods of earth at the house and shouted things like “Set fire to the house! Let them burn like rats!” A villager started to throw flammable materials at the house and was soon followed by others, including children. When the fire spread, two of the Roma men came out of the house. Rapa Lupian Lăcătuş was immediately immobilised by Mr Moga, while Pardalian Lăcătuş managed to run away. Mircea Zoltan was stopped from coming out of the house by a villager and was hit by another's fist and a shovel, which finally led to his dying in the fire. His carbonized body was found the following day in the burned-down house. The autopsy report established that he had died from respiratory failure, 100% carbonized.", "46. To escape the fury of the villagers, Chief of Police Moga took Rapa Lupian Lăcătuş to the cemetery, after trying in vain to enter several courtyards in the village, which were all locked. The court noted that “the policeman [Moga], realising his presence was useless, abandoned his prisoner to the infuriated crowd”. According to the autopsy report, Rapa Lupian Lăcătuş died a violent death from shock and internal bleeding, with multiple traumatic injuries affecting his liver, a hemiperitoneum and peripheral haematoma on 70% of his body.", "47. Pardalian Lăcătuş was caught by the crowd near the cultural centre, where he was beaten to death. The autopsy report found that he had died as a result of direct blows from blunt objects causing eighty-nine lesions on his body (multiple fractures of his arms, ribs and thorax, and multiple traumatic injuries and contusions).", "48. During the trial, all the civilian defendants stated that, in addition to officers Moga and Şuşcă, two other policemen had arrived from the city of Luduş and encouraged the crowd to set fire to the houses. Two police cars had also arrived at Hădăreni, from which it was announced over loudspeakers that only the detached houses of the Gypsies should be set on fire in order not to cause accidents. At a meeting held the next day in the village square, Lieutenant Colonel Palade stated that the case would be covered up and a scapegoat found.", "49. All the accused stated that they had been arrested for the first time in 1994, but only for a few hours or days, after which they had been released in order to allow them to harvest the crops, a reason they found strange, since most of them were not farmers. They also stated that very few questions were put to them and that the prosecutor even tried to put pressure on them. They were not questioned further until 1997, when they were arrested again.", "50. The court further established that the villagers had declared that, on the night in question, the village was to be “purged of the Gypsies”, an intention clearly put into action, and found that,", "“The majority of the population of Hădăreni was directly or indirectly supported by the representatives of the authorities who came to the village and not only did nothing to stop the houses being set on fire, but also surrounded the area with groups of gendarmes.”", "51. The court found that the action was not premeditated, but that all those present had acted jointly, in different ways (assault, murder, fire, destruction, etc.), to reach their declared goal of eliminating the Roma community from the village.", "52. The court held that the preliminary investigation had been inadequate:", "“We deem that the inadequate manner in which the acts and ... procedures related to the investigation were performed reflect a negative attitude ... The same can be noted regarding the delayed submission of the autopsy reports on the victims (Cheţan Crăciun, Lăcătuş Rapa Lupian and Zoltan Mircea died on 21 September 1993 and the forensic reports were drafted in November 1993; mention should be made of the fact that none of the four forensic reports gave specific dates, but only an indication of the month when they were drafted) ... [Moreover,] the electoral meeting organised at the village stadium, attended by politicians, representatives of the police and the law, ... asked the population not to tell the truth and to delay the resolution of the case.”", "53. The court also noted that the prosecution had not agreed to an extension of the criminal investigation or to the initiation of criminal proceedings against “other persons”. Therefore, the court could only rule in respect of those perpetrators prosecuted in accordance with Article 317 of the Code of Criminal Procedure.", "54. The court convicted five civilians of extremely serious murder under Articles 174 and 176 of the Criminal Code and twelve civilians, including the former five, of destroying property, outraging public decency and disturbing public order. Among those convicted of destruction of property and disturbance was V.B., the Deputy Mayor of Hădăreni. The court pronounced prison sentences ranging from one to seven years, and noted that those given terms of less than five years had half the sentence pardoned under Law no. 137/1997. The court justified the sentences as follows:", "“Taking into consideration the characteristics of this particular case, the punishments applied to the defendants might seem too mild compared to the gravity of the crimes. We consider that, as long as persons who contributed to a greater extent to the criminal actions were not prosecuted and were not even the subject of an investigation, although there was enough evidence to prove their guilt, the defendants who were prosecuted should not be held responsible for all the crimes committed, but only for that part for which they are liable.”", "55. On 17 July 1998, the Public Prosecutors' Office appealed against this judgment, asking, inter alia, for heavier sentences. On 15 January 1999, the Târgu-Mureş Court of Appeal convicted a sixth civilian, P.B., of extremely serious murder under Articles 174 and 176 of the Criminal Code, sentencing him to six years' imprisonment. It also increased the sentence under Article 174 in respect of N.G. to six years' imprisonment. However, it reduced the other sentences under Articles 174 and 176: in respect of V.B. and S.I.P. from seven to six years' imprisonment, in respect of V.B.N. and S.F. from five to two years' imprisonment, and in respect of N.B., I.B. and O.V. from three to two years' imprisonment. Finally, it discontinued the criminal proceedings against the Deputy Mayor V.B.", "56. The Court of Appeal also reduced the sentences of those convicted of destruction of property under Article 217 of the Criminal Code.", "57. On 22 November 1999, the Supreme Court of Justice upheld the lower courts' convictions for destruction, but reduced the charges of extremely serious murder to a lesser charge of serious murder with extenuating circumstances for V.B., P.B. and S.I.P., sentencing them to five years' imprisonment. It acquitted P.B. and N.G.", "58. By a decree of 7 June 2000, the President of Romania issued individual pardons to S.I.P. and P.B., convicted of serious murder, whereupon they were released.", "D. The appeal procedure concerning the refusal to open an investigation against State authorities", "59. On 22 August 1999, following new evidence brought to light in the criminal trial, the applicants lodged an appeal with the Military Prosecutors' Office of the Supreme Court of Justice against the decision of 22 August 1995 not to open an investigation against the police officers involved in the incidents of 20 September 1993.", "60. On 14 March 2000 the Chief Military Prosecutor of the Supreme Court of Justice upheld the military prosecutor at Bucharest Military Court's decision of 22 August 1995.", "E. Reconstruction of the houses destroyed during the events and the victims' living conditions", "61. By decision no. 636 of 19 November 1993, the Romanian Government allocated 25,000,000 Romanian lei (ROL) [1] for the reconstruction of the eighteen houses destroyed by fire on 20 September 1993. The Government decided, moreover, that this amount could also be used as financial assistance for the families affected in order to help them replace items of strict necessity destroyed during the fire. However, only four houses were rebuilt with this money and none of the families received financial assistance.", "62. By a Government decision of 30 November 1993, a commission for the co-ordination of the reconstruction of the houses was created. Members of this commission included the mayor of Cheţani, G.G., and his Deputy, V.B.", "63. In a letter of 30 June 1994 addressed to the Government, the Prefect of Mureş indicated that an additional amount of ROL 53,000,000 [2] was needed to rebuild the remaining ten houses.", "64. By decision no. 773 of 25 November 1994, the Government granted an additional sum of ROL 32,000,000 [3] in funds, which had been earmarked for natural disasters occurring between March and September 1994. Four other houses were rebuilt. As shown in photographs submitted by the applicants, these constructions were defective, as there appear to be huge gaps between the window frames and the walls, and the roofs only partially cover the houses.", "65. In a letter dated 30 November 1994 addressed to the Prefect of Mureş, Petru Rostaş, the father-in-law of the applicant Otilia Rostaş, requested that her house be rebuilt as a priority because, since the events, she had been living with her four children in a hen-house.", "66. In a letter dated 8 November 1995, Liga Pro Europa, a human-rights association based in Târgu-Mureş, informed the Prefect that six houses had still not been rebuilt, which meant that six families had to spend another winter without a dwelling. Moreover, according to the association, most of the victims had complained about the bad quality of the rebuilt houses and alleged that the money allocated for this purpose had been improperly used.", "In a letter addressed to the Prefect in 1995, the mayor of Cheţani (of which Hădăreni is a part), G.G., a member of the reconstruction commission, reported that, of the fourteen houses destroyed by the fire, eight had been rebuilt or almost rebuilt. Concerning the remaining six houses, he reported that three of them posed “special problems” based in part on “the behaviour of the three families”, “the seriousness of the acts committed and the attitude of the population of Hădăreni towards these families”. In particular, one of the houses to be rebuilt was on land near the non-Rom victim's family (Cheţan Crăciun), who refused to have Gypsy families living close by. Another problem mentioned by the mayor was the house of the late mother of two of the Roma “criminals” who had died during the 1993 events. It appeared that, after the events, the Lăcătuş family had started living in the city of Luduş, so the mayor had proposed that a house be built for them at a place of their choice.", "67. To date, six houses have not been rebuilt, of which two belonged to the applicants Petru (Dîgăla) Lăcătuş and Maria Floarea Zoltan. According to an expert report submitted by the Government, the damage caused to the houses of Petru (Gruia) Lăcătuş and Moldovan Maria had not been repaired, whereas the houses of Iulius Moldovan and Otilia Rostaş had been rebuilt but required finishing work.", "68. On 2 September 1997 the applicant Iulius Moldovan wrote a letter to the President of Romania, informing him that six houses, including his, had still not been rebuilt. He urged the President to grant the necessary funds for the reconstruction of the houses, since he and his family were living in very difficult conditions in the home of the Rostaş family: fifteen people, including nine children, were living in two rooms and sleeping on the floor, which resulted in the children being continually ill.", "69. The applicants submitted that, in general, following the events of September 1993, they had been forced to live in hen-houses, pigsties, windowless cellars, or in extremely cold and deplorable conditions: sixteen people in one room with no heating; seven people in one room with a mud floor; families sleeping on mud or concrete floors without adequate clothing, heat or blankets; fifteen people in a summer kitchen with a concrete floor (Melenuţa Moldovan), etc. These conditions had lasted for several years and, in some cases, continued to the present day.", "70. As a result, the applicants and their families fell ill. In particular, the applicant Petru (Gruia) Lăcătuş had developed diabetes and begun to lose his eyesight.", "F. The outcome of the civil case", "71. Following the decision of 23 June 1998 to sever the civil and criminal proceedings, on 12 January 2001 the Mureş Regional Court delivered its judgment in the civil case. The court noted that the victims had requested pecuniary damages for the destruction of the houses and their contents (furniture, etc.), as well as non-pecuniary damages. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed, a criminal court having found twelve villagers guilty of these acts. Basing its decision on an expert report, the court awarded pecuniary damages for those houses which had not been rebuilt in the meantime, and maintenance allowances for the children of the Roma killed during the riots. On the basis of an expert report, the court awarded pecuniary damages in respect of the partial or total destruction of the houses of six Roma, including those of the third and fifth applicants. The court rejected the other applicants' request for pecuniary damages in respect of the rebuilt houses, finding, on the basis of the same expert report, that their value was either the same or even higher than the original buildings. It further refused all applicants damages in respect of belongings and furniture, on the ground that they had not submitted documents to confirm the value of their assets and were not registered as taxpayers capable of acquiring such valuable assets. The court stated, inter alia :", "“Mr Iulius Moldovan did not submit documents proving with certainty that he had any belongings. He claimed in particular that he was in the sheep business, from which he drew a substantial income, for instance, that he had a ton of wool in the attic of his house. However, from the information obtained by the court from the local tax office in Cheţani, it appears that the civil party was not registered as having any income. ...", "The damage suffered because of the destruction of the chattels and furniture has not been substantiated. The civil parties consider that their own statements, the lists of the belongings destroyed submitted to the court and the statements of the other witnesses who are also civil parties should be enough to substantiate their claims. Having regard to the context in which the destruction occurred and to the fact that all civil parties suffered losses, the court will dismiss as obviously insincere the statements made by each civil party in relation to the losses suffered by the other civil parties.", "Last but not least, the type of belongings allegedly destroyed and the quantity of goods allegedly in the possession of each civil party show a much more prosperous situation than that which a family of average income could have. Neither civil party adduced proof of having an income such as to allow them to acquire so many goods. As noted previously, the parties had no income at all. Moreover, the shape of the houses, the materials used for their construction and the number of rooms show an evident lack of financial resources. It should be stressed in this context that only work can be the source of revenue, and not events such as the present one...”", "72. The court finally rejected all the applicants' requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage.", "73. The court ordered the villagers convicted in the criminal trial to pay the damages awarded.", "74. Having regard to some procedural errors in the Mureş Regional Court's judgment, the applicants lodged an appeal with the Mureş Court of Appeal.", "75. On 17 October 2001 the Mureş Court of Appeal found that a number of procedural errors had occurred during the public hearings on the merits before the Mureş Regional Court: the hearings had been held in the absence of the accused and their lawyers; one of the original applicants, Adrian Moldovan, had not been summoned; the public prosecutor had not been given leave to address the court; a number of expert reports ordered by the court had not been completed, and confusion had been created as to the number and names of the victims and their children. The Court of Appeal concluded that these errors rendered the proceedings null and void. It therefore quashed the judgment of 12 January 2001 and ordered a new trial of the case.", "76. The Mureş Regional Court delivered its judgment in the civil case on 12 May 2003. The court noted that the victims had requested pecuniary damages for the destruction of houses and their contents (furniture, etc.), as well as non-pecuniary damages. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed. As a result of these events, the State had granted some money for the reconstruction of the houses.", "Basing its decision on an expert report drafted in 1999 and updated in 2003, the court ordered the following damages to be paid by the civilians found guilty by the criminal court:", "(a) Iulius Moldovan was awarded ROL 130,000,000 [4] in pecuniary damages in respect of the destroyed house, to be revised to take account of any devaluation in the national currency. The court further heard evidence from witnesses confirming that various assets belonging to the applicant, including furniture, belongings and the proceeds from the sale of more than 260 sheep, had been destroyed during the fire. However, the court refused to award damages on the ground that it was impossible to assess the loss.", "(b) As regards Otilia Rostaş, the court noted that her house did not appear on the list of the houses (totally or partially) destroyed drawn up by Cheţani Town Hall. The court heard testimony confirming the destruction of part of the roof and of the wooden structure of her house, but noted that there was no evidence to evaluate the damage. Therefore, it rejected the request for pecuniary damages.", "(c) Petru (Gruia) Lăcătuş was awarded ROL 16,000,000 [5] in pecuniary damages in respect of the destroyed house. The court noted the applicant's claim that various assets he had owned had been destroyed during the fire – furniture, three cars, jewellery and money – but rejected it as unsubstantiated.", "(d) As regards Melenuţa Moldovan, the court awarded ROL 28,000,000 [6] for the destroyed house. The court heard evidence from two witnesses confirming that the applicant had had various belongings which had been destroyed by the fire, but refused to award damages in that respect, as there was no evidence as to their value.", "(e) Maria Moldovan was awarded ROL 600,000 [7] for the destroyed house. The court rejected her claim in respect of the destroyed belongings as there was no evidence as to their value.", "(f) Petru (Dîgăla) Lăcătuş was awarded, together with Floarea Maria Zoltan and Monica Simona Lăcătuş, as the brother and sisters of the deceased victims, ROL 60,000,000 [8] for the destroyed house, to be revised to take account of any devaluation in the national currency. The court rejected their claim in respect of their destroyed belongings on the ground that the losses had not been substantiated. It also rejected as unsubstantiated the claim for the reimbursement of the money spent on the burial of the victims.", "(g) Floarea Maria Zoltan, the widow of one of the victims who had died burned alive during the riots, also requested a maintenance allowance for her minor child. The court noted that although the applicant claimed that her husband used to be a manufacturer of woollen coats, she had not submitted any evidence as to his income, and therefore decided to take the statutory minimum wage as the basis for the calculation of the allowance, namely, ROL 2,500,000 [9]. Moreover, it found that it was impossible to establish how much the applicant's husband used to spend on his child's maintenance, and applied the minimum granted by the Family Code, that is one quarter of the minimum wage, which amounted to ROL 625,000 [10]. Finally, the court took into account that the deceased victims had provoked the crimes committed and decided to halve the above-mentioned amount. It therefore awarded ROL 312,500 [11] per month in maintenance allowance for the applicant's minor child.", "Finally, the court rejected all the applicants' requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage.", "77. On appeal by the persons convicted and the applicants, the Târgu-Mureş Court of Appeal gave judgment on 24 February 2004. The court recalled that, under the combined provisions of the Civil Code and the Codes of Criminal and Civil Procedure, it was bound by the ruling of the criminal court. Referring to recent publications by Romanian authors in the field of civil law and the Court's case of Akdivar v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV), the court found that,", "“By their behaviour, the accused infringed the property rights of the complainants, for which pecuniary damages had already been awarded; however, some of the civil parties should also be awarded damages from a moral point of view. Some of the civil parties were deprived emotionally, as a result of the damage sustained, of the security which they had felt in the destroyed houses, of the comfort they had enjoyed as a result of the facilities of the houses, all these movable and immovable goods being the result of their work, which guaranteed them a normal standard of living, having regard to their personalities ...", "As shown above, the accused committed the crimes in a state of provocation, which led the court to apply the provisions of Article 73 of the Criminal Code [regarding extenuating circumstances]. For this precise reason, the civil parties enumerated below are entitled to a certain amount of damages, but not the amount requested...”", "The court awarded the following amounts: ROL 100,000,000 [12] to Floarea Maria Zoltan as it found that she had had to leave the village and wander homeless in the country and abroad; ROL 50,000,000 [13] to Iulius Moldovan as he had been profoundly affected by the events, had lost his fortune and his health had deteriorated substantially; ROL 30,000,000 [14] to Otilia Rostaş as she had suffered psychological and emotional trauma for the same reasons; ROL 20,000,000 [15] to Melenuţa Moldovan for the same reasons as Otilia Rostaş; ROL 15,000,000 [16] to Maria Moldovan for the psychological trauma suffered as a result of the partial destruction of her house; and ROL 70,000,000 [17] to Petru (Dîgăla) Lăcătuş since he had sustained deep emotional damage and felt insecure as a result of the burning of his parents' house. No award was made in respect of Petru (Gruia) Lăcătuş.", "78. The civil parties filed an appeal against this judgment, which was rejected by a final decision of the Court of Cassation, on 25 February 2005." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "Code of Civil Procedure", "79. Article 244 of the Code of Civil Procedure, as amended by Government Order no. 59/2001, provides that a court examining a civil action can suspend the proceedings:", "“...2. if criminal proceedings have been instituted in relation to a crime, the determination of which is decisive for the outcome of the civil dispute.”", "Code of Criminal Procedure", "Article 10 (c)", "“Criminal proceedings cannot be instituted and, if instituted, cannot be continued if ...", "c) the act was not committed by the defendant; ... ”", "Article 15", "“The person who has suffered civil damage can join the criminal proceedings...", "He or she can do so either during the criminal investigation... or before the court...”", "Article 22", "“The findings contained in a final judgment of the criminal court concerning the issue whether the act in question has been committed, and the identification of the perpetrator and his guilt, are binding on the civil court when it examines the civil consequences of the criminal act.”", "Article 343 § 3", "“In case of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action.", "Civil damages cannot be awarded if an acquittal was decided on the ground that the impugned act did not exist or was not committed by the accused.”", "Civil Code", "80. Articles 999 and 1000 of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has negligently caused it.", "81. Article 1003 of the Civil Code provides that, where more than one person has committed an intentional tort, they shall be jointly and severally liable.", "Case law of the domestic courts", "82. The Government submitted a number of cases in which domestic courts had decided that the prosecutor's decision, based on Article 10 (b) of the Code of Criminal Procedure, not to open a criminal investigation on account of the absence of intention – as an element of the offence – did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question.", "83. The Government submitted only one case, dating back to 1972, in which the Supreme Court had decided that the prosecutor's decision, based on Article 10 (a) and (c) of the Code of Criminal Procedure, not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant, should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question. The Supreme Court's decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action.", "Legal doctrine", "84. The common view of the criminal-procedure specialists is that a civil court cannot examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in Article 10 (a) and (c) of the Code of Criminal Procedure that the acts were not committed at all or were not committed by the defendant (see Criminal Procedural Law – General Part, Gheorghe Nistoreanu and Others, p. 72, Bucharest 1994, and A Treaty on Criminal Procedural Law – General Part, Nicolae Volonciu, pp. 238-39, Bucharest 1996).", "85. The common view of the civil-procedure specialists and of some criminal-procedure specialists is that the prosecutor's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph, does not prevent a civil court from examining a civil action brought against the defendant. In such a case, civil courts are entitled to decide whether the acts were committed and by whom, but have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation (see The Civil Action and the Criminal Trial, Anastasiu Crişu, RRD no. 4/1997, and Criminal Procedural Law, Ion Neagu, p. 209, Bucharest 1988).", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION", "86. Article 3 of the Convention provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "87. Article 8 of the Convention provides, insofar as relevant, as follows:", "“1. Everyone has the right to respect for his private and family life, [and] his home...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicants", "88. The applicants complained that, after the destruction of their houses, they could no longer enjoy the use of their homes and had to live in very poor, cramped conditions, in violation of Articles 3 and 8 of the Convention.", "89. The applicants claimed that State officials had been involved in the destruction of their homes, including police officers and a deputy mayor, the latter having been convicted of a criminal offence in the case. They pointed out that the State had positive obligations under Article 8, and relied in that connection on a number of cases, for instance Burton v. the United Kingdom (no. 31600/96, Commission decision of 10 September 1996), Marzari v. Italy (decision, no. 36448/97, 4 May 1999) and Fadele v. the United Kingdom (no. 13078/87, Commission decision of 12 February 1990). The applicants alleged that the State also had positive obligations under Article 3, and claimed that it was incumbent on the Romanian Government to provide sufficient compensation to restore the applicants to their previous living conditions. Moreover, local officials were responsible for the management or mismanagement of the reconstruction funds and efforts, and had made decisions not to rebuild particular homes in retaliation for perceived “behavioural problems”. The applicants also claimed that the houses rebuilt by the State had been badly constructed and were largely uninhabitable.", "90. They further submitted that the Government's failure to respect their positive obligations had resulted in families with small children and elderly members being forced to live in cellars, hen-houses, stables, burned-out shells, or to move in with friends and relatives in such overcrowded conditions that illness frequently occurred.", "2. The Government", "91. The Government denied that the State authorities bore any responsibility for the destruction of the applicants' houses. Therefore, the State had only positive obligations under Article 8, obligations which had been fulfilled in this case by granting aid to the applicants to rebuild their homes. In any event, the Government considered that there was no obligation under the Convention to provide a home to persons who were in difficulties. They relied in this connection on the cases of Buckley v. the United Kingdom (judgment of 25 September 1996, Reports of Judgments and Decisions 1996 ‑ IV), and Chapman v. the United Kingdom ([GC], no. 27238/95, § 99, ECHR 2001 ‑ I).", "92. The Government submitted that the State's positive obligations under Article 3 had also been fulfilled in this case by granting aid to the applicants to rebuild their homes.", "B. The Court's assessment", "1. General principles", "93. The Court has consistently held that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference. There may, in addition to this primary negative undertaking, be positive obligations inherent in an effective respect for private or family life and the home. These obligations may involve the adoption of measures designed to secure respect for these rights even in the sphere of relations between individuals (see X and Y. v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23).", "94. In addition, the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage the State's responsibility under the Convention (see Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV, § 81). A State may also be held responsible even where its agents are acting ultra vires or contrary to instructions (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 64, § 159).", "95. A State's responsibility may be engaged because of acts which have sufficiently direct repercussions on the rights guaranteed by the Convention. In determining whether this responsibility is effectively engaged, regard must be had to the subsequent behaviour of that State (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 317, 382, 384-85 and 393, ECHR 2004-...).", "96. Further, the Court has not excluded the possibility that the State's positive obligation under Article 8 to safeguard the individual's physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3164, § 128).", "97. Whatever analytical approach is adopted – positive duty or interference – the applicable principles regarding justification under Article 8 § 2 are broadly similar (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172). In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003-VIII; Rees v. the United Kingdom, judgment of 17 October 1986, Series A no. 106, p. 15, § 37, and Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, p. 25, § 59). Furthermore, even in relation to the positive obligations flowing from Article 8 § 1, in striking the required balance, the aims mentioned in Article 8 § 2 may be of relevance (see Rees, cited above, loc. cit .; see also Lopez Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 54, § 51).", "98. The obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see M.C. v. Bulgaria, no. 39272/98, §§ 149-50, ECHR 2004-...; A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 22; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V, and E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002).", "99. Article 3 of the Convention enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).", "100. According to the Court's case law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative. It depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162).", "101. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudla v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III).", "2. Application of the above principles", "102. The Court notes that the actual destruction of the applicants' houses and belongings, as well as their forceful expulsion from the village, took place in September 1993, before the ratification of the Convention by Romania in June 1994. It cannot therefore examine them (see Moldovan and Others v. Romania decision, nos. 41138/98 and 64320/01 joined, 13 March 2001).", "103. It is clear from the evidence submitted by the applicants, and the civil court judgments, that police officers were involved in the organised action of burning the houses and later, also after June 1994, tried to cover up the incident (see paragraphs 39, 40, 48, 50, 52 and 53 above). Following this incident, having been hounded from their village and homes, the applicants had to live, and some of them still live, in crowded and improper conditions – cellars, hen-houses, stables, etc. - and frequently changed address, moving in with friends or family in extremely overcrowded conditions.", "104. Therefore, having regard to the direct repercussions of the acts of State agents on the applicants' rights, the Court considers that the Government's responsibility is engaged as regards the applicants' subsequent living conditions.", "105. In the present case, there is no doubt that the question of the applicants' living conditions falls within the scope of their right to respect for family and private life, as well as their homes. Article 8 is thus clearly applicable to these complaints.", "106. The Court's task is therefore to determine whether the national authorities took adequate steps to put a stop to breaches of the applicants' rights.", "107. In this context, the Court notes the following:", "(a) despite the involvement of State agents in the burning of the applicants' houses, the Public Prosecutors' Office failed to institute criminal proceedings against them, and thus prevented the domestic courts from establishing the responsibility of these officials and punishing them;", "(b) the domestic courts refused for many years to award pecuniary damages for the destruction of the applicants' belongings and furniture and justified this refusal by making allegations as to the applicants' good faith (see paragraph 71);", "(c) it is only in the judgment delivered on 12 May 2003, ten years after the events, by the Mureş Regional Court, that compensation was awarded for the destroyed houses, although not for the loss of belongings;", "(d) in the judgment in the criminal case against the accused villagers, discriminatory remarks about the applicants' Roma origin were made (see paragraph 44);", "(e) the applicants' requests for non-pecuniary damages were also rejected at first instance, the civil courts considering that the events - the burning of their houses and the killing of some of their family members - were not of a nature to create any moral damage (see paragraphs 72 and 76);", "(f) when dealing with a request from the applicant Floarea Maria Zoltan for a maintenance allowance for her minor child, whose father was burnt alive during the events, the Târgu-Mureş Regional Court awarded in its judgment of 12 May 2003, which became final on 25 February 2005, an amount equivalent to a quarter of the statutory minimum wage, and decided to halve this amount on the ground that the deceased victims had provoked the crimes;", "(g) three houses have not to date been rebuilt and, as can be seen from the photographs submitted by the applicants, the houses rebuilt by the authorities are uninhabitable, with large gaps between the windows and the walls and incomplete roofs; and", "(h) most of the applicants have not to date returned to their village, and live scattered throughout Romania and Europe.", "108. In the Court's view, the above elements taken together disclose a general attitude of the authorities – prosecutors, criminal and civil courts, Government and local authorities – which perpetuated the applicants' feelings of insecurity after June 1994 and constituted in itself a hindrance of the applicants' rights to respect for their private and family life and their homes (see, mutatis mutandis, Akdivar v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1215, § 88).", "109. The Court concludes that the above hindrance and the repeated failure of the authorities to put a stop to breaches of the applicants' rights, amount to a serious violation of Article 8 of the Convention of a continuing nature.", "110. It furthermore considers that the applicants' living conditions in the last ten years, in particular the severely overcrowded and unsanitary environment and its detrimental effect on the applicants' health and well-being, combined with the length of the period during which the applicants have had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement.", "111. In addition, the remarks concerning the applicants' honesty and way of life made by some authorities dealing with the applicants' grievances (see the decisions of the civil and criminal courts and remarks made by the mayor of Cheţani, paragraphs 44, 66 and 71 above) appear to be, in the absence of any substantiation on behalf of those authorities, purely discriminatory. In this connection the Court reiterates that discrimination based on race can of itself amount to degrading treatment within the meaning of Article 3 of the Convention (see East African Asians v. the United Kingdom, Commission Report, 14 December 1973, DR 78, p. 5, at p. 62).", "Such remarks should therefore be taken into account as an aggravating factor in the examination of the applicants' complaint under Article 3 of the Convention.", "112. The Court considers that the above findings are not affected by the conclusions reached in the judgment of 24 February 2004 of the Târgu-Mureş Court of Appeal, which became final on 25 February 2005, since the Court notes that the said judgment neither acknowledged nor afforded redress for the breach of the Convention (see, for example, Amuur v. France, judgment of 25 June 1996, Reports 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).", "113. In the light of the above, the Court finds that the applicants' living conditions and the racial discrimination to which they have been publicly subjected by the way in which their grievances were dealt with by the various authorities, constitute an interference with their human dignity which, in the special circumstances of this case, amounted to “degrading treatment” within the meaning of Article 3 of the Convention.", "114. Accordingly, there has also been a violation of Article 3 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "115. The applicants complained that the failure of the authorities to carry out an adequate criminal investigation, culminating in formal charges and the conviction of all individuals responsible, had denied them access to court for a civil action in damages against the State regarding the misconduct of the police officers concerned. Several applicants also complained that, owing to the length of the criminal proceedings, the civil proceedings had not yet ended. They relied on Article 6 § 1 of the Convention, the relevant part of which provides as follows:", "“In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”", "A. As to the right of access to court", "116. The applicants contended that, having regard to the fact that the decision not to prosecute was based on the finding that the accused had not committed the acts in question (Article 10 (c) of the Code of Criminal Procedure), they could not bring a civil action against the police. Such a finding precluded such proceedings, which presuppose that the purported defendant had committed the impugned act. The applicants agreed that the situation would have been different had the prosecutor based his decision not to prosecute on the police officers' lack of guilt.", "Moreover, under Article 1003 of the Civil Code, all civil defendants had to be sued in the same proceedings, being jointly liable. Therefore, the applicants could not have sued the police officers separately from the civilians. When filing their criminal complaint, the applicants had joined their civil claim to the criminal proceedings against all potential defendants, including the police officers. Despite suggestions in the criminal court's statements that many more than the indicted defendants were guilty, the civil court had only assessed the damage caused by the convicted defendants or their heirs. It had done so because, under Article 22 of the Code of Criminal Procedure, the criminal court's findings as to the existence of acts, the identity of the perpetrator and their guilt was binding on the civil court. Thus, the civil court could not have contradicted the criminal court's findings as to who the guilty parties were.", "Finally, the applicants considered that the present situation differed from that in the case of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports 1998-VIII). In that case the police could have been sued in a civil court on the basis of the Law on State Responsibility for Damage, the action being exempted from the payment of court costs. Romanian law did not have provisions enabling a person to sue a police officer in a civil court for alleged ill-treatment. Even assuming that the applicants could have filed a civil action against the police officers, because of their indigence they would not have been able to pay the court costs – around 10% of the damages requested - which would have resulted in the court refusing to examine the merits of the claim.", "117. The Government submitted that, despite the prosecutor's decision not to pursue the police officers allegedly involved in the riots, the applicants could have brought a civil action against the police based on Articles 999 and 1000 of the Civil Code if the police had been shown to have caused damage for which they were responsible. Moreover, Article 22 of the Code of Criminal Procedure did not prevent the applicants from bringing such a civil action. They pointed out that the right of access to a court did not include a right to bring criminal proceedings against a third person or to see that person convicted. They relied in that respect on the aforementioned Assenov case.", "118. The Court recalls that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. The right of access to a court in civil matters constitutes one aspect of the “right to a court” embodied in Article 6 § 1 (see, amongst many authorities, Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2285, § 92; Waite and Kennedy v. Germany [GC], no. 26083/94, § 50, ECHR 1999-I; Golder v. the United Kingdom, judgment of 21 February 1975, Series A, no. 18, p. 18, § 36.) This provision undoubtedly applies to a civil claim for compensation in cases where State agents were allegedly involved in treatment contrary to Article 3, including the destruction of homes and property.", "The requirement of access to court must be entrenched not only in law but also in practice, failing which the remedy lacks the requisite accessibility and effectiveness (see, mutatis mutandis, Akdivar and Others, cited above, p. 1210, § 66). This is particularly true for the right of access to courts in view of the prominent place held in a democratic society by the right to a fair hearing (see, for example, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 12-13, § 24).", "Furthermore, only an institution that has full jurisdiction, including the power to quash in all respects, on questions of fact and law, the challenged decision, merits the description “tribunal” within the meaning of Article 6 § 1 (see, for example, Umlauft v. Austria, judgment of 23 October 1995, Series A no. 328-B, pp. 39-40, §§ 37-39).", "In assessing the existence of an effective remedy in a case of destruction of houses, the Court must bear in mind the insecurity and vulnerability of the applicants' position and the fact that they must have become dependent on the authorities in respect of their basic needs after the events (see Akdivar, cited above, p. 1213, § 73).", "119. The Government maintained that the applicants should have instituted proceedings against the police officers allegedly involved in the events before the civil courts, which could have made a determination on the merits of the compensation claim irrespective of the outcome of the domestic criminal investigation. That hypothesis has not however been tested, since the applicants have not at any stage pursued such a claim for compensation against the police officers.", "As regards the domestic case law submitted by the parties, the Court observes that in none of those cases was it held that a civil court would not be bound by the decision of the prosecuting authorities terminating a criminal investigation on the ground that the acts had not been committed by the accused. This is also true in respect of the case dating back to 1972 submitted by the Government (paragraph 83 above), in which the only issue was whether a civil court was competent to examine a civil claim despite the discontinuation of criminal proceedings. In that case, the Supreme Court did not rule on the question whether the civil court was bound by the criminal authorities' findings.", "120. Consequently, the Court finds that it has not been shown that there was a possibility to institute an effective civil action for damages against the police officers in the particular circumstances of the present case. The Court is not, therefore, able to determine whether the domestic courts would have been able to adjudicate on the applicants' claims had they, for example, brought a tort action against individual members of the police.", "121. However, it is to be observed that the applicants lodged a civil action against the civilians who had been found guilty by the criminal court, claiming compensation in respect of their living conditions following the destruction of their homes. This claim was successful and effective, the applicants being granted compensation (paragraph 77 above). In these circumstances, the Court considers that the applicants cannot claim an additional right to a separate civil action against the police officers allegedly involved in the same incident.", "122. In the light of these considerations, the Court concludes that there has been no violation of Article 6 § 1 as regards the applicants' effective access to a tribunal.", "B. As to the length of the proceedings", "123. The applicants claimed that, despite the numerous potential defendants and witnesses involved, the case was not very complex. The facts were relatively straightforward, the applicants having been able to provide the police with the names of many of the people involved. The case did not present any novel or complex legal issues. The Romanian authorities had delayed the arrest of the accused from September 1993 until January 1997, without providing any credible reason. The applicants refuted the Government's allegation that the delay had resulted from their non-payment of the expert's fees. They pointed out that they were impoverished, living in abysmal conditions and unable to pay for expert assistance. If their financial inability to pay such fees resulted in the loss of their right to a determination of their civil claims, that in itself would constitute a violation of Article 6 § 1 of the Convention.", "Moreover, the civil claims involved very high stakes for the applicants –their efforts to rebuild shattered homes and lives in order to provide decent living conditions for their children and other family members.", "They relied on a considerable body of case law of the Court, including the cases of Torri v. Italy (judgment of 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV), Corigliano v. Italy (judgment of 10 December 1982, Series A no. 57), Bunkate v. the Netherlands (judgment of 26 May 1993, Series A no. 248 ‑ B), and De Micheli v. Italy (judgment of 26 February 1993, Series A no. 257-D).", "124. The Government considered that the case was complex, given that it concerned crimes committed by many villagers during a whole night, and that an expert assessment of the value of the damaged property was needed. They alleged that the applicants were partly responsible for the length of the civil proceedings, as for many weeks they had refused to pay the expert appointed by the court.", "125. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "126. Criminal proceedings are to be taken into account in calculating the relevant period where the result of such proceedings is capable of affecting the outcome of the civil dispute before the ordinary courts (see Rezette v. Luxembourg, no. 73983/01, § 32, 13 July 2004).", "127. While the Court's jurisdiction ratione temporis covers only the period after the entry into force of the Convention with respect to Romania on 20 June 1994, it will take into account the state of proceedings existing on the material date (see, among other authorities, mutatis mutandis, Yağci and Sargin v. Turkey, judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40).", "128. The period under consideration began in September 1993, when the applicants lodged their complaints and an application to join the proceedings as a civil party, and ended on 25 February 2005. They lasted more than eleven years, of which some nine months were prior to the entry into force of the Convention in respect of Romania. Three judicial instances have dealt with this aspect of the case.", "129. The Court notes that five years elapsed before the civil case was severed from the criminal complaints on 23 June 1998 (see paragraph 43) in order to accelerate the procedure. However, it was only on 12 January 2001 that a first judgment was delivered, that is, more than seven years after the civil claim was lodged. That judgment was quashed on 17 October 2001 because of a substantial number of procedural errors (see paragraph 75 above). It was not until two years later, in May 2003, that the Regional Court was able to deliver another judgment on the merits. On 24 February 2004 the Court of Appeal amended the lower court's ruling in part. The Supreme Court upheld, in its final judgment of 25 February 2005, the judgment of the Court of Appeal. While the Court is aware of the difficulty of organising proceedings with more than thirty defendants and civil parties, and which required experts to assess the losses incurred by the victims, it notes that the delays were not due to the time taken to obtain expert reports, since the main report had been ready in 1999. The delays were rather due to the various errors committed by the domestic courts.", "130. Having regard to the criteria established in its case law for the assessment of the reasonableness of the length of proceedings and the particular circumstances of the case, the Court finds that the length of the civil proceedings instituted by the applicants failed to satisfy the reasonable-time requirement of Article 6 § 1 of the Convention.", "131. Consequently, there has been a violation of Article 6 § 1 in this respect also.", "V. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLES 6 AND 8 OF THE CONVENTION", "132. The applicants submitted that, on account of their ethnicity, they were victims of discrimination by judicial bodies and officials, contrary to Article 14 of the Convention, which provides as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "133. They submitted that the remarks made by the Târgu-Mureş County Court in its judgment of 17 July 1998 contained clear anti-Roma sentiment, and that the refusal of the authorities to improve their living conditions after the events of September 1993 was an expression of the hostility against the Roma population. They contended that local officials, in particular the mayor of Hădăreni in his information note concerning the situation of the Gypsy houses to be rebuilt, had demonstrated an obvious bias against the Roma families, in violation of Article 8 combined with Article 14. Moreover, the remarks made by the Târgu-Mureş County Court in its judgment of 17 July 1998, although made in the course of the criminal proceedings after the severance of the civil and criminal cases, could have had consequences for the outcome of the civil case, having regard to the close relation in Romanian law between the criminal proceedings and the civil claims.", "134. Furthermore, the civil court's abrupt dismissal, in the judgment of 12 January 2001, of any claims relating to goods or furnishings, its comments characterising the applicants as liars and tax evaders, its refusal to award non-pecuniary damages for the destruction of homes, and the very low, inappropriate award of damages, constituted discrimination in the enjoyment of the applicants' right to a fair hearing of their civil claims, in violation of Article 6 combined with Article 14.", "135. The Government submitted that, in the absence of a violation of Article 8, the applicants could not allege a violation of Article 14. In any event, the State authorities had provided help to the Roma community in Hădăreni on the same terms as that provided to other categories of the population, for instance those affected by natural disasters. No discrimination had therefore been established. Insofar as the applicants relied on Article 6 combined with Article 14, the Government admitted that the impugned terms had been used, but contended that this had happened during criminal proceedings in which the applicants had not been the accused, but civil parties. Article 6 did not therefore apply to those proceedings and Article 14 could not be relied on.", "136. The Court reiterates that Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to that extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 35, § 71, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22).", "137. As to the scope of the guarantee provided under Article 14, according to established case law, a difference in treatment is discriminatory if it has no objective and reasonable justification, i.e. if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, for example, the Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 42, and Fretté v. France, no. 36515/97, § 34, ECHR 2002-I).", "138. The Court finds that the facts of the instant case fall within the scope of Articles 6 and 8 of the Convention (see paragraphs 105, 109, 126 and 131 above) and that, accordingly, Article 14 is applicable.", "139. It notes first that the attacks were directed against the applicants because of their Roma origin. The Court is not competent ratione temporis to examine under the Convention the actual burning of the applicants' houses and the killing of some of their relatives. It observes, however, that the applicants' Roma ethnicity appears to have been decisive for the length and the result of the domestic proceedings, after the entry into force of the Convention in respect of Romania. It further notes the repeated discriminatory remarks made by the authorities throughout the whole case determining the applicants' rights under Article 8, when rejecting claims for goods or furnishings, and their blank refusal until 2004 to award non-pecuniary damages for the destruction of the family homes.", "As to the judgment of 24 February 2004, confirmed by the Court of Cassation on 25 February 2005, the decision to reduce the non-pecuniary damages granted was motivated by remarks related directly to the applicants' ethnic specificity.", "140. The Court observes that the Government advanced no justification for this difference in treatment of the applicants. It concludes accordingly that there has been a violation of Article 14 of the Convention taken in conjunction with Articles 6 and 8.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "A. Pecuniary and non-pecuniary damage", "141. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "142. The applicants claimed pecuniary damages in respect of the loss of their houses and household property. They conceded that some of the houses had been rebuilt by the Government, but the constructions were defective and most of them had in any event only been partially rebuilt.", "Their claims in respect of the loss of the houses were based on the findings of an expert appointed by the Târgu-Mureş Regional Court.", "They stressed that in most cases they had no independent proof as to the value of their household goods, as any written proof would have been destroyed in the fire. They insisted that, despite their level of poverty, none of the houses had been empty, and submitted, relying on the aforementioned Akdivar judgment, that if their declaration of goods and proposed valuations were not accepted, the Court could assess the value of simple furnishings and other household goods on an equitable basis.", "Some of the applicants claimed the costs of alternative accommodation following their relocation after the destruction of their houses.", "143. In particular, the applicants claimed the following sums: Iulius Moldovan claimed 40,000 euros (EUR) for the destruction of his house and EUR 55,000 for the destruction of his household goods and other assets, including the proceeds from the sale of 400 sheep which had burnt during the fire; Melenuţa Moldovan EUR 2,133 for the destruction of her household goods; Maria Moldovan EUR 947 for the destruction of her house and belongings; Otilia Rostaş EUR 2,573 for the destruction of her belongings; Petru (Gruia) Lăcătuş EUR 10,738 for the destruction of his house and belongings; Maria Floarea Zoltan EUR 2,240 for the destruction of her belongings, and Petru (Dîgăla) Lăcătuş EUR 5,530 for the destruction of his house and household goods.", "144. The applicants further contended that the frustration and helplessness suffered by them with respect to the non-indictment of the police, the lengthy delays in the trial of their civil claims, the racist attitudes of the judges, the insecurity of their housing situation, and the conditions under which they were living – and still lived in some cases – required an award of non-pecuniary damages in order to achieve just satisfaction. In their representative's letter of 29 August 2003, they claimed under this head amounts ranging between EUR 30,000 and EUR 50,000 per applicant, depending on their individual situations: the applicants whose homes had been rebuilt requested EUR 30,000 each, whereas the applicants whose homes had not been rebuilt, that is, Petru (Dîgăla) Lăcătuş and Maria Floarea Zoltan, requested EUR 50,000 each.", "145. On 29 January 2003 Mrs Maria Floarea Zoltan requested EUR 1,000,000 for non-pecuniary damage. She pointed out that, after the events in September 2003, she and her son were chased away from Hădăreni and all attempts to return there had failed. Moreover, she had suffered humiliation and harassment by the secret police, who had been observing her, and as a result of a massive media campaign in Romania describing the Roma population as criminals. Consequently, she and her son had gone to the United Kingdom in 2001, where they had obtained political asylum. She and her son were currently undergoing treatment at the Medical Foundation for the Victims of Torture, among other institutions, for the psychological disturbance they had suffered following these events.", "In a letter sent to the Court on 19 July 2004, Mrs Otilia Rostaş claimed EUR 120,000 in damages and Mrs Melenuţa Moldovan claimed EUR 100,000.", "Mr Iulius Moldovan requested, in a letter dated 6 July 2004, EUR 196,875 for the destruction of his house and household goods, having regard to the devaluation of the Romanian national currency in the last ten years. He also requested EUR 300,000 in respect of non-pecuniary damage.", "146. In short, taking all the heads of pecuniary and non-pecuniary damage together, the applicants claimed the following sums: Iulius Moldovan EUR 496,875; Melenuţa Moldovan, EUR 100,000; Maria Moldovan EUR 30,947; Otilia Rostaş, EUR 120,000; Petru (Gruia) Lăcătuş, EUR 40,738; Maria Floarea Zoltan, EUR 1,002,240 and Petru (Dîgăla) Lăcătuş EUR 55,530.", "147. The applicants made no claims for costs and expenses.", "148. The Government submitted that they could not be held responsible for the alleged violations and that, in any event, they had granted money for the reconstruction of the applicants' homes. In October 2003 they had submitted a report prepared at their request by a local expert. According to the report, the applicants' living conditions after the reconstruction of some of the houses were either “good” or “satisfactory”. It was considered, however, that further works were needed in order to ensure that these buildings were habitable: masonry and work on the electricity, ceiling and drainpipes, the value of which was estimated at EUR 1,000.", "In any event, they considered the sums claimed to be excessive and unsubstantiated.", "149. The Court reiterates its findings that:", "- the applicants were subject to degrading treatment within the meaning of Article 3 of the Convention;", "- there was an interference with their right to respect for their private and family lives and their homes in violation of Article 8;", "- the length of the civil proceedings failed to satisfy the reasonable-time requirement of Article 6 § 1; and", "- the applicants were discriminated against within the meaning of Article 14 on the ground of their ethnic origin in the exercise of their rights under Article 8.", "All these breaches of the Convention had occurred because of the applicants' living conditions following the interference by the authorities after June 1994 with the applicants' rights and their repeated failure to put a stop to the breaches.", "150. The Court considers that there is a causal link between the violations found and the pecuniary damage claimed, since the Government were found to be responsible for the failure to put an end to the breaches of the applicants' rights that generated the unacceptable living conditions. It notes that the expert reports submitted by the parties are inaccurate and inconsistent. It also takes the view that, as a result of the violations found, the applicants undeniably suffered non-pecuniary damage which cannot be made good merely by the finding of a violation.", "151. Consequently, regard being had to the seriousness of the violations of the Convention of which the applicants were victims, to the amounts already granted at the domestic level by the final judgment of 25 February 2005, and ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards them the following sums, plus any amount that may be chargeable in tax:", "(a) EUR 60,000 to Iulius Moldovan for pecuniary and non-pecuniary damage;", "(b) EUR 13,000 to Melenuţa Moldovan for pecuniary and non-pecuniary damage;", "(c) EUR 11,000 to Maria Moldovan for pecuniary and non-pecuniary damage;", "(d) EUR 15,000 to Otilia Rostaş for pecuniary and non-pecuniary damage;", "(e) EUR 17,000 to Petru (Gruia) Lăcătuş for pecuniary and non-pecuniary damage;", "(f) EUR 95,000 to Maria Floarea Zoltan for pecuniary and non-pecuniary damage; and", "(g) EUR 27,000 to Petru (Dîgăla) Lăcătuş for pecuniary and non-pecuniary damage.", "152. The Court considers that these sums should constitute full and final settlement of the case, including that awarded at the domestic level.", "B. Default interest", "153. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are Ukrainian nationals of Roma ethnicity. Before 10 September 2002 the applicants lived in the village of Petrivka, Ivanivskyy District, Odessa Region (hereinafter also “the village”). They currently live in Berezivka District, Odessa Region.", "A. The events of 7 to 10 September 2002", "7. On 7 September 2002 a 17-year-old ethnic Ukrainian was murdered in the village, allegedly by a Romany man who was apparently convicted of the murder afterwards. It appears that this occurred in the course of an altercation between Romany men and other youngsters from the village at a local bar or dancehall.", "8. On 8 September 2002 a crowd of village residents gathered and demanded that the Roma be expelled from the village. According to the statement of the village mayor, Mr M.S., made in the course of a subsequent criminal investigation, the local officials attempted to defuse the situation and urged the villages not to do anything illegal.", "9. On the same day the village council met. Among those present were: a representative of the Ivanivskyy District State Administration (“the District Administration”) and the head of the Ivanivskyy District Police Department (“the District Police Department”). According to the minutes of the meeting submitted by the applicants, in his opening remarks the mayor said, inter alia :", "“... today a cruel crime was committed [in the village] by a group of residents of Gypsy ethnicity. One student of [the village high school] was murdered and three others were injured and are now in hospital in a serious state. This crime was made possible by the fact that no appropriate measures are being taken against them in the event of their [engaging in crimes]. Everybody knows that the spread of drug addiction, which is taking place in our village, is their fault. Today a meeting of villagers took place at which a negative opinion was expressed about the banditry and other [forms of crime] on the part of this category of people ... I invite the council members to speak responsibly and to express their opinion about the crime committed and about the decision of the villagers. I would like this meeting not to turn into something which aggravates inter-ethnic relations.”", "10. At the close of the meeting the council decided, in particular, to “support the decision of the meeting of the village residents to expel persons of Gypsy ethnicity from the village”.", "11. On 9 September 2002 the village council met again. The heads of the District Administration and the District Police Department and the chairperson and members of the Ivanivskyy District Council were present. The village council examined the question of “bringing the decision of the village council [of 8 September] concerning the expulsion of the persons of Gypsy ethnicity into compliance with legal norms”. The head of the District Administration invited the village council members to carefully consider the wisdom of their decision, drawing a clear line between crime ‑ related problems and inter-ethnic relations. A council member, D., stated that whatever the wording of the decision it would have no legal consequences and that legal action against drug dealers would also be ineffective. In fact, it was not possible to keep the situation under control. D. furthermore stated that the neighbours of the Roma residents were saying that it was necessary to cut off their gas supply and to burn down the Roma’s houses. At the close of the meeting the village council decided to ask law enforcement authorities “to ensure the expulsion of socially dangerous individuals, regardless of ethnic origin, from the village”.", "12. On the evening of the same day the mayor and the local police advised the applicants to leave the village, as a “pogrom” was about to start. Electricity and gas supplies to their houses were cut. Subsequently, in the course of the night of 9-10 September 2002 a crowd of several hundred people, allegedly led by a certain Mr O.M., ransacked the houses belonging to the Roma, destroying their belongings. A number of police officers were present but did not intervene to prevent the looting and apparently concentrated solely on preventing human casualties. The house where the first applicant lived had burned down. According to the Government, the results of the expert analysis of the causes of the fire were inconclusive (see paragraph 118 below).", "B. The applicants’ statements concerning their particular situation", "13. The applicants submitted a number of written statements from the applicants addressed to Ms Duducehava, the leader of a Roma association, and Mr Stoyanov, a lawyer who represented a number of applicants in the domestic criminal proceedings (see below). The statements bear various dates from 2004 and 2007, contain descriptions of the events of 7 ‑ 10 September 2002, and ask for help in dealing with the authorities. According to the general tenor of the statements, the applicants’ had been urged to leave by the police prior to the pogrom, and in their absence their houses had been ransacked by the mob – in particular, doors and windows had been smashed, and furniture and belongings destroyed or stolen.", "14. According to the fifth applicant’s statement, dated 17 November 2007, she and the fourth applicant (her husband) had been away from the village at the time of the events and had only learned about them when they had returned on 20 September. She had had to sell her house “at half the price” (“ за полцены ”), as had other Roma victims of the pogrom. The seventh, eighth, thirteenth and sixteenth applicants’ statements, as well as the statements of some other former Roma residents of Petrivka, were similarly worded, speaking of the houses having been sold for less than their normal price (for instance, Mrs M. Burlya, the second applicant’s wife, characterised the price for which her house had been sold as “very cheap”).", "15. The applicants submitted eight undated photographs showing the ruins of one or several houses, certain photographs showing signs of fire. The origin of these photographs is unclear. In her statement to Ms Duducehava in 2004 the sixth applicant referred to certain photographs showing damage to her and her relatives’ houses.", "16. The seventh and eighth applicants stated that all the Roma had left the village before the attack started.", "17. Applicants identified in the Appendix asserted in their statements to Ms Duducehava, Mr Stoyanov or to the police in the course of the subsequent criminal investigation that they had been away from the village at the time of the events of 7-10 September 2002 and of the attack and had only learned about it later.", "18. In her statement to Mr Stoyanov dated 18 November 2007 the ninth applicant stated that she had been at home with her two granddaughters (aged ten and fifteen at the time) when the attack started. Stones had started flying through the windows, four attackers had broken down the door and started shouting, and the older granddaughter had pleaded with the attackers not to kill them. The attackers had not touched the applicant or her granddaughters; the applicant had then fled.", "However, in her statement to the police dated 26 September 2002 this applicant stated that she had fled the village prior to the attack and had returned the next day to find her home ransacked. In her statement (addressed to Ms Duducehava) and dated 13 June 2004 this applicant complained of having been expelled from her home but did not mention that she had personally witnessed any attack.", "C. Aftermath of the events", "19. According to a report published on 20 September 2002 in the regional newspaper Porto Franko and information given at a press conference held on 12 September 2002 by the Secretary of State ( Державний секретар ) for the Ministry of the Interior and by the head of the Odessa Regional Police Department (“the Regional Police”), police officers had been present in force and had observed the attack. However, they had not attempted to prevent or stop it, apparently concentrating solely on preventing casualties.", "20. The events were reported in a number of regional and national newspapers.", "21. The applicants alleged that after the attack they had had to move to another town and live with family and friends in overcrowded and inadequate conditions.", "D. Criminal investigation", "22. On 10 September 2002 the Ivanivka district police initiated criminal proceedings against persons unknown on suspicion of disorderly conduct committed in a group ( хуліганство вчинене групою осіб ).", "23. On 10 September 2002 police investigators from Ivanivka, Berezivka, and several other districts conducted on-site examinations of the damaged houses in Petrivka (which included the taking of fingerprints). A regional police investigator conducted further on-site examinations in December 2002 and January 2003.", "24. On 12 September 2002 it was decided to constitute an investigative team composed of a senior investigator from the regional police department and investigators and other police officers from the Ivanivka district and three other districts.", "25. From 12 September to 9 October 2002 the regional police investigator obtained a number of expert opinions concerning the material found on the scene (notably assessing the damage there).", "26. On 20 September 2002 an officer of the Ivanivka police questioned neighbours of some of the applicants. Those neighbours stated that on the night of the attack they had seen around 150 and 300 people near the applicants’ houses.", "27. From 23 September 2002 to 27 January 2003 at least sixty village residents, including O.М. and P.M. (who were later accused by the applicants’ representative Ms Duducehava of having a role in the attack ‑ see paragraph 36 below), were questioned by the police – four of them by Ivanivka police officers and the rest by the regional police investigator. The villagers generally stated that there had long been tensions in the village between the Roma and non-Roma populations (many mentioning that this was connected with the alleged involvement of Roma residents in the drug trade), and that on the night of 9 September 2002 several hundred individuals had ransacked the houses of the Roma residents. This had been done to ensure that Roma would be expelled from the village. Some expressed approval of the attackers’ actions (as having been triggered by the authorities’ inaction against the drug trafficking), but denied that they had personally taken part in the attack.", "28. The police also questioned a number of applicants, who gave statements largely consistent with the account of events set out in paragraphs 7-17 above.", "29. On 14 November 2002 a certain Mr V. – apparently a Roma and a Petrivka resident at the time – was questioned. He stated that on 9 September he had been called in to Ivanivka district police station and told that residents of Petrivka would be attacking Roma houses. Upon learning this, he returned to the village and helped to evacuate his family, as well as other Roma residents, to another village.", "30. The police recognised the applicants listed in the Appendix as having the official status of aggrieved parties or of civil claimants (see paragraphs 53 and 54 below).", "31. In January 2003 (in the summary provided by the Government the relevant dates seem to be misstated as being in January 2002 and January 2007) the regional police investigator questioned three officers of the “Berkut” special police unit. They stated that about 2,000 persons had participated in the pogrom. They had asked the officers not to interfere in their actions. They had entered the houses and asked the individuals there not to resist and to leave.", "32. In February 2003 the police obtained an expert opinion in an attempt to identify the voices on a video cassette. It appears that the video cassette contained a recording of a meeting of village residents held before the pogrom. The expert concluded that no voice could be identified owing to the poor quality of the recording.", "33. On 4 February 2003 the police suspended the investigation for failure to identify the perpetrators. On 17 February 2003 the regional prosecutor’s office ordered that it be resumed.", "34. On 20 February 2003 the Ivanivsky district prosecutor’s office (“the DPO”) refused to institute criminal proceedings against the village council’s officials for lack of constituent elements of a crime in their actions.", "35. On 1 April 2003 the regional police investigator suspended it again.", "36. On 27 February 2005 Ms Duducehava, the chairperson of Romani Zbora, an NGO, wrote to the Odessa regional prosecutor’s office asking it to institute criminal proceedings against the persons who had participated in the attack and the officials who had allowed it. Specifically, she named Mr O.M., Mr P.M. and Mr I.D., all of whom, she alleged, had incited the attack; she named M.S., the chairman of the village council, and O.V., the head of the district police department, as being among the officials who had allowed it. She named the first fifteen and the seventeenth to nineteenth applicants as persons whose property had been damaged, summarising their statements to her (see, in particular, paragraph 13 above).", "37. On 28 March 2005 the Odessa regional prosecutor’s office informed Ms Duducehava that an investigation into disorderly conduct had been initiated and suspended on 1 April 2003 but that operational measures were being taken to identify the perpetrators (see paragraph 58 below for a summary description of the legislative framework in respect of such measures). Twenty-three individuals, including those whose statements had been added to Ms Duducehava’s complaint, had been recognised as aggrieved parties or civil claimants. Concerning the failure of the police to prevent the disorderly conduct in question, the head of the Regional Police had imposed disciplinary sanctions on the police officers at fault.", "38. On 21 November 2005 Mr I. Stoyanov, a lawyer representing a number of the applicants, complained to the President of Ukraine and the Prosecutor General that the crime committed had been incorrectly classified as merely disorderly conduct, even though it could be characterised as an act of discrimination and mass disorder. The identity of the guilty parties was well known.", "39. On 31 December 2005 the head of the regional police informed Mr Stoyanov that the investigation had been suspended on 1 April 2003 and that the regional prosecutor’s office had examined the case and left the decision to suspend it in force.", "40. On 25 January 2006 the DPO informed Mr Stoyanov of the decision not to institute criminal proceedings against the village officials (see paragraph 34 above) and stated that Mr Stoyanov could obtain information about the situation in the hooliganism case from the regional police, who were in charge of it.", "41. On 27 January 2006 the Ivanivka district police took over the investigation in respect of the hooliganism case and decided to resume it. On 5 April 2006 they suspended it again.", "42. On 22 August 2008 Mr Stoyanov wrote to the Prosecutor General’s Office asking to be informed about the progress of the operational measures to identify the perpetrators and to be allowed to study the case file.", "43. On 25 September 2008 the DPO informed Mr Stoyanov that the investigation had been lawfully suspended and that the aggrieved parties could only examine the case file once the investigation had been completed.", "44. The applicants submitted a copy of a letter from the district police dated 13 July 2009 addressed to Mr Stoyanov. The letter informed Mr Stoyanov, in response to his query, that on 10 February 2009 the investigation had been renewed and on 2 March 2009 suspended again for failure to identify the perpetrators. No reason for the alleged renewal was mentioned. The Government argued that the letter was not genuine (see paragraphs 88 to 91 below).", "E. Judicial proceedings", "1. Quashing of the village council’s decision", "45. On 21 March 2003 the Ivanivskyy District Court (“the District Court”), having heard an appeal by the DPO, quashed the village council’s decision of 9 September 2002 on the grounds that it was contrary to the Constitution and had been taken under the pressure exerted by a crowd of angry villagers in order to calm them down and prevent the lynching of the Roma.", "2. Civil claim for damages", "46. On 23 December 2005 the applicants (except the fourth and sixteenth) lodged with the District Court a civil claim for damages against the District Administration and the village council.", "47. On 23 November 2007 the District Court rejected the applicants’ claim, holding that it fell within the jurisdiction of the Odessa District Administrative Court. No appeal was lodged.", "3. Administrative proceedings for the investigating authorities’ inaction to be declared unlawful", "48. On 3 May 2007 the first three and the fifth to nineteenth applicants lodged a claim seeking to have the failure of the DPO and the district police to investigate the incident declared unlawful.", "49. On 9 February 2008 the Odessa Circuit Administrative Court rejected the claim without considering it on the merits, holding that it fell outside the jurisdiction of the administrative courts. On 17 March 2008 the Odessa Administrative Court of Appeal upheld this ruling.", "4. Complaints to courts in the context of criminal procedure", "50. On 5 June 2008 the District Court initiated proceedings concerning the claim brought by the first three and the fifth to nineteenth applicants under the Code of Criminal Procedure in which they challenged the decision to suspend the investigation. On 19 August 2008 and 8 April 2009 Mr Stoyanov lodged additional complaints on behalf of the first to third, sixth to fifteenth and seventeenth to nineteenth applicants in these proceedings. In those complaints, they stated that they had never been questioned and had never been recognised as aggrieved parties ( потерпілі ). They asked the court to order the police to recognise them as such. According to the applicants, at the time of the application to the European Court of Human Rights the proceedings were still pending before the District Court and no decision had been made." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Constitution of Ukraine", "51. Article 24 of the Constitution of Ukraine provides as follows:", "“... There shall be no privileges or restrictions based on race, skin colour, ... [or] ethnic or social origin ...”", "B. Criminal Code of 2001, as worded at the material time", "52. Articles 67, 161, 294, 296, 365 and 367 of the Code read as follows:", "Article 67. Circumstances aggravating a punishment", "“1. For the purposes of imposing a punishment, the following circumstances shall be deemed to be aggravating:", "...", "(3) the commission of a crime on the grounds of racial, national or religious enmity or hostility; ...”", "Article 161. Violation of citizens’ equality on the grounds of their race, nationality or religious beliefs", "“1. Intentional acts aimed at inflaming ethnic, racial or religious hostility and hate, or attacking ethnic dignity or insulting citizens in connection with their religious beliefs – as well as the direct and indirect limitation of rights or the conferring of direct or indirect privileges on the basis of race, skin colour, political, religious or other beliefs, sex, ethnic or social origin, property status, place of residence, language or other characteristics – shall be punishable by a fine of up to fifty times the level of monthly non-taxable income or by correctional work for a period of up to two years, or by restriction on liberty for a period of up to five years, with or without a prohibition on occupying certain positions or engaging in certain activities for up to three years.", "2. The same acts, where combined with violence, deceit, or threats or committed by a person in a position of authority, shall be punishable by correctional work for a period of up to two years or by imprisonment for up to five years.", "3. The acts described in paragraphs 1 and 2 of this Article, where committed by an organised group or if they have caused death or have resulted in other grave consequences, shall be punishable by imprisonment for two to five years.”", "Article 294. Mass disorder (rioting)", "“1. Organisation and participation in mass disorder associated with violence against persons, pogroms, arson, destruction of property, occupation of buildings, [or] forceful expulsion of citizens... shall be punishable by five to eight years’ imprisonment.", "2. The same acts, where they led to death or other grave consequences, shall be punishable by eight to fifteen years’ imprisonment.”", "Article 296. Disorderly conduct (hooliganism)", "“1. Disorderly conduct, namely a serious breach of public order motivated by flagrant disrespect for the community, combined with particular impudence and exceptional cynicism ...", "2. ... committed by a group of persons shall be punishable by a restriction on liberty for up to five years or imprisonment for up to four years.”", "Article 365. Excess of power or office", "“1. Excess of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons shall be punishable by [the obligation to undertake] correctional works for a period of up to two years or by a limitation on liberty for a period of up to five years or by imprisonment for up five years and by a prohibition on occupying certain positions or engaging in certain activities for up to three years.", "...", "3. Any actions provided by paragraph 1 or 2 of this Article, if they had any grave consequences, shall be punishable by seven to ten years’ imprisonment and by a prohibition on the right to occupy certain positions or engage in certain activities for up to three years.”", "Article 367. Neglect of official duty", "“1. Neglect of official duty – that is to say failure to perform or improper performance on the part of an official of his or her official duties owing to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, State and public interests or those of legal entities, shall be punishable by a fine amounting to between fifty and one hundred and fifty times the [level of monthly non-taxable] income or by correctional work for up to two years or by a restriction on liberty for up to three years and by a prohibition on occupying certain positions or engaging in certain activities for up to three years.", "2. The same act, if it has any grave consequences, shall be punishable by imprisonment for two to five years and a prohibition on occupying certain positions or engaging in certain activities for up to three years with or without a fine amounting to between a hundred and two hundred and fifty times the [level of monthly non-taxable] income.”", "C. Code of Criminal Procedure of 1960 (in effect at the relevant time)", "53. Article 28 of the Code provided that a person who had sustained pecuniary damage as a result of a crime could lodge a civil claim against an accused or persons liable for the actions of the accused. Article 50 required the investigator or the court to deliver a formal decision recognising the person as a civil plaintiff or refusing such recognition.", "54. Article 49 provided that a person who had sustained non-pecuniary, physical or property damage as a result of a crime could be recognised as an aggrieved party. It required the investigator or the court to issue a formal decision recognising the person as an aggrieved party or refusing such recognition.", "55. Article 206 of the Code provided that a pre-trial investigation in a criminal case could be suspended, in particular, if the investigation had failed to identify the perpetrator.", "56. Article 121 provided that any disclosure of information about pre-trial investigation had to be authorised by the investigator in charge of the case or the prosecutor.", "57. Under Articles 234-36 of the Code, the acts of an investigator could be appealed against to a prosecutor. The investigator’s acts and the decisions of the prosecutor in respect of complaints could also be appealed against before a court, but the latter would only examine them at the preliminary hearing of the case in question – that is to say after the relevant investigation had been completed and the case had been sent to court with a bill of indictment.", "D. Operational-Search Activities Act of 1992", "58. Section 2 of the Act describes operational search activities as a system of open and covert search, intelligence and counterintelligence measures. Section 8 provides that in the course of operational search activities the relevant law enforcement units can interview individuals, conduct controlled purchases, examine documents, enter and examine premises (including in a covert manner), infiltrate criminal groups, engage in wiretapping and surveillance, employ informers, create decoy companies and establishments, etc.", "III. RELEVANT INTERNATIONAL DOCUMENTS", "59. The relevant parts of the second report on Ukraine by the European Commission against Racism and Intolerance (ECRI), adopted on 14 December 2001, read as follows:", "“56. As is the case in some European countries, the Roma/Gypsy population of Ukraine is faced with situations of severe socio-economic disadvantage, but also with manifestations of prejudice, discrimination and violence on the part of the majority population and sometimes on the part of the authorities, particularly law enforcement officials. ECRI expresses concern at this situation and considers that policies are urgently needed to address the position of the Roma/Gypsy communities in Ukraine in order to ensure that the members of these communities enjoy in practice the same rights as the rest of the population of Ukraine. ECRI believes that the first necessary step towards developing an appropriate response to the problems faced by the Roma/Gypsy population of Ukraine is the recognition on the part of the authorities that such problems exist and that they need to be addressed ...", "...", "58. Another priority area for action identified by ECRI is the behaviour of the law enforcement officials vis-à-vis members of the Roma/Gypsy communities. In this respect, ECRI notes with concern frequent reports of excessive use of force, ill ‑ treatment, verbal abuse and destruction of property by law enforcement personnel. Discriminatory practices are also reported to be widespread and include arbitrary checks, unwarranted searches, confiscation of documents and, as noted in ECRI’s first report, discriminatory enforcement of crime prevention policies targeting persons with criminal records. ECRI urges that action be taken to address manifestations of unlawful behaviour on the part of law enforcement officials generally, including through a more effective institutional response to such manifestations and through training and awareness raising measures. In addition, noting reports that the response of the police to crimes committed by the general population against Roma/Gypsies is often inadequate, ECRI recommends that the Ukrainian authorities take measures to ensure that the police react promptly and effectively to all crimes, including those committed against Roma/Gypsies and, in line with its recommendations formulated above, to ensure that the racist element of such offences is duly taken into account.”", "60. The relevant parts of the third report on Ukraine by the ECRI, adopted on 29 June 2007, read as follows:", "“76. As previously indicated, Roma face a number of problems in their relationship with the police and other law enforcement agencies. ECRI has received reports according to which some police officers illegally arrest and harass members of Roma communities... Attempts to find a common understanding between Roma organisations and the Ministry of Interior, the Office of the Prosecutor and law enforcement officials have reportedly yielded few results. ECRI has also received reports according to which Roma do not receive an adequate response from the police when they are the victims of crime.”", "61. On 27 November 2002 the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities (“the Advisory Committee”) published its first opinion regarding Ukraine’s compliance with that Convention. It concerned the first monitoring cycle and was based on the Advisory Committee’s visit to Ukraine in December 2001. The relevant parts of the opinion read:", "“30. The Advisory Committee considers that Ukraine has not been able to secure full and effective equality between the majority population and Roma and that the situation of Roma remains difficult in such fields as employment and housing... These problems are exacerbated by the unsatisfactory situation of Roma in the educational system... The Advisory Committee is of the opinion that these issues merit increasing attention.", "...", "36. The Advisory Committee notes with concern that societal attitudes towards Roma remain negative, and sociological studies suggest that the prejudices towards Roma are markedly more widespread than towards persons belonging to other national minorities. The Advisory Committee believes that it would be helpful to design further initiatives aimed at promoting inter-cultural dialogue between Roma and others.", "37. The Advisory Committee notes with concern that there have been incidents of discrimination and ill-treatment of Roma, including by law-enforcement officials, which have been reported inter alia by the Parliamentary Ombudsman. It is also concerned about credible reports about discrimination and hostility, including by law-enforcement officials, concerning asylum-seekers and other persons who have arrived in Ukraine relatively recently... The Advisory Committee deeply regrets that there appears to be some reluctance within the law-enforcement bodies to acknowledge and examine these problems, and it urges the authorities to increase the vigour with which these incidents are investigated and prosecuted.”", "62. The Advisory Committee’s second opinion on Ukraine, issued on 30 May 2008, reads, in the relevant part:", "“79. Some interlocutors informed the Advisory Committee that persons belonging to national minorities are affected by unjustified and/or unlawful stop and search procedures which are carried out by law-enforcement officials. Roma, as well as persons belonging to visible minorities living in various regions of Ukraine, seem to be particularly targeted by this practice which is allegedly accompanied, in certain cases, by calls for bribes. Raids and home searches in Roma settlements, sometimes accompanied by an excessive use of force, have reportedly not ceased. Cases of ill-treatment by the police are still being reported, and the complaints brought against the officials under suspicion are often not properly investigated.", "Moreover, there are reports of Roma convicted of crimes and subsequently sentenced to imprisonment, without substantive proof of guilt. By contrast, law-enforcement agencies are reported to be more reluctant to investigate crimes committed against Roma. Widespread negative stereotypes of the Roma population seem to be prevalent also within law enforcement agencies as well as the judiciary... and no doubt contribute to the risk of unequal treatment by these institutions.”", "THE LAW", "I. PRELIMINARY MATTERS", "A. Death of two applicants", "63. The seventeenth and the eighteenth applicants died after this application had been lodged (see paragraph 5 above).", "1. The parties’ submissions", "64. The applicants’ representatives initially informed the Court of that fact in their letter of 23 February 2018. They stated that the seventeenth applicant’s wife and son and the eighteenth applicant’s wife and granddaughters wished to pursue the application in their stead. On that occasion they furthermore stated that the nineteenth applicant had also died and named certain individuals who wished to pursue the application in his stead.", "65. In response to the Court’s invitation to provide evidence, the applicants’ representatives stated that in fact the nineteenth applicant had not died. On that occasion they also submitted that Ms Raisa Mikitovna Tsynya and Ms Lyubov Leontivna Tsynya – respectively, the wives of the seventeenth and eighteenth applicants – as well as Ms Ramina Nikolaevna Tsynya, Lyubov Nikolaevna Tsynya and Evgenya Tsynya – the eighteenth applicant’s granddaughters, had expressed their wish to pursue the application on behalf of the respective applicants. They submitted authority forms signed by those individuals and death certificates.", "66. The Government submitted that the individuals purporting to pursue the application on behalf of the deceased had “failed to provide any supporting documents related to their relationship or consanguinity with the deceased, such as birth certificate, marriage certificate and more important (sic) inheritance certificates”. They invited the Court to refuse those individuals’ requests that they be allowed to pursue the application on behalf of the deceased.", "67. The applicants’ representatives responded by submitting a copy of the marriage certificate showing that Lyubov Tsynya was the eighteenth applicant’s wife. As to Raisa Tsynya, they submitted that she had only been the seventeenth applicant’s partner (that is to say they had not been married to each other) and that she was therefore in no position to provide a marriage certificate. They pointed out that in the case of Velikova v. Bulgaria ((dec.), no. 41488/98, ECHR 1999 ‑ V (extracts)) the Court had allowed an unmarried partner to pursue a complaint following the death of the applicant. The applicants’ representatives submitted that the individuals in question were vulnerable and poor and could not be expected to provide certificates of inheritance.", "2. The Court’s assessment", "68. The Court firstly notes that the applicants died after they had lodged the application, a situation which according to its case-law is viewed differently from those instances where the applicant has died beforehand. Where the applicant has died after the application was lodged, the Court has accepted that the next of kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references). In such cases, the decisive point is not whether the rights in question are or are not transferable to the heirs wishing to pursue the procedure, but whether the heirs can in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application with the Court (see Singh and Others v. Greece, no. 60041/13, § 26, 19 January 2017).", "69. It is not contested that the individuals wishing to pursue the application on behalf of the deceased applicants have no formal status as their heirs. However, this in itself is not decisive as long as they can lay a claim to be their next of kin (contrast Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII – where the Court accepted that a relative who had not finalised his status as a heir nevertheless had such standing ‑ with Thévenon v. France (dec.), no. 2476/02, ECHR 2006 ‑ III, ‑ where it did not recognise the locus standi of an individual who was not the applicant’s relative, even though he was his friend and universal legatee).", "70. As far as the seventeenth applicant is concerned, there is no evidence before the Court which would show that the individuals purporting to pursue the application on his behalf are his next of kin, and the individuals in question have not explained why they could not provide such evidence.", "71. While initially the seventeenth applicant’s son was mentioned by the applicants’ representatives as wishing to pursue the application, there was no follow-up and the applicants’ representatives made no reference to him again after the Court’s request for evidence (see paragraphs 64 and 65 above).", "72. As to the seventeenth applicant’s unmarried partner, she did not pursue any domestic proceedings on his behalf and was not recognised as such either by any domestic authority or the Government (contrast, for example, Velikova (dec.), cited above, Vogrinčič and Others v. Slovenia (dec.), nos. 15829/05 and 18618/06, 28 June 2011, and Ivko v. Russia, no. 30575/08, § 66, 15 December 2015). Even after clarifying her status as his unmarried partner, she has not described her relationship with the applicant in any detail, such as the period of their cohabitation, common children, etc. (contrast, for example, Velikova (dec.), cited above, and Pisarkiewicz v. Poland, no. 18967/02, § 29, 22 January 2008).", "73. Given these circumstances, the Court concludes that it has not been shown that the individuals purporting to pursue the application in the seventeenth applicant’s stead have a legitimate interest in doing so. Accordingly, they do not have standing to pursue the proceedings.", "74. Given that the Court will continue to examine the other applicants’ complaints, which are based entirely on the same facts, no particular circumstance relating to respect for the rights guaranteed by the Convention or its Protocols requires the Court to continue the examination of the application in respect of the seventeenth applicant (see, for example, Grigoryan and Sergeyeva v. Ukraine, no. 63409/11, § 45, 28 March 2017).", "75. The Court accordingly finds that, as far as that applicant is concerned, the conditions in which a case may be struck out of its list, as provided in Article 37 § 1 of the Convention, are satisfied and decides to strike the application in respect of the seventeenth applicant out of its list.", "76. As far as the eighteenth applicant is concerned, the application is being pursued by his wife. The Court has no reason to doubt that she may pursue the application in his stead. By contrast, the individuals claiming to be that applicant’s granddaughters did not submit any evidence in support of that claim and, therefore, have not demonstrated that they have the requisite standing to pursue the application in his stead.", "77. Accordingly, the Court holds that the eighteenth applicant’s wife has standing to continue the present proceedings in his stead.", "78. However, reference will still be made to “the eighteenth applicant” throughout the ensuing text.", "B. Victim status of some applicants", "1. The parties’ submissions", "79. The Government submitted that the second, fourth, eighth, fourteenth, sixteenth and nineteenth applicants had not been recognised as victims in the domestic criminal proceedings (see the Appendix) and had not submitted any evidence to show that they had been affected by the events in issue in the case. Moreover, in the course of the domestic investigation the police did not examine the houses of the fifth, thirteenth, fourteenth and nineteenth applicants. The Government considered this to constitute evidence that their houses had not been damaged in the attack. Accordingly, they could not claim to be victims of the alleged violations of the Convention.", "80. The applicants responded that what was important in this context was the ineffectiveness of the domestic investigation, not those applicants’ formal status in those proceedings. Moreover, they pointed out that they had complained about the authorities’ failure to confer on some of them the formal status of aggrieved parties in the domestic proceedings (see paragraph 50 above). The applicants furthermore submitted that the fact that the houses of the fifth, thirteenth, fourteenth and nineteenth applicants and the damage done to them had not been examined by the police was attributable to the ineffectiveness of the investigation rather than to any fault on the applicants’ part.", "2. The Court’s assessment", "81. The Court notes that in her letter to the regional prosecutor’s office of 27 February 2005 (see paragraph 36 above) an official of the Romani Zbora NGO, acting on behalf of all the applicants other than the sixteenth (Ms Tsykolan), identified them as victims of the attack, enclosing their statements to that effect. In its response, the regional prosecutor’s office did not contest their situation as victims; on the contrary, it apparently implied that all of them had been granted formal status in the investigation (see paragraph 37 above). In view of the Government’s observations, the latter assessment by the prosecutor’s office appears to have been incorrect as no formal decision to grant the status of aggrieved parties to the second, fourth, eighth, fourteenth, sixteenth and nineteenth applicants was ever taken. However, neither does it appear that any formal decision was taken refusing them that status, even though the domestic law appears to have required such a formal decision (see paragraphs 53 and 54 above). In fact, there is no indication that there has been any decision-making or assessment of facts in respect of those applicants on the part of the domestic authorities.", "82. The Court reiterates, in this respect, that according to the Court’s long-established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity (see, for example, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts)). Therefore, a lack of recognition of applicants at the domestic level does not, in and of itself, prevent them being considered to be “victims” within the meaning of Article 34 of the Convention, which denotes the person or persons directly or indirectly affected by the alleged violation at issue (ibid.).", "83. As to the Government’s argument that the houses of the fifth, thirteenth, fourteenth and nineteenth applicants had not been examined by the police – which, in the Government’s opinion, signified that those houses had not been damaged – the Court is unable to perceive any specific basis for this conclusion in the domestic investigation material made available to it. Moreover, as far as fifth and thirteenth applicants are concerned, this argument would appear to contradict the formal decision of the domestic authorities to grant them the status of aggrieved parties.", "84. Given that the Government did not submit specific evidence – in particular any reasoned domestic decision – to rebut the applicants’ account that they had been displaced from their homes and that their homes had been damaged in the course of the events of 7 to 10 September 2002, the Court considers that all the applicants, except the sixteenth, can claim to be victims of the violations of the Convention alleged by them.", "85. As far as the sixteenth applicant is concerned, the Court notes that she has not submitted any evidence (beyond the applicants’ own assertion) to show that she was affected by the events in issue in the present application. She was granted no formal status at the domestic level and her name was not mentioned either in the Romani Zbora NGO’s complaint of 27 February 2005 (see paragraph 36 above) or in the lawyer’s complaints concerning the failure to recognise some of the other applicants as aggrieved parties (see paragraph 50 above). Therefore, the sixteenth applicant has not laid out an arguable case that she is a victim of the alleged violations of the Convention.", "86. Therefore the Court, upholding the Government’s objection, considers that the application has to be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention, in so far as it concerns the sixteenth applicant.", "87. Accordingly, in the following discussion, unless otherwise specified, the first to fifteenth and eighteenth to nineteenth applicants are collectively referred to as “the applicants”.", "C. Question of an abuse of the right of individual application", "88. The Government did not consider the letter of 13 July 2009 addressed to Mr Stoyanov and indicating that the investigation had been renewed briefly in 2009, which the applicants had submitted (see paragraph 44 above), to be genuine. In particular it did not bear the appropriate police letterhead, did not bear the appropriate stamp, and was in Russian (even though normally it should have been in Ukrainian), and no record of it having been sent could be found in the district police department’s register of outgoing correspondence. The letter, therefore, appeared to have been forged. The Government accordingly invited the Court to consider the production of that letter to constitute abuse of the right of application and to reject the application on that ground.", "89. The applicants insisted that the letter of 13 July 2009 was genuine. The fact that it was in Russian was not unusual since that language was widely used in the region. It bore a letterhead and a stamp. They provided a written statement from their representative Mr Stoyanov confirming that the letter was genuine. According to him, he had also visited Ivanivka police station on 7 November 2016 and the registrar there had confirmed to him that the 2009 letter had indeed been sent. The applicants also provided a new letter dated 21 October 2016 and signed by the deputy head of the investigation department at Ivanivka police station and confirming, in essence, that the 2009 letter was genuine.", "90. As to the letter of 21 October 2016, the Government submitted that the police were investigating the circumstances under which it had been issued. Moreover, the grounds for the issuance of this letter were doubtful since the police department’s register of outgoing correspondence had been stored for five years and then destroyed in 2014, so it was impossible to verify whether the letter of 13 July 2009 had been issued.", "91. On the basis of the material in its possession, the Court is unable to conclude that the letter of 13 July 2009 was forged and that the applicants committed an abuse. In fact, the key objection to its genuineness raised by the Government – namely that it could not be found in the police department’s register of outgoing correspondence – appears to contradict the Government’s own submission that that register had been destroyed in 2014 before this application was communicated (compare paragraphs 88 and 90 above). Moreover, the issuance of that 2009 letter was reconfirmed by the police as recently as 21 October 2016, after the Government had submitted their observations. Accordingly, this objection must be rejected.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "92. The applicants complained under Article 3 of the Convention that the attack on their houses and their destruction had amounted to inhuman and degrading treatment, for which the State was responsible on the grounds that the authorities had been complicit in the attack and had failed to protect them from it and to investigate it effectively. They furthermore argued that the State was responsible for the degrading living conditions that they had experienced following their displacement. In addition, they complained that on account of the above they had suffered discrimination owing to their Roma ethnic origin, contrary to Article 14, taken in conjunction with Article 3.", "93. The invoked provisions read:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Two groups of applicants", "94. In examining the above complaints the Court finds it appropriate to distinguish between two groups of applicants:", "Group I applicants – applicants who were present in the village in the run-up to the attack of the night of 9-10 September 2002 and had to flee their homes in the village under the threat of that attack – namely, the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants;", "Group II applicants – the applicants who, by their own admission, were away from their homes at the time of the events in question (see the Appendix for references to the relevant statements), and so had no knowledge of the imminent attack, having only learned about the damage done to them afterwards – namely the first, fourth, fifth, tenth and twelfth applicants.", "B. Group I applicants", "1. Admissibility", "(a) Exhaustion of domestic remedies", "(i) The parties’ submissions", "95. In the Government’s opinion, the applicants should have realised that the criminal investigation was incapable of establishing with sufficient clarity any given person’s criminal responsibility for violence committed by a mob. Instead, a claim for damages against the local council or the police department was the only effective remedy available to them. In fact, the applicants had lodged a claim for damages against the council on 23 December 2005 seeking damages in respect of their expulsion (see paragraph 46 above). By using this remedy they had forfeited the right to assert that it had not been effective. However, they had then failed to appeal against the first-instance court’s decision dismissing their claim (see paragraph 47 above). They had also failed to lodge an administrative claim for damages against the police. The Government provided examples of the domestic courts’ case-law according to which such claims for damages could be considered effective.", "96. The Government also pointed out that the applicants had failed to challenge before a more senior prosecutor the decisions to suspend criminal proceedings.", "97. The applicants pointed out that the Court had found violations of the Convention where States had failed to conduct an effective criminal investigation into mob violence (see Ouranio Toxo and Others v. Greece, no. 74989/01, § 43, ECHR 2005 ‑ X (extracts); Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, § 124, 3 May 2007; and Identoba and Others v. Georgia, no. 73235/12, §§ 75-78, 12 May 2015). For them, this was a clear indication that they could have expected an effective criminal investigation into the attack. They had sought to initiate such a criminal investigation and had thus complied with the requirement to exhaust domestic remedies. It had only been after it had become clear that the investigation was ineffective that they had applied to the Court.", "(ii) The Court’s assessment", "98. The relevant principles of the Court’s case-law concerning the rule of exhaustion of domestic remedies are set out in Mocanu and Others v. Romania, [GC], nos. 10865/09 and 2 others, §§ 120-127, ECHR 2014 (extracts).", "99. In response to the Government’s submission that the applicants had to lodge civil claims for damages, the Court observes that, in fact, a criminal investigation was initiated in connection with the attack on the applicants’ houses, and the applicants played an active role in it (see paragraphs 30 ‑ 44 above and 109 below). Accordingly, the applicants made use of a domestic remedy which, according to the Court’s case-law, constitutes an effective domestic remedy for such complaints (see, for example, M.C. and A.C. v. Romania, no. 12060/12, § 61, 12 April 2016). Since the investigation concerned the attack in general, its outcome was important for all applicants, regardless of whether or not they had been granted formal status in the domestic proceedings (see, mutatis mutandis, D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 120-22, ECHR 2007 ‑ IV).", "100. As to the Government’s argument that the applicants could have appealed to a more senior prosecutor against the decision to suspend the investigation, the Court notes that the applicants’ representatives did in fact raise arguments before the Prosecutor General questioning the validity of the suspension – namely the failure to identify the perpetrators; and the regional prosecutor’s office examined that complaint on the merits, having left in force the decision to suspend the investigation (see paragraphs 38 and 39 above). Given that the applicants did not have access to the case file (see paragraph 43 above), the Court is not convinced that they could have presented more detailed arguments in this respect (compare Betayev and Betayeva v. Russia, no. 37315/03, § 89, 29 May 2008).", "101. In the light of the foregoing, the Court considers that the application cannot be rejected for failure to exhaust domestic remedies. The Government’s objection must therefore be dismissed.", "(b) Compliance with the six-month rule", "(i) The parties’ submissions", "102. The Government submitted that the applicants’ complaints had been lodged outside of the six-month period. They presented two arguments in this respect.", "103. Firstly, the Government argued that the criminal proceedings instituted in respect of the attack had been definitively suspended on 5 April 2006; this decision had been notified to the applicants on 25 September 2008 at the latest, and the investigation had remained dormant ever since. The Government did not consider as genuine the letter of 13 July 2009 addressed to Mr Stoyanov and indicating that the investigation had been renewed briefly in 2009 (see paragraphs 44 and 91 above). Moreover, in the applicants’ claim lodged in 2007 with the administrative court the applicants had stated that they already considered the investigation to be ineffective. Thus, the applicants must have realised at the very latest by 25 September 2008 that the criminal investigation was ineffective and should then have applied to the Court. However, the applicants had actually applied to the Court more than six months after that date.", "104. Secondly, the Government also argued that the village council’s decision concerning the expulsion of the Roma from the village had been quashed with effect from 21 April 2003, when the domestic court’s judgment of 21 March 2003 (see paragraph 45 above) had become final and enforceable. Accordingly, the council’s decisions “could not serve as the basis for any actions” as of the former date. The applicants had lodged their application more than six years after that date.", "105. Referring to the Court’s judgment in Chiragov and Others v. Armenia ([GC], no. 13216/05, § 137, ECHR 2015), the applicants submitted that the requirement for applicants to display due diligence in pursuing their claims was less pressing in cases concerning loss of property than in cases concerning violent loss of life, given that in the former the evidence was less likely to deteriorate over time. They referred to their arguments concerning the letter of 13 July 2009, which indicated that the investigation had been restarted in 2009 (see paragraphs 44 and 89 above).", "(ii) The Court’s assessment", "106. The relevant principles of the Court’s case-law concerning the six-month rule period are set out in Mocanu and Others (cited above, §§ 259 ‑ 66). In accordance with those principles in cases concerning an investigation into ill-treatment, applicants are expected to take steps to keep track of the investigation’s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (ibid., § 263). That obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, applicants must contact the domestic authorities promptly concerning progress in the investigation in question – which implies the need to complain to them in a diligent manner, since any delay risks compromising the effectiveness of the investigation; on the other hand, they must lodge their application with the Court promptly as soon as they become aware or should have become aware that the investigation is not effective (ibid., § 264).", "107. The Court agrees with the Government that had the applicants complained about the village council’s resolution of 9 September 2002 as such, it would have had to hold that such a complaint had been lodged outside the six-month period. The Court considers, however, that the applicants referred to the village council’s resolution as mere evidence of the authorities’ implication in the attack on their homes which was the subject of the subsequent criminal investigation.", "108. As far as the criminal investigation and the applicants’ compliance with the obligation of diligence in that respect are concerned, the Court notes that the applicants’ compliance with the first aspect of that obligation is not contested (see paragraph 95 above).", "109. As to the second aspect (see paragraph 106 in fine above), the Court notes that throughout the investigation the applicants maintained regular contact with the authorities, displaying active interest in the proceedings (compare M.C. and A.C. v. Romania, cited above, § 78; also contrast Narin v. Turkey, no. 18907/02, § 46, 15 December 2009, and Frandeş v. Romania (dec.), no. 35802/05, § 21, 17 May 2011). The suspension of proceedings was neither triggered nor influenced in any manner by the applicants’ activity or lack thereof (see M.C. and A.C. v. Romania, cited above, § 75).", "110. Following its initial suspension in 2003, the criminal investigation was briefly renewed in 2006 (see paragraphs 35 and 41 above). Moreover, the applicants were assured that measures to identify the perpetrators were ongoing even in the period during which the formal investigation was suspended (see paragraph 37 above). Given the secrecy which characterised this stage of the proceedings, it was reasonable for the applicants to put their trust in such assurances (ibid., § 77; see also paragraph 56 above). Finally, on 13 July 2009 – that is to say less than six month before this application was lodged with the Court – the applicants were informed that the investigation had again been renewed (see paragraph 44 above). As the Court found above, it has no sufficient grounds to doubt that the letter in question is genuine (see paragraph 91 above).", "111. Under such circumstances the Court cannot fault the applicants for having put their trust in the system (ibid., § 77), giving the authorities the benefit of the doubt and awaiting further progress before applying to the Court, so long as there was a realistic possibility, on the basis of the information the applicants were receiving from the authorities, that the investigative measures could be advancing (compare Mocanu and Others, cited above, § 280).", "112. In the light of the foregoing, the Court considers that the application has not been lodged out of time. The Government’s objection must therefore be dismissed.", "(c) Conclusion as to admissibility", "113. The Court accordingly concludes that the complaints of the Group I applicants under Article 3 of the Convention (taken both alone and in conjunction with Article 14 of the Convention) are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. No other grounds for declaring them inadmissible have been established. They must therefore be declared admissible.", "2. Merits", "(a) The parties’ submissions", "114. The applicants maintained that there had been a violation of Article 3 on account of the authorities’ acquiescence in the attack (most notably on the part of the village council and of the police), their failure to prevent and effectively investigate it, and the applicants’ degrading post ‑ displacement living conditions.", "115. The applicants submitted that the village council’s resolution had constituted incitement to violence. In this respect they referred to Ouranio Toxo and Others (cited above, § 42). The applicants may not have feared for their lives upon returning to inspect their properties but it would be unreasonable to expect them to continue living in a place where the only protection they could expect was advance warning to flee. The fact that most of the applicants had not witnessed the attack on their homes did not preclude the applicability of Article 3, since – according to the Court’s judgment in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 249-64, ECHR 2011) – Article 3 could be engaged in the event that members of a particularly vulnerable group were made homeless in aggravated circumstances.", "116. The Government submitted that the threshold of severity required to bring Article 3 into play had not been reached. Relying, in particular, on the Court’s judgments in Selçuk and Asker v. Turkey (24 April 1998, § 77, Reports of Judgments and Decisions 1998 ‑ II), and Ayder and Others v. Turkey (no. 23656/94, § 109, 8 January 2004), they argued that according to the Court’s case-law two factors were decisive for the triggering of the application of Article 3 in respect of the destruction of a home, namely (i) the factor of surprise and (ii) the applicant personally observing the destruction of his or her home. Neither of those had been present in the instant case since the Roma (i) had been warned by the village mayor and the police of the possibility of a pogrom, and (ii) had left; moreover, none of them had observed the attack. This also applied to the ninth applicant, who had not mentioned in her early statements that she had personally witnessed the attack (see paragraph 18 above).", "117. There was no evidence that the authorities had instigated, the less so carried out, the destruction of the applicants’ property. On the contrary, the village mayor and police officers had warned the applicants of the possible pogrom and had asked them to leave their houses. Apparently there had been some police officers present during the “pogrom”, but there was no evidence that they instigated the violence, let alone participated in it. It appears that the police first contained the mob and then, when it became feasible, dispersed it. The local council’s decision regarding expulsion was quickly quashed. In short, there was no evidence that expulsion of the applicants had been part of State policy (see also paragraph 154 below).", "118. Neither was there evidence that the applicants’ houses had been burned, which had been a factor in finding a violation in the cases of Selçuk and Asker and Ayder (both cited above) and Moldovan and Others v. Romania (no. 2), nos. 41138/98 and 64320/01, ECHR 2005 ‑ VII (extracts)). Only the home of the first applicant had burned down and there was no conclusive evidence that this had been due to arson rather than to an accident (see paragraph 12 above). The other homes were damaged but not destroyed, as evidenced by the fact that the applicants and other Roma residents had been able to visit their homes and to sell them afterwards. The applicants had not provided evidence concerning either the exact extent of damage to their homes or of the allegedly harsh living conditions they had experienced following their displacement.", "(b) The Court’s assessment", "(i) Relevant general principles", "(α) Attribution of responsibility", "119. A Contracting State will be responsible under the Convention for violations of human rights caused by acts of its agents carried out in the performance of their duties (see, for example, V.K. v. Russia, no. 68059/13, § 174, 7 March 2017). However, a State may also be held responsible even where its agents are acting ultra vires or contrary to instructions (see Moldovan and Others, cited above, § 94). The acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may also engage that State’s responsibility under the Convention (see Cyprus v. Turkey [GC], no. 25781/94, § 81, ECHR 2001 ‑ IV).", "(β) Minimum level of severity", "120. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Further factors include the purpose for which the ill ‑ treatment was inflicted, together with the intention or motivation behind it, although the absence of any intention to humiliate or debase the victim cannot conclusively rule out the finding of a violation of Article 3. Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions. Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these aspects, where treatment humiliates or debases an individual ‑ showing a lack of respect for or diminishing his or her human dignity – or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3 (see Bouyid v. Belgium ([GC], no. 23380/09, §§ 86 and 87, ECHR 2015, with further references therein).", "121. It should also be emphasised that Article 3 cannot be limited to acts of physical ill-treatment; it also covers the infliction of psychological suffering (see R.B. v. Hungary, no. 64602/12, § 45, 12 April 2016). The Court has thus held that a mere threat of torture can constitute inhuman treatment (see Gäfgen v. Germany [GC], no. 22978/05, § 108, ECHR 2010). The Court has reached the same conclusion in respect of a fear of future assaults where there had already been a history of domestic violence (see Eremia v. the Republic of Moldova, no. 3564/11, § 54, 28 May 2013). The Court also found Article 3 to be applicable in a case where armed and masked police officers had entered the applicants’ home (where an infant had been present), pointed guns at the applicants and shouted death threats (see Hristovi v. Bulgaria, no. 42697/05, § 80, 11 October 2011).", "In East African Asians v. United Kingdom (Commission’s report of 14 December 1973, Decisions and Reports 78-A, p. 62, § 207) the European Commission on Human Rights considered the meaning of degrading treatment under Article 3 of the Convention and stated that “treatment of an individual may be said to be “degrading” in the sense of Article 3 “if it grossly humiliates him before others or drives him to act against his will or conscience” (paragraph 195 of the Commission’s opinion). It further held that “... discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention. ...[P]ublicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity...” ( ibid ., paragraph 207).", "122. Not every form of threatening behaviour, however, even if it involves a large group of individuals, will bring Article 3 into play (see, for example, Karaahmed v. Bulgaria, no. 30587/13, §§ 74-77, 24 February 2015, which involved mostly verbal intimidation of Muslim worshippers by a crowd of protesters), even though where threats reach a certain level of seriousness and target victims as members of a particular ethnic or racial group, they may bring Article 8 into play (see Király and Dömötör v. Hungary, no. 10851/13, § 43, 17 January 2017, where the applicants, Roma residents of a village, were in their houses and had to observe a threatening demonstration, which involved anti-Roma speeches and the throwing of objects at their houses, and which was overseen and contained but not dispersed by the police).", "123. The Court has further held that in the event of threatening actions on the part of third parties, a significant police presence protecting the applicants has a role in attenuating its effect so as to make Article 3 inapplicable while Article 8 was still engaged (see R.B. v. Hungary, cited above, §§ 51 and 52). By contrast, in Identoba and Others (cited above, § 70), the Court, in categorising the treatment suffered by the applicants at the hands of private protestors as falling within the ambit of Article 3, found relevant the inadequacy of police protection provided to the applicants. In a different context, the Court, in finding the treatment suffered by applicants to be contrary to Article 3 and even to constitute torture, found it relevant that they had been detained in a place where there had been no rule of law (“ zone de non-droit ”) and the most elementary guarantees of rights had been suspended and where, therefore, they had had no protection from abuse (see Azzolina and Others v. Italy (nos. 28923/09 and 67599/10, §§ 134 and 137, 26 October 2017).", "(γ) Positive obligations", "124. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. This positive obligation to protect is to be interpreted in such a way as not to impose an excessive burden on the authorities, bearing in mind, in particular, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every risk of ill-treatment could entail for the authorities a Convention requirement to take measures to prevent that risk from materialising. However, the required measures should, at least, provide effective protection in particular of children and other vulnerable persons and should include reasonable steps to prevent ill ‑ treatment of which the authorities had or ought to have had knowledge (see O’Keeffe v. Ireland [GC], no. 35810/09, § 144, ECHR 2014 (extracts)).", "125. Furthermore, Article 3 requires that the authorities conduct an effective official investigation into the alleged ill ‑ treatment, even if such treatment has been inflicted by private individuals (see T.M. and C.M. v. the Republic of Moldova, no. 26608/11, § 38, 28 January 2014).", "126. An investigation into serious allegations of ill-treatment must be both prompt and thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or for use as the basis of their decisions. They must take all reasonable steps available to them to secure evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 183 and 184, ECHR 2012, with further reference therein).", "127. Generally speaking, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent of those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence. Whatever mode is employed, the authorities must act of their own motion. In addition, in order to be effective the investigation must be capable of leading to the identification and punishment of those responsible. It should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used force but also all the surrounding circumstances. Although this is not an obligation of results to be achieved but of means to be employed, any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the required standard of effectiveness (see Bouyid, cited above, §§ 118-20).", "128. When investigating violent incidents such as acts of ill ‑ treatment, State authorities have a duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events at hand. Proving racial motivation will admittedly often be difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use its best endeavours and is not absolute. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially motivated violence (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII). Treating violence and brutality with a discriminatory intent on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Identoba and Others, cited above, § 67).", "(ii) Application of the above-mentioned principles to the present case", "(α) Substantive aspect of Article 3, taken in conjunction with Article 14", "129. The Court considers it necessary, at this juncture, to (i) comment on the motives behind the attack on the applicants’ homes and (ii) to assess the authorities’ role in the applicants’ displacement.", "130. As to the former matter, it is sufficient for the Court to note that it has never been substantively in dispute either domestically or before this Court that the attack on the applicants’ houses was motivated by anti-Roma sentiment among the villagers. Admittedly, the mob appears to have been motivated in part by desire for revenge against the families of those involved in the murder which had triggered the events (compare Fedorchenko and Lozenko v. Ukraine, no. 387/03, § 68, 20 September 2012, where Roma houses were burned in an attack allegedly targeting houses of drug dealers).", "131. As to the role of the authorities in respect of the attack, it appears that not only local police in the village but also police at the district level knew about the pogrom being prepared sufficiently ahead of time to call Roma residents to a meeting and to warn them to leave (see paragraph 29 above). That being so, there is no information as to why they did not intervene to protect the applicants’ homes. In particular, it has not been argued in any of the domestic decisions that the violence erupted so abruptly or so overwhelmed the police resources as to justify a decision to limit police intervention and merely attempt to minimise the damage by advising the applicants to flee (contrast Király and Dömötör, cited above, §§ 63-69, and P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, §§ 40-47, 23 November 2010).", "132. The case-file material shows that State agents explicitly urged the applicants to leave the village because they were either unwilling or considered themselves unable to protect them from mob violence. The Court also considers it established that police officers were present at the ransacking of the applicants’ houses but made no intervention worthy of note. This presence, coupled with the decision of the village council of 9 September 2002 appearing to endorse the expulsion of “socially dangerous individuals” from the village (see paragraph 11 above), created the appearance of official approval for the attackers’ actions.", "133. While it is a positive fact that the council’s decision was quashed several months later (see paragraph 45 above), this is immaterial for the assessment of the gravity of the attack and its impact on the applicants at the time that it occurred and in its immediate aftermath. Also, while the council’s decision of 9 September 2002 did not refer to the ethnicity of individuals to be expelled, there could be no doubt, given the context and its previous decision of 8 September 2002, that Roma residents were targeted by it.", "134. Therefore, the applicants who had been warned about the attack were put in a situation where they had to conclude that, because of their family relations and their ethnicity, they could not count on the protection of the law in the place where they had lived in regular accommodation for a substantial period of time (see the Appendix). The decision to leave their homes before the attack was thus not a result of the exercise of their free will but their way of protecting their physical integrity. Their feelings of fear, anguish, helplessness and inferiority were further exacerbated by understanding that their homes would likely be plundered, but that they were unable to protect them without putting their lives at risk. All in all, it grossly diminished their dignity. The Court concludes that the role of the police, which chose not to protect the applicants but advise them to leave before the “pogrom” (see paragraph 12 above) – and the fact that those events involved the invasion and ransacking of the applicants’ homes by a large mob that was driven by sentiment aimed at them as Roma (that is to say members of a vulnerable group) – was such as to constitute an affront to the applicants’ dignity sufficiently serious as to be categorised as “degrading” treatment. This assessment renders it unnecessary for the Court to resolve the dispute between the parties as to whether the ninth applicant was at home at the time of the attack and had to confront the attackers (see paragraph 18 above).", "135. The Court, accordingly, does not agree with the Government’s assessment (see paragraph 118 above) that for Article 3 to be found applicable within the context of damage to property it is essential for the applicants to have watched his or her house being destroyed. The relevance of the presence or absence of any given circumstance should not be taken in isolation but should rather be seen in the context of all the circumstances of the case (see, mutatis mutandis, Gäfgen, cited above, § 88). In view of the above findings, the Court does not find this factor decisive in the present case.", "136. As follows from the above discussion, the Court considers it established that:", "(i) the attack on the applicants’ homes was motivated by anti-Roma sentiment;", "(ii) the police failed to take any measures to protect the applicants’ homes from the attack and no objective reason was given for their inaction;", "(iii) the village council’s resolution and in particular the police presence and passivity at the scene of the attack created an appearance of official endorsement for the attack; and", "(iv) the attack constituted degrading treatment, in particular on account of the attitude of the authorities.", "137. There has, accordingly, been a violation of the substantive aspect of Article 3, taken together with Article 14 of the Convention, in respect of the Group I applicants.", "(β) Procedural aspect of Article 3, taken in conjunction with Article 14", "138. The Court notes that the domestic investigation into the attack was characterised by a number of serious omissions.", "139. To start with, the Court notes that there was abundant evidence before the investigating authorities that the local authorities, including the local police, knew that the attack was being prepared, did not take any steps to prevent it and stood by as it unfolded, apparently limiting themselves to avoiding human casualties (see, for example, the police officers’ statements in paragraph 31 above). However, no steps whatsoever were apparently taken to investigate this aspect of the case. To cite but one example, the offence which was being investigated, hooliganism (that is unmotivated violence), did not appear to cover any involvement of the State actors in the events, although there were other provisions in the Criminal Code of Ukraine which could have constituted a more appropriate ground for launching a criminal investigation into the events (see, for example, Articles 365 and 367 of the Criminal Code, paragraph 52 above, and compare Identoba and Others, cited above, § 76).", "140. Moreover, despite the presence of abundant information indicating that the local police and the mayor knew about the attack being prepared (see, for example, paragraphs 13 and 29 above), no effort was made to clarify how much and when they knew, what the source of their information was, whether they knew any organisers of the attack, whether they were in contact with them, and why they limited their role to warning the applicants to leave rather than taking any steps to avert the attack.", "141. The Court also notes that the local police, who clearly played a role in the events being investigated, took an active part in the investigation itself. Thus, the district police played an active role in the examination of the damaged houses and collecting statements in the early stage of the investigation (see paragraphs 23 and 26 above) and then had formal control over the investigation after its active phase was over and it had been suspended (see paragraph 41 above). It is true that the person in charge of the key, active part of the investigation was a senior investigator of the regional police. However, that investigator was assisted by a team which included officers from the local police (see paragraph 24 above).", "142. Circumscribing the investigation in such a fashion and the failure to explore such a clearly required line of inquiry – apparently without reasonable justification – indicates not only inadequacy and lack of thoroughness in the investigation (compare Identoba and Others, cited above, § 75) but also a lack of independence (see, mutatis mutandis, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 222, 14 April 2015).", "143. Even leaving aside the role of the authorities in the events, the steps taken to identify perpetrators who were private individuals were also insufficient. Of three individuals specifically identified as instigators of the pogrom – O.M., P.M. and I.D. (see paragraph 36 above) – apparently only two – O.M. and P.M. – were questioned. According to the summary of their statements provided by the Government, they denied any personal involvement in the attacks on the Roma houses. However, there is no indication as to whether they were questioned about their alleged role in the instigation of the attacks. Moreover, it appears that while witnesses uniformly denied that they had personally taken part in the attack on Roma houses, it appears that no witnesses – not even O.M. and P.M. – were questioned as to whether they knew any of the attackers. This is particularly striking in the case of the police officers who were present on the scene and who personally observed the attack and the attackers (see paragraph 31 above).", "144. Lastly, despite clear evidence to the effect that the attack targeted members of a specific ethnic group, it was investigated as an ordinary disturbance, and the relevant provision of the Criminal Code – which is specifically aimed at supressing violence based on racial and other prejudice (Article 161 of the Code, paragraph 52 above) – was never invoked. Even considering the hooliganism offence, the only one invoked by the authorities, no attention was apparently given to anti-Roma prejudice as a possible aggravating circumstance (see Article 67 of the Criminal Code, at paragraph 52 above). In short, there is no evidence that the authorities have conducted any investigation into anti-Roma prejudice as a likely motive of the crime (compare Fedorchenko and Lozenko, cited above, § 69).", "145. The above findings in this particular case should also be seen against the background of international reports describing a pattern of persistent anti-Roma prejudice, in particular on the part of certain law-enforcement officers, in Ukraine (see paragraphs 59-62 above; see also Fedorchenko and Lozenko, cited above – in particular §§ 33 and 68).", "146. The above-mentioned considerations are sufficient for the Court to find that the investigation into the incident cannot be considered as having been effective.", "147. There has, accordingly, been a violation of the procedural aspect of Article 3, taken in conjunction with Article 14, in respect of the Group I applicants.", "(γ) Remaining complaints", "148. In view of its findings above, the Court considers that it is not necessary to examine the remaining aspects of the Group I applicants’ complaints under Article 3 of the Convention, either taken alone or in conjunction with Article 14, because those aspects are subsumed by the already examined complaints under those provisions.", "C. Group II applicants", "Admissibility", "149. The Group II applicants (see paragraph 94 above and the Appendix) were, by their own admission, away from their homes at the time of the events in question and so had no knowledge of the imminent attack and were not prompted to flee their homes, having only learned about the damage done to them afterwards (see, mutatis mutandis, Kolyadenko and Others v. Russia, nos. 17423/05 and 5 others, § 152, 28 February 2012). Having regard to its analysis and conclusions above concerning the Group I applicants, the Court finds that the situation of the Group II applicants does not fall within the ambit of Article 3 and can be sufficiently addressed under Article 8 of the Convention (see below).", "150. It follows that the first, fourth, fifth, tenth and twelfth applicants’ complaints under Article 3, taken alone or in conjunction with Article 14, are incompatible with the Convention ratione materiae and should be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION", "151. Under Article 8 of the Convention the applicants (both Groups I and II) complained that the respondent State had been responsible for the attack on their homes, had failed to protect them from it and to investigate it effectively and that the State was responsible for the inadequate living conditions that they had experienced following their displacement. They also complained that on account of the above they had suffered discrimination owning to their Roma origin, contrary to Article 14, taken in conjunction with Article 8.", "152. Article 8 of the Convention reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties’ submissions", "1. The Government", "153. On the basis of the same arguments as those presented in respect of the Article 3 complaints, the Government argued that the applicants had failed to exhaust the available domestic remedies and to comply with the six-month rule (see paragraphs 95, 96, 103 and 104 above). The applicants disagreed.", "154. The Government furthermore submitted that there was no evidence that the removal of the Roma from the village had been part of the State’s policy. In particular, the village council’s resolution had been adopted under pressure from the mob and had then immediately been challenged by the prosecutor and quashed, so it had in no way reflected State policy. There was no evidence of any threat to the Roma in the village after 9 September 2002, even though a certain resentment towards them might still remain. Many of them had been able to safely return and reside in their houses until they had sold them. They had not provided sufficient proof that they had sold their houses for less than their market price or that the proceeds had been insufficient to obtain new housing elsewhere. The Government considered this factor, together with the fact that they had been able to sell and move, decisive in the assessment of the applicants’ Article 8 complaint. In this respect they compared the Court’s findings in (i) Fadeyeva v. Russia (no. 55723/00, § 121, ECHR 2005 ‑ IV) (where the applicant was unable to move and this was a factor in finding of a violation) and (ii) Hatton and Others v. the United Kingdom ([GC], no. 36022/97, § 127, ECHR 2003 ‑ VIII) (where the house prices in the applicants’ area and, accordingly, their ability to move, were not affected by aircraft noise). In the Government’s opinion, that case-law was relevant because the applicants in the present case had essentially exercised their right to relocate from an environment (in the village) that they had found oppressive. Furthermore, there was no evidence that the applicants’ living conditions had deteriorated after they had moved from the village, and nor had they sought any help in improving them.", "155. Accordingly, the Government considered that the applicants’ complaint was manifestly ill-founded and, alternatively, that there had been no violation of the provisions invoked by the applicants.", "2. The applicants", "156. The applicants considered that the fact that the village council resolution had been adopted under the pressure of the mob did not rule out State responsibility. They cited in this respect the case of Sampanis and Others v. Greece (no. 32526/05, §§ 82-83, 5 June 2008), where non-Roma parents’ violent opposition to the enrolment of Roma children in school did not dispense the State of the responsibility to ensure equal study conditions for those children.", "157. The fact that some of the applicants had been reduced to living in their destroyed homes while they worked out what to do in no way diminished the fact that they should not have been expected to remain in their homes in such conditions. The comparison made by the Government between the applicants’ situation and a mere decline in house prices showed a continuing failure to grasp the seriousness of the trauma they had suffered.", "B. The Court’s assessment", "1. Admissibility", "158. Above, the Court has examined and dismissed the Government’s objections related to the exhaustion of domestic remedies and compliance with the six-month rule. It considers that those objections should likewise be dismissed as far as they relate to the applicants’ complaints under Article 8, taken alone and in conjunction with Article 14.", "159. Moreover, contrary to the Government’s submissions, the above-mentioned complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.", "2. Merits", "(a) Relevant general principles", "160. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, judgment of 26 March 1985, § 23, Series A no. 91).", "161. Furthermore, the Court has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard an individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see Moldovan and Others, cited above, § 96, which cites Osman v. the United Kingdom, judgment of 28 October 1998, § 128 Reports 1998-VIII).", "162. Whether a case be analysed in terms of (i) a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or (ii) an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, § 41, Series A no. 172).", "163. The Court has dealt with cases of harassment motivated by racism which involved no physical violence. It found that the manner in which the criminal-law mechanisms had been implemented was a relevant factor for its assessment of whether the protection of the applicants’ rights had been defective to the point of constituting a violation of the respondent State’s positive obligations under Article 8 of the Convention (see Király and Dömötör, cited above, § 72).", "(b) Application of the above-mentioned principles to the present case", "164. The Court has found it established that there were grave failures on the part of the domestic authorities to protect the Group I applicants from the attack on their homes, which led it to find a violation of Article 3, taken in conjunction with Article 14 of the Convention.", "165. The same conclusions are also valid for the Group II applicants because the only difference between them and the former group was that they were absent from the village at the time of events of 7-10 September 2002 and only returned to the village later to find their homes damaged. That factor was decisive for the Court in finding that the level of seriousness needed to bring Article 3 into play was not reached in respect of those applicants. However, that does not prevent Article 8 from being engaged (see Wainwright v. the United Kingdom, no. 12350/04, § 43, ECHR 2006 ‑ X).", "166. The Court finds it established that the homes of all applicants other than the sixteenth were targeted in the attack (see paragraph 84 above) and they suffered displacement from their homes as a result.", "167. The Court is not convinced by the Government’s argument that the attack only led to the applicants being displaced for a brief period of time since they were able to return to the village afterwards and later freely chose to sell their houses and move. It acknowledges that in the present case, unlike in the case of Moldovan and Others (cited above, §§ 22, 25 and 26), there are no particular facts showing that the applicants were actively prevented from returning to the village. In fact, the applicants appear to implicitly admit that some of them were in fact able to return and live in their houses until they sold them. At the same time, the Court finds that it would have been unreasonable to expect the applicants to permanently live in damaged houses in a locality where the authorities had clearly communicated to them that they would have no protection against mob violence – particularly in circumstances where no investigation has been conducted and no person has been held responsible for the attack.", "168. There can be no doubt, therefore, that the damage caused to the applicants’ houses constituted grave and unjustified interferences with the applicants’ right to respect for their private and family life and home.", "169. The Court reiterates its findings above concerning:", "(i) the lack of any objective reason for the authorities’ failure to protect the applicants;", "(ii) the authorities’ role in the attack;", "(iii) the absence of an effective domestic investigation; and", "(iv) the general background of prejudice against Roma in Ukraine at the material time – in particular that manifested by certain law enforcement officers (see paragraphs 59-62 above).", "170. Those considerations are sufficient for the Court to find that there has been a violation of Article 8, taken in conjunction with Article 14 of the Convention, on account of the role the authorities played prior to and in the course of the attack on the applicants’ homes and their failure to conduct an effective investigation into the attack.", "171. In view of its findings above, the Court considers that it is not necessary to examine the remaining aspects of the applicants’ complaints under the aforementioned provisions of the Convention because those aspects are subsumed by the already examined complaints under those provisions.", "IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1, TAKEN ALONE AND IN CONJUCTION WITH ARTICLE 14", "172. The applicants (both Groups I and II) complained of a violation of Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention on account of the damage done to their houses and the destruction of their household items. Article 1 of Protocol No. 1 reads:", "Article 1 of Protocol No. 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "A. The parties’ submissions", "173. On the basis of the same arguments as those presented in respect of the Article 3 and 8 complaints, the Government argued that the applicants had failed to exhaust the available domestic remedies and to comply with the six-month rule (see paragraphs 95, 96, 103, 104 and 153 above). The applicants disagreed.", "174. The Government also submitted that the applicants had failed to substantiate their arguments. In this context they referred to the Court’s decision in Lisnyy and Others v. Ukraine and Russia ((dec.), nos. 5355/15, 44913/15 and 50853/15, 5 July 2016). The Government argued that the applicants’ explanation that they had supposedly lost their title documents owing to the attack on their homes was not convincing since (i) the applicants had been warned ahead of time of the attack, (ii) some houses had been sold (so it follows that the owners did have the relevant title documents), (iii) copies of title documents could be obtained from State registries and archives, and (iv) in their civil claims lodged in the criminal case some applicants claimed very specific amounts (suggesting that they must have had some documents on which to base those claims). Accordingly, the Government considered that the applicants’ complaint under Article 1 of Protocol No. 1 was manifestly ill-founded.", "175. The applicants disagreed with the Government concerning the degree of damage to their homes, relying on photographs that they provided (see paragraph 15 above) and their own statements. They considered a comparison with the Lisnyy and Others case misguided since, unlike in that case, the very fact that their homes had been damaged was not in dispute; it was only the extent of that damage that was in dispute. Moreover, they belonged to a particularly vulnerable group by virtue of their Roma ethnicity and being in a situation tantamount to that of internally displaced persons. Referring in particular to the statements of the thirteenth and sixteenth applicants (see paragraph 14 above), they stated that only “some” of them had sold their houses for “a small amount of money”. They considered that it was for the Government to search the registers and archives for proof of the applicants’ ownership. They furthermore considered the Government’s conclusion (that their complaint was manifestly ill-founded for lack of proof) to have been based on racist stereotypes about the Roma as being rootless.", "B. The Court’s assessment", "176. The Court notes that the Government also raised objections as to the applicants’ failure to exhaust domestic remedies and to comply with the six-month rule. However, it does not consider it necessary to examine these objections, given that this part of the application is, in any event, inadmissible for the following reasons.", "177. The Court notes that the applicants have failed to provide any evidence in support of their claims (see Lisnyy and Others (dec.), cited above, §§ 28-32, and contrast Kerimova and Others v. Russia, nos. 17170/04 and 5 others, §§ 292-93, 3 May 2011). The applicants have not refuted the Government’s submission, supported by statements by some of the applicants made in the domestic proceedings (see paragraph 14 above), that the former Roma residents of Petrivka were able to sell their homes in that village after the attack, strongly suggesting that they had had proof of title.", "178. However, the applicants did not provide any details of those deals or any relevant documentation. Neither have they provided detailed descriptions of the property they lost, including the houses and the household items, or specified which of the applicants were the owners. They did not refer to any specific efforts by them or their representatives to obtain evidence from any public records which may remain available even if the Court is prepared to accept their assertion that their documents were lost as a result of their displacement. The latter also concerns the first applicant. It is true that it is undisputed that the house where he used to live was seriously damaged by fire (see paragraph 118 above) and so likely could not be sold. However, it remains the case that he has not provided any evidence of the title or any effort to obtain such evidence from public records, or even a detailed description of his property.", "179. In such circumstances the Court considers that the applicants have failed to develop and substantiate their complaint or to provide a cogent explanation for their inability to do so. Accordingly, their complaint under Article 14, taken in conjunction with Article 1 of Protocol No. 1 is likewise unsubstantiated.", "180. The Court concludes that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "181. The applicants complained that they had no effective remedy in respect of their other complaints. They relied on Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "182. The Government contested that argument.", "183. The Court, having declared inadmissible certain complaints under Article 3 and Article 1 of Protocol No. 1 (taken alone and in conjunction with Article 14, see paragraphs 150 and 180 above) concludes that there is no arguable claim for the purposes of Article 13 in respect of those complaints (see, for example, Valeriy Fuklev v. Ukraine, no. 6318/03, § 98, 16 January 2014); therefore, the complaint under Article 13 in that part must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.", "184. The remainder of the complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.", "185. However, in view of its findings above, the Court does not find it necessary to examine it separately because it is subsumed by the already examined complaints under Articles 3 and 8 of the Convention (see, mutatis mutandis, Sergey Savenko v. Ukraine, no. 59731/09, § 48, 24 October 2013).", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "186. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "187. The first three, the fifth to fifteenth, the eighteenth and nineteenth applicants claimed 85,984.52 euros (EUR) each in respect of non-pecuniary damage. Their claims in respect of pecuniary damage are set out in the Appendix. The fourth applicant claimed EUR 36,684 for non-pecuniary damage but submitted no claim for pecuniary damage.", "188. The Government considered that there was no causal link between the damage claimed and the violations found. In any event they considered the claims excessive.", "189. In view of its findings above concerning the applicants’ complaint under Article 1 of Protocol No. 1, the Court rejects the applicants’ claim in respect of pecuniary damage. On the other hand, ruling on an equitable basis, the Court considers it reasonable to award the following amounts in respect of non-pecuniary damage:", "(i) EUR 11,000 to the second, third, sixth to ninth, eleventh, thirteenth to fifteenth, eighteenth and nineteenth applicants each, plus any tax that may be chargeable on those amounts; and", "(ii) EUR 9,000 to the first, fourth, fifth, tenth and twelfth applicants each, plus any tax that may be chargeable on those amounts.", "B. Costs and expenses", "190. The applicants made no claim for costs and expenses. Accordingly, the Court makes no award under this head.", "C. Default interest", "191. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The case concerns the killing on 19 July 1996 of Mr Angelov and Mr Petkov by a member of the military police who was attempting to arrest them.", "11. All the applicants are Bulgarian nationals of Roma origin.", "12. Ms Anelia Kunchova Nachova, who was born in 1995, is Mr Angelov's daughter. Ms Aksiniya Hristova, who was born in 1978, is Ms Nachova's mother. Both live in Dobrolevo, Bulgaria. Ms Todorka Petrova Rangelova and Mr Rangel Petkov Rangelov, who were born in 1955 and 1954 respectively and live in Lom, Bulgaria, are Mr Petkov's parents.", "A. Circumstances surrounding the deaths of Mr Angelov and Mr Petkov", "13. In 1996 Mr Angelov and Mr Petkov, who were both 21 years old, were conscripts in the Construction Force ( Строителни войски ), a division of the army dealing with the construction of apartment blocks and other civilian projects.", "14. Early in 1996 Mr Angelov and Mr Petkov were arrested for being repeatedly absent without leave. On 22 May 1996 Mr Angelov was sentenced to nine months'imprisonment and Mr Petkov to five months'imprisonment. Both had previous convictions for theft.", "15. On 15 July 1996 they fled from a construction site outside the prison where they had been brought to work and travelled to the home of Mr Angelov's grandmother, Ms Tonkova, in the village of Lesura. Neither man was armed.", "16. Their absence was reported the following day and their names put on the military police's wanted list. A warrant for their arrest was received on 16 July 1996 by the Vratsa Military Police Unit.", "17. At around twelve noon on 19 July 1996, the officer on duty in the Vratsa Military Police Unit received an anonymous telephone message that Mr Angelov and Mr Petkov were hiding in the village of Lesura. On at least one of the previous occasions when he had been absent without leave, it was there that Mr Angelov had been found and arrested.", "18. The commanding officer, Colonel D., decided to dispatch four military police officers, under the command of Major G., to locate and arrest the two men. At least two of the officers knew one or both of them. Major G. apparently knew Lesura because, according to a secretary who worked at the town hall and was heard later as a witness, his mother was from the village.", "19. Colonel D. told the officers that “in accordance with the rules” they should carry their handguns and automatic rifles and wear bullet- proof vests. He informed them that Mr Angelov and Mr Petkov were “criminally active” ( криминално проявени ) – an expression used to denote persons with previous convictions or persons suspected of an offence – and that they had escaped from detention. The officers were instructed to use whatever means were dictated by the circumstances to arrest them.", "20. The officers immediately left for Lesura in a jeep. Two officers wore uniforms while the others were in civilian clothes. Only Major G. wore a bullet-proof vest. He was armed with a personal handgun and a 7.62 mm calibre Kalashnikov automatic rifle. The other men carried handguns. Three Kalashnikov automatic rifles remained in the boot of the vehicle throughout the operation.", "21. The officers were briefed orally by Major G. on their way to Lesura. Sergeant N. was to cover the east side of the house, Major G. the west side and Sergeant K. was to go into the house. Sergeant S., the driver, was to remain with the vehicle and keep watch over the north side.", "22. At around 1 p.m. the officers arrived in Lesura. They asked a secretary at the town hall and one of the villagers, Mr T. M., to join them and show them Mr Angelov's grandmother's house. The vehicle drove into Lesura's Roma district.", "23. Sergeant N. recognised the house since he had previously arrested Mr Angelov there for being absent without leave.", "24. As soon as the jeep drew up in front of the house, between 1 and 1.30 p.m., Sergeant K. recognised Mr Angelov, who was inside, behind the window. Having noticed the vehicle, the fugitives tried to escape. The officers heard the sound of a window pane being broken. Major G. and Sergeants K. and N. jumped out of the vehicle while it was still moving. Major G. and Sergeant K. went through the garden gate, the former going to the west side of the house, and the latter entering the house. Sergeant N. headed towards the east side of the house. Sergeant S. remained with the car, together with the secretary who worked at the town hall and Mr T. M.", "25. Sergeant N. later testified that, having noticed Mr Angelov and Mr Petkov escaping through the window and running towards a neighbour's yard, he had shouted: “Stop, military police!” He had pulled out his gun, but had not fired any shots. The two men had carried on running. Sergeant N. had run out on to the street in an effort to intercept them by cutting past several houses. While running, he had heard Major G. shout: “Freeze, military police, freeze [or] I'll shoot!” It was then that the shooting had started.", "26. Major G. stated in his testimony:", "“... I heard Sergeant N. shouting:'Freeze, police'... I saw the conscripts; they were running and then stopped in front of the fence between Ms Tonkova's and the neighbour's yards ... I saw that they were trying to jump over the [chain-link] fence, so I shouted:'Freeze, or I'll shoot !'I released the safety catch and loaded the automatic gun. Then I fired a shot in the air, holding the automatic rifle upwards with my right hand, almost perpendicular to the ground ... The conscripts climbed over the [chain-link] fence and continued to run, I followed them, then I fired one, two or three more times in the air and shouted:'Freeze!', but they continued running. I again fired shots in the air with the automatic and shouted:'Freeze, or I will shoot with live cartridges .'I warned them again, but they continued running without turning back. I fired to the right [of the two men] with the automatic after the warning, aiming at the ground, hoping that this would make them stop running. I again shouted'Freeze!'when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence. I aimed at their feet. The ground where I stood was at a lower level ... [B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them. The gradient there was a bit steep, [I] was standing on lower ground ... the second fence was on the highest ground, that is why when I fired the first time I aimed to the side [of the two men], as I considered that nobody from the neighbouring houses would be hurt, and the second time I aimed at the conscripts, but fired at their feet. Under Regulation 45 we can use firearms to arrest members of the military forces who have committed a publicly prosecutable offence and do not surrender after a warning, but in accordance with paragraph 3 of [that regulation] we have to protect the lives of the persons against whom [we use firearms] – for that reason I fired at [the victims'] feet – with the intention of avoiding fatal injury. The last time that I shot at the conscripts'feet, I was twenty metres away from them and they were exactly at the south-east corner of the neighbouring yard. After the shooting they both fell down ...They were both lying on their stomachs, and both gave signs of life, ... moaning ... then Sergeant S. appeared, I called him ... and handed him my automatic rifle ...”", "27. According to the statements of the three subordinate officers, Mr Angelov and Mr Petkov were lying on the ground in front of the fence, with their legs pointing in the direction of the house from which they had come. One of them was lying on his back and the other on his stomach.", "28. A neighbour, Mr Z., who lived opposite Mr Angelov's grandmother, also gave evidence. At about 1 or 1.30 p.m. he had seen a military jeep pull up in front of Ms Tonkova's house. Then he had heard somebody shout: “Don't run, I am using live cartridges .” He had then heard shots. He had looked into the next yard and seen Mr Angelov, whom he knew, and another man leap over the chain-link fence between Ms Tonkova's and another neighbour's yards. He had not seen the man who had shouted as he was hidden from view behind Ms Tonkova's house. Then he had seen Mr Angelov and Mr Petkov fall to the ground and the man who had shot them emerge, holding an automatic rifle. Mr Z. further stated:", "“The other men in uniform then started remonstrating with [the man who had shot Mr Angelov and Mr Petkov] telling him that he should not have fired, that he should not have come with them. Of those who came in the jeep, only the senior officer fired ... I know him by sight, he has relatives in Lesura .”", "29. Sergeant S. stated that on arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house: “Freeze, police!” He had also heard Major G. shout “Freeze, police!” several times from the west side of the house. Then Major G. had started shooting with his automatic weapon, while continuing to shout. Sergeant S. had then entered the yard. He had seen Major G. leap over the chain-link fence and heard him shouting. He had gone up to him, had taken his automatic rifle and seen Mr Angelov and Mr Petkov lying on the ground next to the fence. They were still alive. At that moment Sergeant K. had come out of the house. Major G. had gone to get the jeep and had reported the incident over the vehicle radio. When they returned, Sergeant N. had appeared from the neighbouring street and helped them put the wounded men in the vehicle.", "30. The head of the Vratsa Military Police Unit and other officers were informed of the incident at around 1.30 p.m.", "31. Sergeant K. testified that he had entered the house and had been speaking to Mr Angelov's grandmother and another woman when he heard Major G. shouting at Mr Angelov and Mr Petkov to stop. In the house, he had noticed that a window pane in the room overlooking the yard had been broken. He had been on the verge of leaving the house when he heard shooting coming from behind the house. On his way to the yard he had met Major G., who had told him that the fugitives had been wounded. Sergeant K. had then climbed over the chain-link fence and approached the wounded men, who were still alive and moaning. He had found himself holding the automatic rifle, but could not remember how it had come into his possession. He had opened the magazine and seen no cartridges in it. There was only one cartridge left in the barrel.", "32. Immediately after the shooting, a number of people from the vicinity gathered. Sergeant K. and Sergeant S. took the wounded men to Vratsa Hospital, while Major G. and Sergeant N. remained at the scene.", "33. Mr Angelov and Mr Petkov died on the way to Vratsa. They were pronounced dead on arrival at the hospital.", "34. Mr Angelov's grandmother, Ms Tonkova, gave the following account of the events. Her grandson and Mr Petkov had been in her house when they had noticed a jeep approaching. She had gone outside and seen four men in uniform. They had all entered the yard. One of them had gone round the house and started shooting with an automatic rifle for a very long time. The other three men were also armed but had not fired any shots. She had been in the yard, pleading with the man who had been shooting to stop. However, he had walked towards the back of the house. Then she had heard shooting in the backyard. She had followed and then seen her grandson and Mr Petkov lying in the neighbours'yard with bullet wounds.", "35. According to another neighbour, Mr M.M., all three policemen were shooting. Two of them had fired shots in the air and the third officer – who had been on the west side of the house (Major G.) – had been aiming at someone. Mr M.M. had heard some fifteen to twenty shots, perhaps more. Then he had seen the military policemen go to the neighbouring yard, where Mr Angelov and Mr Petkov had fallen. That yard belonged to Mr M.M. and his daughter. On seeing his grandson – a young boy – standing there, Mr M.M. had asked Major G. for permission to approach and to take him away. Major G. had pointed his gun at him in a brutal manner and had insulted him, saying: “You damn Gypsies!” ( “ мамка ви циганска ” ).", "B. The investigation into the deaths", "36. On 19 July 1996 all the officers involved made separate reports on the incident to the Vratsa Military Police Unit. None of them was tested for alcohol.", "37. A criminal investigation into the deaths was opened the same day, and between 4 and 4.30 p.m. a military investigator inspected the scene. In his report he described the scene, including the respective positions of Ms Tonkova's house, the first chain-link fence, and the spent cartridges and bloodstains found there. He indicated that the structure of the first chain-link fence was damaged and the fence had been torn down in one place.", "38. A sketch map was appended to the report. It showed the yard of Ms Tonkova's house and the neighbouring yard where Mr Angelov and Mr Petkov had fallen. The places where spent cartridges had been found were indicated. The sketch map and the report gave only some of the measurements of the yards. The gradient and other characteristics of the terrain and the surrounding area were not described.", "39. Nine spent cartridges were retrieved. One cartridge was found in the street, in front of Ms Tonkova's house (apparently not far from where the jeep had stopped). Four cartridges were discovered in Ms Tonkova's yard, behind the house, close to the first chain-link fence separating her yard from the neighbour's yard. Three cartridges were found in the yard of the neighbour (Mr M.M), close to the place where the bloodstains were found. The exact distance between those cartridges and the bloodstains was not given. A ninth cartridge was found subsequently and handed in to the military police by Mr Angelov's uncle. There is no record of where it was found.", "40. The bloodstains were a metre apart. They were marked on the sketch map as being slightly more than nine metres from the first chain-link fence. The distance between the bloodstains and the second fence that Mr Angelov and Mr Petkov had apparently been trying to scale when they were shot was not indicated. Samples of the bloodstains were taken by the investigator.", "41. On 21 July 1996, a pathologist carried out an autopsy.", "According to autopsy report no. 139/96, the cause of Mr Petkov's death was “a wound to the chest”, the direction of the shot having been “from front to back”. The wound was described as follows:", "“There is an oval-shaped wound of 2.5 cm by 1 cm in the chest, at a distance of 144 cm from the feet, with missing tissues, and jagged and compressed edges in the area of the left shoulder. There is an oval-shaped wound of 3 cm in the back, to the left of the infrascapular line at a distance of 123 cm from the feet with missing tissues, jagged and torn edges turned outwards.”", "42. As regards Mr Angelov, the report found that the cause of death had been “a gunshot wound, which [had] damaged a major blood vessel” and that the direction of the shot had been “from back to front”. It was further stated:", "“There is a round wound on the left of the buttocks at a distance of 90 cm from the feet ... with missing tissue, jagged walls and edges, and a diameter of about 0.8 cm ... There is an oval wound of 2.1 cm with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [of the abdomen], at a distance of 95 cm from the feet, slightly to the left of the navel.”", "43. The report concluded that the injuries had been caused by an automatic rifle fired from a distance.", "44. On 22, 23 and 24 July 1996 the four military police officers, two neighbours (M.M. and K.), the secretary who worked at the town hall, and Mr Angelov's uncle were questioned by the investigator. Mr Petkov's mother was also questioned subsequently.", "45. On 1 August 1996 Major G.'s automatic rifle, a cartridge that had been found in it and the nine spent cartridges found at the scene were examined by a ballistics expert from the Vratsa Regional Directorate of Internal Affairs. According to his report, the automatic rifle was serviceable, all nine retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable.", "46. A report by a forensic expert dated 29 August 1996 found an alcohol content of 0.55 g/l in Mr Petkov's blood and 0.75 g / l in Mr Angelov's blood (under Bulgarian law it is an administrative offence to drive with a blood alcohol content of more than 0.5 g / l ).", "47. On 20 September 1996 a forensic examination of the bloodstains found at the scene was carried out by an expert from the Vratsa Regional Directorate of Internal Affairs and they were found to match the victims'blood groups.", "48. On 20 January and on 13 February 1997 another neighbour (Mr T.M.) and Ms Hristova (one of the applicants) were questioned. On 26 March 1997 Mr Angelov's grandmother and a neighbour, Z., were questioned.", "49. On 7 January 1997 the families of Mr Angelov and Mr Petkov were given access to the investigation file. They requested that three more witnesses, T.M., Ms Tonkova and Z.H. be heard. Their request was granted. The witnesses were heard by the investigator on 20 January and 26 March 1997. The applicants did not ask for any other evidence to be obtained.", "50. On 31 March 1997 the investigator completed the preliminary investigation and drew up a final report. He noted that Mr Angelov and Mr Petkov had escaped from detention while serving a prison sentence, and had thus committed an offence. Major G. had done everything within his power to save their lives: he had instructed them to stop and surrender and had fired warning shots. He had aimed at them only after seeing that they were continuing to run away and might escape. He had not sought to injure any vital organs. The investigator therefore concluded that Major G. had acted in accordance with Regulation 45 of the Military Police Regulations and made a recommendation to the Pleven regional prosecutor's office that the investigation should be closed as Major G. had not committed an offence.", "51. On 8 April 1997 the Pleven military prosecutor accepted the investigator's recommendation and closed the preliminary investigation into the deaths. He concluded that Major G. had proceeded in accordance with Regulation 45 of the Military Police Regulations. He had warned the two men several times and fired shots in the air. He had shot them only because they had not surrendered, as there had been a danger that they might escape. He had sought to avoid inflicting fatal injuries. No one else had been hurt.", "52. When describing the victims'personal circumstances, including details of their family, education and previous convictions, the prosecutor stated in the order that both men originated from “minority families”, an expression mainly used to designate people from the Roma minority.", "53. By an order of 11 June 1997, the prosecutor of the armed forces prosecutor's office dismissed the applicants'subsequent appeal on the grounds that Mr Angelov and Mr Petkov had provoked the shooting by trying to escape and that Major G. had taken the steps required by law in such situations. Therefore, the use of arms had been lawful under Regulation 45 of the Military Police Regulations.", "54. On 19 November 1997 the prosecutor from the investigation review department of the armed forces prosecutor's office dismissed a further appeal on grounds similar to those that had been relied on by the other public prosecutors.", "II. REPORTS OF INTERNATIONAL ORGANISATIONS ON ALLEGATIONS OF DISCRIMINATION AGAINST ROMA", "55. In its country reports of the last few years, the Council of Europe's European Commission against Racism and Intolerance (ECRI) has expressed concern regarding racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia.", "56. The report on the situation of fundamental rights in the European Union and its member States in 2002, prepared by the European Union network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of European Union member States, such as Austria, France, Greece, Ireland, Italy and Portugal.", "57. In its second report on Bulgaria, published in March 2000, ECRI stated, inter alia :", "“Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma/Gypsy community. ... [T]he Human Rights Project documents in its Annual Report for 1998 numerous ... cases of police misconduct towards ... Roma ... It cites as the most common violations: use of excessive physical force during detention for the purposes of extorting evidence; unjustified use of firearms ... and threats to the personal security of individuals who had complained against the police to the competent authorities. ... The Human Rights Project notes ... that the majority of complaints filed by this non-governmental organisation on behalf of Roma victims of police violence have not been followed up by the authorities. ... [V] ictims seem unwilling to come forward with complaints, particularly when they are awaiting court sentences ... [There is apparently also] some unwillingness on the part of the authorities to admit that problems of police misconduct do exist. ...", "ECRI [reiterates its recommendation] that an independent body be set up – acting at central and local level – to investigate police, investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished. ...", "ECRI is concerned at the persistence of widespread discrimination against members of the Roma/Gypsy community in Bulgaria. ... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards Roma/Gypsy communities, often with the silent collusion of local police. ”", "58. In its third report on Bulgaria, published in January 2004, ECRI stated, inter alia :", "“ [Since ECRI's second report,] there have been no changes in the Criminal Code [to ensure that criminal law provisions fully allow any racist motivation to be taken into account]. ... ECRI recommends that the Bulgarian authorities insert a provision in the Criminal Code expressly stating that racist motivation for any ordinary offence constitute [s] an aggravating circumstance. ...", "ECRI is concerned about allegations of instances of excessive use of firearms by the police, which have sometimes led to the death of Roma. ... ECRI strongly recommends that the Bulgarian authorities take steps to restrict the use of firearms by the law enforcement agencies to cases where their use is really necessary. In particular, it urges the Bulgarian authorities to amend the law to this end and ensure that international standards are conformed to in practice in this field.", "ECRI is particularly concerned about the findings ... that the proportion of people of Roma origin who state that they have been subjected to physical violence in police stations is three times higher than the proportion of people of Bulgarian origin. ... So far, the Bulgarian authorities have not set up an independent body to investigate ill ‑ treatment or acts of discrimination committed by members of the police force. ...", "ECRI is pleased to learn that a specialised human rights committee was set up in the National Police Department in August 2000 ... Numerous schemes have been launched to provide human rights training for police officers ...", "...", "The Framework Programme for Equal Integration of Roma in Bulgarian Society is unanimously considered, including by Roma representatives, to be well structured and fairly comprehensive ... There is, however, a unanimous feeling within the Roma community and among non-governmental organisations, that, apart from the few initiatives mentioned in this report, the programme has remained a dead letter ... The view in certain quarters is that the government lacks the political resolve to carry through such a programme ... ECRI is very concerned to learn that, four years after the adoption of the Framework Programme, its implementation is still in its early stages. ... ”", "59. Non-governmental organisations, such as Human Rights Project and Amnesty International have reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents." ]

[ "III. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Unpublished Regulations on the Military Police, issued by the Ministry of Defence on 21 December 1994", "60. Section 45 of the Regulations (Regulation 45), as in force at the relevant time, provided as follows:", "“(1) Military police officers may use firearms ... under the following circumstances :", "...", "2. to arrest a person serving in the army who has committed or is about to commit a publicly prosecutable offence and who does not surrender after being warned ...", "(2) The use of force shall be preceded by an oral warning and a shot fired in the air ...", "(3) When using firearms military police officers shall be under a duty, as far as possible, to protect the life of the person against whom they use force and to assist the wounded ...", "...", "(5) Whenever firearms have been used, a report shall be prepared describing the circumstances which occasioned their use; [the report] shall be transmitted to the superiors of the officer concerned.”", "61. In December 2000 Regulation 45 was superseded by Decree no. 7 of 6 December 2000 on the use of force and firearms by military police (published in Official Gazette no. 102/2000 and amended in 2001). According to Article 21 of the decree, firearms may be used, inter alia, for the arrest of any person who has committed an offence of the category of publicly prosecuted offences. The vast majority of offences under the Criminal Code fall within that category, including, for example, petty theft. According to Articles 2, 4 § 1 and 21 of the decree, the nature of the offence committed by the person against whom the force and firearms are used and the character of the offender are factors to be taken into consideration.", "B. Other relevant law and practice on the use of force during arrest", "62. Article 12 of the Criminal Code regulates the degree of force that may be used in self-defence. It requires essentially that any action in self ‑ defence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances. The provision does not regulate cases where force has been used by a police officer or another person in order to effect an arrest without there being an attack on the arresting officer or any third party. Until 1997 there were no other provisions regulating this issue. However, the courts appear to have applied Article 12 in certain cases concerning the use of force to effect an arrest.", "63. To fill that vacuum, in its Interpretative Direction no. 12 issued in 1973, the Supreme Court proclaimed, without further clarification, that causing harm in order to effect an arrest should not lead to prosecution if no more force was used than was necessary (12-1973-PPVS).", "64. In its Decision no. 15 of 17 March 1995, the Supreme Court, while noting that the use of force in order to effect an arrest was not regulated by law and thus engendered difficulties for the courts, considered that the principles to be applied were those that had been identified by legal commentators. In particular, inflicting harm would be justified only where there was a reasonable suspicion that the person to be arrested had committed an offence, there were no other means to effect the arrest and the harm caused was proportionate to the seriousness of the offence. The Supreme Court also stated:", "“... [Causing harm to an offender in order to effect an arrest] is an act of last resort. If the offender does not attempt to escape or ... does attempt to escape, but to a known hiding place, causing harm will not be justified ...", "The harm caused must be proportionate to the seriousness ... of the offence. If the offender has committed an offence representing insignificant danger to the public, his life and health cannot be put at risk. Putting his life or health at risk may be justified, however, where a person is in hiding after committing a serious offence (such as murder, rape or robbery).", "The means used to effect the arrest (and the harm caused) must be reasonable in the circumstances. This is the most important condition for lawfulness ...", "Where the harm caused exceeds what was necessary ..., that is to say, where it does not correspond to the seriousness of the offence and the circumstances obtaining during the arrest, ... the person inflicting it will be liable to prosecution ...”", "65. In 1997 Parliament decided to fill the legislative vacuum by adding a new Article 12a to the Criminal Code. It provides that causing harm to a person while arresting him or her for an offence shall not be punishable where no other means of effecting the arrest existed and the force used was necessary and lawful. The force used will not be considered “necessary” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary. Few judgments interpreting Article 12a have been reported.", "C. The Code of Criminal Procedure", "66. Article 192 provides that proceedings concerning publicly prosecutable offences may only be initiated by a prosecutor or an investigator acting on a complaint or ex officio. Under Article 237 § 6, as worded until 1 January 2000, the victim had a right of appeal to a higher- ranking prosecutor against a decision not to proceed with pending criminal proceedings. The victim had no other means of challenging a refusal to prosecute.", "67. When military courts have jurisdiction to hear a case, as for example when it concerns military police officers, the responsibility for conducting the investigation and prosecution lies with the military investigators and prosecutors, whose decisions are open to appeal before the Chief Public Prosecutor.", "68. Article 63 entitles victims of crime to join the criminal proceedings, and in that connection to claim damages, to inspect the case file and take copies of relevant documents. They may also adduce evidence, raise objections, make applications and appeal against decisions of the investigating and prosecuting authorities.", "D. The Protection against Discrimination Act", "69. The Protection against Discrimination Act was passed in September 2003 and came into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery to provide effective protection against unlawful discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services.", "70. Section 9 provides for a shifting burden of proof in discrimination cases. Under that section, where the claimant has proved facts from which an inference that there has been discriminatory treatment might be drawn, it is incumbent on the defendant to prove that there has been no violation of the right to equal treatment. The Act also provides for the creation of a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints.", "IV. RELEVANT INTERNATIONAL AND COMPARATIVE LAW", "A. United Nations principles on the use of force", "71. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.", "72. Paragraph 9 provides:", "“Law enforcement officials shall not use firearms against persons except in self- defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”", "73. According to other provisions of the Principles, law enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved” (paragraph 5). Also, “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law” (paragraph 7). National rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”.", "74. Paragraph 23 of the Principles states that victims or their family should have access to an independent process, “including a judicial process”. Further, paragraph 24 provides:", "“Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.”", "75. The United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council in Resolution 1989/65, provide, inter alia, that there shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions and that the investigation should aim at, inter alia, determining “any pattern or practice which may have brought about” the death.", "Paragraph 11 states:", "“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles.”", "Paragraph 17 states:", "“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law...”", "B. International instruments and comparative law on racist violence", "76. The relevant parts of Article 4 of the International Convention on the Elimination of all forms of Racial Discrimination, ratified by Bulgaria in 196 6, in force since 1969 and published in the Official Gazette in 1992, provide:", "“States Parties ... undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, [racial] discrimination and, to this end ...", "(a) Shall declare an offence punishable by law ... all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ... ”", "77. In its views of 16 March 1993 in Communication no. 4/91, L.K. v. the Netherlands, which concerned racist threats uttered by private individuals against Mr L.K. and the inadequate reaction by the authorities to the victim's complaint, the Committee on the Elimination of All Forms of Racial Discrimination stated, inter alia, that it was incumbent on the State to investigate with due diligence and expedition cases of incitement to racist discrimination and violence.", "78. The relevant part of Article 6 of the Council of Europe's Framework Convention for the Protection of National Minorities, in force in Bulgaria since 1999, provides:", "“ The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity. ”", "79. In its decision of 21 November 2002, the United Nations Committee Against Torture (“ the CAT”), examining Complaint no. 161/2000 submitted by Hajrizi Dzemajl and others against Yugoslavia, found that a mob action by non-Roma residents of Danilovgrad, Montenegro, who destroyed a Roma settlement on 14 April 1995 in the presence of police officers, was “committed with a significant level of racial motivation”. That fact aggravated the violation of Article 16 § 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment found in the case. In assessing the evidence, the CAT noted that it had not received a written explanation from the State Party concerned and decided to rely on “the detailed submissions made by the complainants”.", "80. European Union Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, provide, in Article 8 and Article 10 respectively:", "“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.", "2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.", "3. Paragraph 1 shall not apply to criminal procedures.", "...", "5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”", "81. In 2002 the European Commission published a Proposal for a Council Framework Decision on Combating Racism and Xenophobia, Article 8 of which includes, among measures to be implemented by member States in that area, action to ensure that in criminal law racial motivation is taken into consideration as an aggravating circumstance.", "82. In April 2005 the European Monitoring Centre on Racism and Xenophobia published a comparative overview of racist violence and responses to it in fifteen of the member States of the European Union. It noted, inter alia, that traditionally the criminal law in most of the jurisdictions surveyed did not specifically refer to “racist violence”, the focus not being on the motivation behind acts of violence. However, that tradition was slowly changing as laws began to recognise that crime could be “racially motivated”. In particular, racist motivation was increasingly being considered as an aggravating factor for sentencing purposes under the legislation of some member States. The relevant legislation in the following countries specifically provided for that possibility: Austria, Belgium, Denmark, Finland, France, Italy, Portugal, Spain, Sweden and the United Kingdom. In particular, Article 132-76 of the French Criminal Code, which was introduced in February 2003, provides in its second paragraph for an “objective” definition of racism as an aggravating circumstance leading to an increase in sentence:", "“The penalties incurred for a crime or major offence shall be increased where the offence is committed on account of the victim's actual or supposed membership or non-membership of a particular ethnic group, nation, race or religion.", "The aggravating circumstance defined in the first paragraph is constituted where the offence is preceded, accompanied or followed by written or spoken comments, images, objects or acts of any kind which damage the honour or consideration of the victim or of a group of persons to which the victim belongs on account of their actual or supposed membership or non-membership of a particular ethnic group, nation, race or religion.”", "THE LAW", "I. SCOPE OF THE CASE", "83. In their request for the referral of the case to the Grand Chamber and in their written observations, the Government asked the Grand Chamber to re-examine the issues raised by the case under Article 14 of the Convention. At the hearing before the Court, the Government's representatives stated that they accepted the Chamber's findings under Articles 2 and 13.", "84. The applicants asked the Court to deal with the issues under Article 14 alone, as the Chamber's conclusions under Articles 2 and 13 of the Convention were not contested.", "85. The Court reiterates that the consequence of the panel's acceptance of a referral request is that the whole “ case ” is referred to the Grand Chamber to be decided afresh by means of a new judgment. The “ case ” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment, and not only the serious “ question ” or “ issue ” at the basis of the referral ( see K. and T. v. Finland [GC], no. 25702/94, §§ 139- 41, ECHR 2001- VII ).", "86. Notwithstanding the parties'wishes to confine the rehearing procedure to the issues raised by the case under Article 14 of the Convention, the Grand Chamber must also deal with the issues raised under Articles 2 and 13 of the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION", "87. The applicants complained that Mr Angelov and Mr Petkov had been killed in violation of Article 2 of the Convention. It was alleged that they had died as a result of the failure of domestic law and practice to regulate in a Convention- compatible manner the use of firearms by State agents. In effect, State agents had been authorised in the instant case to use lethal force in circumstances where this was not absolutely necessary. This fact alone violated Article 2. The applicants also complained that the authorities had failed to conduct an effective investigation into the deaths.", "88. Article 2 of the Convention provides:", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "A. The Chamber judgment", "89. The Chamber held that Article 2 of the Convention prohibited the use of firearms to arrest persons who, like Mr Angelov and Mr Petkov, were suspected of having committed non-violent offences, were not armed and did not pose any threat to the arresting officers or others. The respondent State was accordingly responsible in the circumstances of the instant case for deprivation of life in violation of Article 2, as lethal force had been used to arrest Mr Angelov and Mr Petkov. The violation of Article 2 was further aggravated by the fact that excessive firepower had been used and by the authorities'failure to plan and control the arrest operation in a manner that complied with Article 2.", "90. The Chamber further found that there had been a violation of the respondent State's obligation under Article 2 § 1 of the Convention to investigate effectively the deaths of Mr Angelov and Mr Petkov. In particular, the investigation had been characterised by serious unexplained omissions and inconsistencies and its approach had been flawed in that it had applied a domestic - law standard that was not comparable to the “no more than absolutely necessary” standard required by Article 2 § 2.", "91. As to the applicants'allegation that there had also been a violation of the respondent State's obligation to protect life by law, the Chamber considered that it had dealt with all relevant aspects of the case and that it was not necessary to examine that issue separately.", "B. The parties'submissions", "92. Before the Grand Chamber, the Government and the applicants stated that they accepted the Chamber's findings in respect of Article 2 of the Convention.", "C. The Court's assessment", "1. Whether Mr Angelov and Mr Petkov were deprived of their lives in violation of Article 2", "(a) General principles", "93. Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe. The Court must subject allegations of a breach of this provision to the most careful scrutiny. In cases concerning the use of force by State agents, it must take into consideration not only the actions of the agents of the State who actually administered the force but also all the surrounding circumstances, including such matters as the relevant legal or regulatory framework in place and the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 46, § 150, and Makaratzis v. Greece [GC], no. 50385/99, §§ 5 6 -59, ECHR 2004-XI ).", "94. As the text of Article 2 § 2 itself shows, the use of lethal force by police officers may be justified in certain circumstances. However, any use of force must be “ no more than absolutely necessary”, that is to say it must be strictly proportionate in the circumstances. In view of the fundamental nature of the right to life, the circumstances in which deprivation of life may be justified must be strictly construed (see Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports of Judgments and Decisions 1997-VI, pp. 2097- 98, § 171, p. 2102, § 181, p. 2104, § 186, p. 2107, § 192, and p. 2108, § 193, and McKerr v. the United Kingdom, no. 28883/95, § § 108 et seq ., ECHR 2001 ‑ III).", "95. Accordingly, and with reference to Article 2 § 2 (b) of the Convention, the legitimate aim of effecting a lawful arrest can only justify putting human life at risk in circumstances of absolute necessity. The Court considers that in principle there can be no such necessity where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence, even if a failure to use lethal force may result in the opportunity to arrest the fugitive being lost (see the Court's approach in McCann and Others, cited above, pp. 45-46, §§ 146- 50, and pp. 56- 62, §§ 192- 214, and, more recently, in Makaratzis, cited above, §§ 64-66; see also the Court's condemnation of the use of firearms against unarmed and non-violent persons trying to leave the German Democratic Republic in Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 4 4801/98, §§ 87, 96 and 97, ECHR 2001 ‑ II).", "96. In addition to setting out the circumstances when deprivation of life may be justified, Article 2 implies a primary duty on the State to secure the right to life by putting in place an appropriate legal and administrative framework defining the limited circumstances in which law enforcement officials may use force and firearms, in the light of the relevant international standards (see Makaratzis, cited above, §§ 57-59, and the relevant provisions of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, paragraphs 71-74 above ). In line with the above-mentioned principle of strict proportionality inherent in Article 2 (see McCann and Others, cited above, p. 46, § 1 49), the national legal framework regulating arrest operations must make recourse to firearms dependent on a careful assessment of the surrounding circumstances, and, in particular, on an evaluation of the nature of the offence committed by the fugitive and of the threat he or she posed.", "97. Furthermore, the national law regulating policing operations must secure a system of adequate and effective safeguards against arbitrariness and abuse of force and even against avoidable accident (see Makaratzis, cited above, § 58). In particular, law enforcement agents must be trained to assess whether or not there is an absolute necessity to use firearms, not only on the basis of the letter of the relevant regulations, but also with due regard to the pre-eminence of respect for human life as a fundamental value (see the Court's criticism of the “shoot to kill” instructions given to soldiers in McCann and Others, cited above, pp. 61 - 62, §§ 211- 14).", "(b) Application of the above principles in the present case", "98. Mr Angelov and Mr Petkov were shot and killed by a military police officer who was trying to arrest them following their escape from detention. It follows that the case falls to be examined under Article 2 § 2 (b) of the Convention.", "(i) The relevant legal framework", "99. The Court notes as a matter of grave concern that the relevant regulations on the use of firearms by the military police effectively permitted lethal force to be used when arresting a member of the armed forces for even the most minor offence. Not only were the regulations not published, they contained no clear safeguards to prevent the arbitrary deprivation of life. Under the regulations, it was lawful to shoot any fugitive who did not surrender immediately in response to an oral warning and the firing of a warning shot in the air (see paragraph 60 above). The laxity of the regulations on the use of firearms and the manner in which they tolerated the use of lethal force were clearly exposed by the events that led to the fatal shooting of Mr Angelov and Mr Petkov and by the investigating authorities'response to those events. The Court will revert to these matters later.", "100. Such a legal framework is fundamentally deficient and falls well short of the level of protection “by law” of the right to life that is required by the Convention in present-day democratic societies in Europe (see paragraphs 94 - 97 above setting out the principles on which the relevant legal framework must be based).", "101. It is true that the Supreme Court had stated that a proportionality requirement was inherent in the domestic criminal law. However, the Supreme Court's interpretation was not applied in the present case (see paragraphs 50-54 and 64 above).", "102. The Court thus finds that there was a general failure by the respondent State to comply with its obligation under Article 2 of the Convention to secure the right to life by putting in place an appropriate legal and administrative framework on the use of force and firearms by military police.", "(ii) Planning and control of the operation", "103. The Chamber gave separate consideration to the manner in which the arrest operation had been planned. The Grand Chamber endorses the Chamber's finding that the authorities failed to comply with their obligation to minimise the risk of loss of life since the arresting officers were instructed to use all available means to arrest Mr Angelov and Mr Petkov, in disregard of the fact that the fugitives were unarmed and posed no danger to life or limb. As the Chamber rightly stated ( see paragraph 110 of the Chamber judgment ) :", "“ ... [A] crucial element in the planning of an arrest operation ... must be the analysis of all the available information about the surrounding circumstances, including, as an absolute minimum, the nature of the offence committed by the person to be arrested and the degree of danger – if any – posed by that person. The question whether and in what circumstances recourse to firearms should be envisaged if the person to be arrested tries to escape must be decided on the basis of clear legal rules, adequate training and in the light of that information.”", "104. The Grand Chamber for its part would again highlight the absence of a clear legal and regulatory framework defining the circumstances in which military police officers may have recourse to potentially deadly force (see paragraphs 99-102 above). It agrees with the Chamber's finding ( see paragraph 112 of the Chamber judgment ) that the relevant regulations", "“ ... did not make use of firearms dependent on an assessment of the surrounding circumstances, and, most importantly, did not require an evaluation of the nature of the offence committed by the fugitive and of the threat he or she posed”.", "105. In the event, the regulations in place permitted a team of heavily armed officers to be dispatched to arrest the two men in the absence of any prior discussion of the threat, if any, they posed or of clear warnings on the need to minimise any risk to life. In short, the manner in which the operation was planned and controlled betrayed a deplorable disregard for the pre-eminence of the right to life.", "(iii) The actions of the arresting officers", "106. It was undisputed that Mr Angelov and Mr Petkov had served in the Construction Force, a special army institution in which conscripts discharged their duties as construction workers on non-military sites. They had been sentenced to short terms of imprisonment for non-violent offences. They had escaped without using violence, simply by leaving their place of work, which was outside the detention facility. While they had previous convictions for theft and had repeatedly been absent without leave, they had no record of violence (see paragraphs 13-15 above). Neither man was armed or represented a danger to the arresting officers or third parties, a fact of which the arresting officers must have been aware on the basis of the information available to them. In any event, upon encountering the men in the village of Lesura, the officers, or at least Major G., observed that they were unarmed and not showing any signs of threatening behaviour (see paragraphs 15-26 above).", "107. Having regard to the above, the Court considers that in the circumstances that obtained in the present case any resort to potentially lethal force was prohibited by Article 2 of the Convention, regardless of any risk that Mr Angelov and Mr Petkov might escape. As stated above, recourse to potentially deadly force cannot be considered as “absolutely necessary” where it is known that the person to be arrested poses no threat to life or limb and is not suspected of having committed a violent offence.", "108. In addition, the conduct of Major G., the military police officer who shot the victims, calls for serious criticism in that he used grossly excessive force.", "(i) It appears that there were other means available to effect the arrest: the officers had a jeep, the operation took place in a small village in the middle of the day and the behaviour of Mr Angelov and Mr Petkov was apparently predictable, since, following a previous escape, Mr Angelov had been found at the same address (see paragraphs 1 7, 1 8, 23 and 24 above).", "(ii) Major G. chose to use his automatic rifle and switched it to automatic mode although he also carried a handgun (see paragraph 26 above). He could not possibly have aimed with any reasonable degree of accuracy using automatic fire.", "(iii) Mr Petkov was wounded in the chest, a fact for which no plausible explanation was provided (see paragraphs 41 and 50-54 above). In the absence of such an explanation, the possibility that Mr Petkov had turned to surrender at the last minute but had nevertheless been shot cannot be excluded.", "(iv ) The Court's conclusion", "109. The Court finds that the respondent State failed to comply with its obligations under Article 2 of the Convention in that the relevant legal framework on the use of force was fundamentally flawed and Mr Angelov and Mr Petkov were killed in circumstances in which the use of firearms to effect their arrest was incompatible with Article 2 of the Convention. Furthermore, grossly excessive force was used. There has therefore been a violation of Article 2 of the Convention as regards the deaths of Mr Angelov and Mr Petkov.", "2. Whether the investigation into the deaths of Mr Angelov and Mr Petkov was effective, as required by Article 2 of the Convention", "(a) General principles", "110. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999 ‑ IV). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR 2002 ‑ IV).", "111. The authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to request particular lines of inquiry or investigative procedures (see, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000 ‑ VII).", "112. For an investigation into alleged unlawful killing by State agents to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, in law and in practice (see Güleç v. Turkey, judgment of 27 July 1998, Reports 1998 ‑ IV, p. 1733, §§ 81-82; Oğur v. Turkey [GC], no. 21 5 94/93, §§ 91- 92, ECHR 1999 ‑ III; and Ergi v. Turkey, judgment of 28 July 1998, Reports 1998 ‑ IV, pp. 1 778- 79, §§ 83 ‑ 84).", "113. The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible (see Oğur, cited above, § 88 ). The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye - witness testimony and forensic evidence. The investigation's conclusions must be based on thorough, objective and impartial analysis of all relevant elements and must apply a standard comparable to the “no more than absolutely necessary” standard required by Article 2 § 2 of the Convention. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness (see Kelly and Others v. the United Kingdom, no. 30054/96, §§ 96-97, 4 May 2001, and Anguelova, cited above, § § 139 and 144 ).", "(b) Application of these principles in the present case", "114. The Grand Chamber sees no reason to depart from the Chamber's findings. It observes, as the Chamber did, that the investigation into the deaths of Mr Angelov and Mr Petkov assessed the lawfulness of the officers'conduct in the light of the relevant regulations. The fact that the investigation validated the use of force in the circumstances only serves to confirm the fundamentally defective nature of those regulations and their disregard of the right to life. By basing themselves on the strict letter of the regulations, the investigating authorities did not examine relevant matters such as the fact that the victims were known to be unarmed and represented no danger to anyone, still less whether it was appropriate to dispatch a team of heavily armed officers in pursuit of two men whose only offence was to be absent without leave. In short, there was no strict scrutiny of all the material circumstances (see paragraphs 50-54 above).", "115. Quite apart from the excessively narrow legal framework in which the investigation was conducted, it is to be further observed that a number of indispensable and obvious investigative steps were not taken. In particular, the sketch map relied on by the authorities did not indicate the characteristics of the terrain. Relevant measurements were missed. No reconstruction of the events was staged. Without the information that could thereby have been obtained, it was not possible to check the arresting officers'accounts of the events (see paragraphs 3 6 ‑ 5 4 above).", "116. Moreover, the investigator and the prosecutors ignored highly relevant facts, such as that Mr Petkov had been shot in the chest, that the spent cartridges were found in Mr M.M.'s yard, only a few metres from the spot where Mr Angelov and Mr Petkov fell, and that Major G. used grossly excessive force by firing in automatic mode. The authorities ignored those significant facts and, without seeking any proper explanation, merely accepted Major G.'s statements and terminated the investigation. The investigator and the prosecutors thus effectively shielded Major G. from prosecution.", "117. The Grand Chamber endorses the Chamber's view that such conduct on the part of the authorities – which has already been remarked on by the Court in previous cases against Bulgaria (see Velikova v. Bulgaria, no. 41488/98, ECHR 2000 ‑ VI, and Anguelova, cited above) – is a matter of grave concern, as it casts serious doubts on the objectivity and impartiality of the investigators and prosecutors involved.", "118. The Court reiterates in this connection that a prompt and effective response by the authorities in investigating the use of lethal force is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr, cited above, §§ 111- 15 ).", "119. It follows that in the present case there has been a violation of the respondent State's obligation under Article 2 § 1 of the Convention to investigate the deprivation of life effectively.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "120. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "121. In view of its findings under Article 2 of the Convention, the Chamber held that no separate issue arose under Article 13.", "122. Before the Grand Chamber, the Government did not comment on the issues under Article 13 of the Convention. The applicants stated that they accepted the Chamber's finding.", "123. Having regard to the grounds on which it has found a violation of the procedural aspect of Article 2, the Grand Chamber, like the Chamber, considers that no separate issue arises under Article 13 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2", "124. The applicants alleged a violation of Article 14 of the Convention in that prejudice and hostile attitudes towards persons of Roma origin had played a role in the events leading up to the deaths of Mr Angelov and Mr Petkov. They also argued that the authorities had failed in their duty to investigate possible racist motives in their killing. The Government disputed the applicants'allegations.", "125. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The Chamber judgment", "126. The Chamber noted that, in cases of deprivation of life, Articles 2 and 14 of the Convention combined imposed a duty on State authorities to conduct an effective investigation irrespective of the victim's racial or ethnic origin. It also considered that the authorities had the additional duty to take all reasonable steps to unmask any racist motive in an incident involving the use of force by law enforcement agents.", "127. In the present case, despite Mr M.M.'s statement regarding racist verbal abuse and other evidence which should have alerted the authorities to the need to investigate possible racist motives, no such investigation had been undertaken. The authorities had on that account failed in their duty under Article 14 of the Convention taken in conjunction with Article 2.", "128. Considering that the particular evidentiary difficulties involved in proving discrimination called for a specific approach to the issue of proof, the Chamber held that in cases where the authorities had not pursued lines of inquiry that had clearly been warranted in their investigation into acts of violence by State agents and had disregarded evidence of possible discrimination, the Court might, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government.", "129. On the facts of the case, the Chamber considered that the conduct of the investigating authorities – which had omitted to refer to a number of disquieting facts such as the excessive nature of the force used by Major G. and the evidence that he had uttered a racist slur – warranted a shift of the burden of proof. It thus fell to the Government to satisfy the Court, on the basis of additional evidence or a convincing explanation of the facts, that the events complained of had not been shaped by discrimination on the part of State agents.", "130. As the Government had not offered a convincing explanation, and noting that there had been previous cases in which the Court had found that law enforcement officers in Bulgaria had subjected Roma to violence resulting in death, the Chamber concluded that there had also been a violation of the substantive aspect of Article 14 of the Convention taken in conjunction with Article 2.", "B. The parties'submissions", "1. The Government", "131. The Government took issue with the Chamber's finding of a violation of Article 14, stating that the Chamber had relied solely on general material regarding events outside the scope of the case and on two fortuitous facts – the testimony of Mr M.M. concerning an offensive remark that Major G. had allegedly made against him, not against the victims, and the fact that the events had taken place in a Roma neighbourhood. In the Government's view, these considerations could not justify, by any acceptable standard of proof, a conclusion that the use of firearms had been motivated by racial prejudice.", "132. The Government emphasised that the Court had always required “proof beyond reasonable doubt”. The burden of proof could shift where the events in issue were wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of death occurring during detention. However, no such circumstances had obtained in the present case.", "133. As there had been no racial element in the incident in issue, any further investigation by the domestic authorities would have been to no avail. The Government accepted that racially motivated violence had to be punished more severely than violent acts without a racial overtone. However, States could not be required to investigate for possible racist attitudes in the absence of sufficient evidence supporting the allegations of racism. The Government considered that the Chamber's approach would lead to the responsibility of Contracting States being engaged in each and every case where an allegation of discrimination, however unfounded, had been made.", "134. Moreover, the Chamber's approach lacked clarity and foreseeability. In particular, it was contradictory to state – as the Chamber did – that the Court could not examine intent and state of mind in the context of Article 2 of the Convention and then to reach the conclusion that there had been a substantive violation of Article 14 of the Convention taken in conjunction with Article 2 because the death of Mr Angelov and Mr Petkov had been the result of a racially motivated act.", "135. The Government, in both their written and oral submissions, gave a detailed overview of legislation, social programmes and other measures that had been adopted in recent years in Bulgaria with the aim of combating discrimination and intolerance and promoting the integration of Roma in society.", "2. The applicants", "136. In their written submissions, the applicants argued that the Convention had so far failed to provide effective protection against racial discrimination and invited the Grand Chamber to adopt an innovative interpretation of Article 14. The applicants welcomed the Chamber's views that Contracting States were under a duty to investigate possible racist motives for an act of violence and that the burden of proof might shift to the respondent Government. In their written submissions they considered, however, that the standard of proof in discrimination cases should not be “proof beyond reasonable doubt” and that in cases such as the instant case the burden of proof should always shift to the Government once a prima facie case of discrimination had been established. In their oral submissions at the hearing, the applicants'representatives invited the Court to follow the Chamber's approach.", "137. As to the facts of the case, the applicants stated that there had been a substantive violation of Article 14 as they had established a prima facie case of discrimination and the Government had failed to present evidence to the contrary. In particular, the ethnicity of Mr Angelov and Mr Petkov had been known to the officers who had sought to arrest them. Major G. had addressed racially offensive remarks to a bystander on the basis of his Roma origin. Also, strong inferences were to be drawn from the fact that Major G. had used grossly disproportionate firepower in a populated area, the Roma neighbourhood of the village. Those facts should be assessed against the background of persistent discrimination against Roma on the part of law enforcement agents in Bulgaria. Furthermore, the authorities should have investigated whether the deaths of Mr Angelov and Mr Petkov had been motivated by racial prejudice but had failed to do so.", "3. The interveners", "(a) The European Roma Rights Centre", "138. The Centre pointed out that over the last few years various international bodies and non-governmental organisations had reported numerous incidents of ill-treatment and killing of Roma by law enforcement agents and private individuals of Bulgarian ethnic origin. It was widely acknowledged that racially motivated violence against Roma was a serious problem in Bulgaria. The Roma community was furthermore largely excluded from social life as it laboured under high levels of poverty, illiteracy and unemployment.", "139. Despite high levels of racially motivated violence and repeated calls on the part of international bodies, such as the United Nations Committee Against Torture, for the establishment of “an effective, reliable and independent complaint system” and for adequate investigation of police abuse, the authorities had failed to act. Bulgarian criminal legislation did not treat racist animus as an aggravating circumstance in cases of violent offences. In 1999 the Bulgarian authorities had acknowledged the need for an amendment but had never taken any action. Also, Article 162 of the Criminal Code, which made racist attacks punishable, provided for lighter sentences than the provisions dealing with common bodily harm. As a result, Article 162 was never applied, charges were brought – if at all – under the general provisions on bodily harm or murder and the racist nature of the attacks remained hidden. There was a climate of impunity, as noted by the Court in Velikova and Anguelova.", "(b) Interights", "140. Interights criticised the Court's “beyond reasonable doubt” standard as erecting insurmountable obstacles to establishing discrimination. In Interights's submission, those national jurisdictions in which judicial protection against discrimination was strongest tended to be common - law jurisdictions, which applied a “ balance of probabilities ” standard of proof for discrimination cases. While in civil - law jurisdictions judges had a fact-finding role and were therefore, theoretically at least, able to satisfy themselves to a higher standard of proof, a review of judicial responses to discrimination suggested that the common - law approach lent itself to stronger judicial protection against discrimination. In Interights's submission, the Court had in practice adopted an intermediate standard, as it did not require the same high level of proof as in criminal trials, but its approach lacked clarity and foreseeability.", "141. Interights further stated that international practice supported the view that in discrimination cases the burden of proof should shift to the respondent upon the claimant establishing a prima facie case. That was the approach adopted by several European Union directives, by the Court of Justice of the European Communities, the United Nations Human Rights Committee and the national courts in a number of European countries and also in the United States, Canada and other countries.", "142. Interights also cited examples of the types of evidence that national jurisdictions had accepted as capable of establishing a prima facie case of discrimination: evidence of a “general picture” of disadvantage, “common knowledge” of discrimination, facts from “general life”, facts that were generally known, background facts and circumstantial evidence. Relying on inferences was also a common approach.", "(c) Open Society Justice Initiative (OSJI)", "143. OSJI commented on the obligation of States, in international and comparative law, to investigate racial discrimination and violence. In their view, the widely accepted principle that no effective protection of substantive rights was possible without adequate procedural guarantees was also applicable to discrimination cases. Therefore, a procedural duty was inherent in Article 14 of the Convention. Furthermore, in accordance with the prevailing European and international practice, racial motivation was an aggravating circumstance in criminal law and, as a result, subject to investigation. States had a duty, therefore, to investigate acts of racial violence. That was an ex officio obligation and arose whenever there was a reasonable suspicion that a racially motivated act had been committed.", "C. The Court's assessment", "1. Whether the respondent State is liable for deprivation of life on the basis of the victims'race or ethnic origin", "144. The Court has established above that agents of the respondent State unlawfully killed Mr Angelov and Mr Petkov in violation of Article 2 of the Convention. The applicants have further alleged that there has been a separate violation of Article 14 in that racial prejudice played a role in their deaths.", "145. Discrimination is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV ). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment. The Court will revert to that issue below.", "146. Faced with the applicants'complaint of a violation of Article 14, as formulated, the Court's task is to establish whether or not racism was a causal factor in the shooting that led to the deaths of Mr Angelov and Mr Petkov so as to give rise to a breach of Article 14 of the Convention taken in conjunction with Article 2.", "147. It notes in this connection that, in assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States'responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties'submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among others, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 1 61; Ribitsch v. Austria, judgment of 4 December 1 995, Series A no. 336, p. 24, § 32; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996 ‑ IV, p. 1211, § 68; Tanli v. Turkey, no. 26129/95, § 111, ECHR 2001- III; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 26, ECHR 2004-VII ).", "148. The applicants have referred to several separate facts and they maintain that sufficient inferences of a racist act can be drawn from them.", "149. Firstly, the applicants considered to be revealing the fact that Major G. had discharged bursts of automatic fire in a populated area, in disregard of the public's safety. Considering that there was no rational explanation for such behaviour, the applicants were of the view that racist hatred on the part of Major G. was the only plausible explanation and that he would not have acted in that manner in a non-Roma neighbourhood.", "150. The Court notes, however, that the use of firearms in the circumstances in issue was regrettably not prohibited under the relevant domestic regulations, a flagrant deficiency which it has earlier condemned (see paragraph 99 above). The military police officers carried their automatic rifles “in accordance with the rules” and were instructed to use all means necessary to effect the arrest (see paragraphs 19 and 60 above). The possibility that Major G. was simply adhering strictly to the regulations and would have acted as he did in any similar context, regardless of the ethnicity of the fugitives, cannot therefore be excluded. While the relevant regulations were fundamentally flawed and fell well short of the Convention requirements on the protection of the right to life, there is nothing to suggest that Major G. would not have used his weapon in a non-Roma neighbourhood.", "151. It is true, as the Court has found above, that Major G.'s conduct during the arrest operation calls for serious criticism in that he used grossly excessive force (see paragraph 108 above). Nonetheless, it cannot be excluded that his reaction was shaped by the inadequacy of the legal framework governing the use of firearms and by the fact that he was trained to operate within that framework (see paragraphs 60 and 99-105 above).", "152. The applicants also stated that the military police officers'attitude had been strongly influenced by their knowledge of the victims'Roma origin. However, it is not possible to speculate on whether or not Mr Angelov's and Mr Petkov's Roma origin had any bearing on the officers'perception of them. Furthermore, there is evidence that some of the officers knew one or both of the victims personally (see paragraph 18 above).", "153. The applicants referred to the statement made by Mr M. M., a neighbour of one of the victims, who reported that Major G. had shouted at him “ You damn Gypsies” immediately after the shooting. While such evidence of a racial slur being uttered in connection with a violent act should have led the authorities in this case to verify Mr M.M.'s statement, that statement is in itself an insufficient basis for concluding that the respondent State is liable for a racist killing.", "154. Lastly, the applicants relied on information concerning numerous incidents involving the use of force against Roma by Bulgarian law enforcement officers that had not resulted in the conviction of those responsible.", "155. It is true that a number of organisations, including intergovernmental bodies, have expressed concern regarding the occurrence of such incidents (see paragraphs 55-59 above). However, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the killing of Mr Angelov and Mr Petkov was motivated by racism.", "156. In its judgment, the Chamber decided to shift the burden of proof to the Government on account of the authorities'failure to carry out an effective investigation into the alleged racist motive for the killing. The inability of the Government to satisfy the Chamber that the events complained of were not shaped by racism resulted in its finding a substantive violation of Article 14 of the Convention taken in conjunction with Article 2.", "157. The Grand Chamber reiterates that in certain circumstances, where the events lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of the death of a person within their control in custody, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation of, in particular, the causes of the detained person's death (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000- VII). The Grand Chamber cannot exclude the possibility that in certain cases of alleged discrimination it may require the respondent Government to disprove an arguable allegation of discrimination and – if they fail to do so – find a violation of Article 14 of the Convention on that basis. However, where it is alleged – as here – that a violent act was motivated by racial prejudice, such an approach would amount to requiring the respondent Government to prove the absence of a particular subjective attitude on the part of the person concerned. While in the legal systems of many countries proof of the discriminatory effect of a policy or decision will dispense with the need to prove intent in respect of alleged discrimination in employment or the provision of services, that approach is difficult to transpose to a case where it is alleged that an act of violence was racially motivated. The Grand Chamber, departing from the Chamber's approach, does not consider that the alleged failure of the authorities to carry out an effective investigation into the supposedly racist motive for the killing should shift the burden of proof to the Government with regard to the alleged violation of Article 14 of the Convention taken in conjunction with the substantive aspect of Article 2. The question of the authorities'compliance with their procedural obligation is a separate issue, to which the Court will revert below.", "158. In sum, having assessed all the relevant elements, the Court does not consider that it has been established that racist attitudes played a role in Mr Angelov's and Mr Petkov's deaths.", "159. It thus finds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 2 in its substantive aspect.", "2. Procedural aspect: whether the respondent State complied with its obligation to investigate possible racist motives", "(a) General principles", "160. The Grand Chamber endorses the Chamber's analysis in the present case of the Contracting States'procedural obligation to investigate possible racist motives for acts of violence. The Chamber stated, in particular ( see paragraphs 156 - 59 of the Chamber judgment ):", "“ ... States have a general obligation under Article 2 of the Convention to conduct an effective investigation in cases of deprivation of life.", "That obligation must be discharged without discrimination, as required by Article 14 of the Convention ... [W] here there is suspicion that racial attitudes induced a violent act it is particularly important that the official investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society's condemnation of racism and ethnic hatred and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence. Compliance with the State's positive obligations under Article 2 of the Convention requires that the domestic legal system must demonstrate its capacity to enforce criminal law against those who unlawfully took the life of another, irrespective of the victim's racial or ethnic origin (see Menson and Others v. the United Kingdom (dec.), no. 47916/99, ECHR 2003- V).", "... [W] hen investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). In order to maintain public confidence in their law enforcement machinery, Contracting States must ensure that in the investigation of incidents involving the use of force a distinction is made both in their legal systems and in practice between cases of excessive use of force and of racist killing.", "Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute (see, mutatis mutandis, Shanaghan v. the United Kingdom, no. 37715/97, § 90, ECHR 2001 ‑ III, setting out the same standard with regard to the general obligation to investigate). The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence .”", "161. The Grand Chamber would add that the authorities'duty to investigate the existence of a possible link between racist attitudes and an act of violence is an aspect of their procedural obligations arising under Article 2 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 of the Convention taken in conjunction with Article 2 to secure the enjoyment of the right to life without discrimination. Owing to the interplay of the two provisions, issues such as those in the present case may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made.", "(b) Application of the above principles in the present case", "162. The Court has already found that the Bulgarian authorities violated Article 2 of the Convention in that they failed to conduct a meaningful investigation into the deaths of Mr Angelov and Mr Petkov (see paragraphs 114- 19 above). It considers that in the present case it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and the killing of the two men.", "163. The authorities investigating the deaths of Mr Angelov and Mr Petkov had before them the statement of Mr M.M., a neighbour of the victims, who stated that Major G. had shouted “You damn Gypsies” while pointing a gun at him immediately after the shooting (see paragraph 35 above). That statement, seen against the background of the many published accounts of the existence in Bulgaria of prejudice and hostility against Roma, called for verification.", "164. The Grand Chamber considers – as the Chamber did – that any evidence of racist verbal abuse being uttered by law enforcement agents in connection with an operation involving the use of force against persons from an ethnic or other minority is highly relevant to the question whether or not unlawful, hatred-induced violence has taken place. Where such evidence comes to light in the investigation, it must be verified and – if confirmed – a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives.", "165. Furthermore, the fact that Major G. used grossly excessive force against two unarmed and non-violent men also called for a careful investigation.", "166. In sum, the investigator and the prosecutors involved in the present case had before them plausible information which was sufficient to alert them to the need to carry out an initial verification and, depending on the outcome, an investigation into possible racist overtones in the events that led to the death of the two men.", "167. However, the authorities did nothing to verify Mr M.M.'s statement. They omitted to question witnesses about it. Major G. was not asked to explain why he had considered it necessary to use such a degree of force. No attempt was made to verify Major G.'s record and to ascertain, for example, whether he had previously been involved in similar incidents or whether he had ever been accused in the past of displaying anti-Roma sentiment. Those failings were compounded by the behaviour of the investigator and the prosecutors, who, as the Court has found above, disregarded relevant facts and terminated the investigation, thereby shielding Major G. from prosecution (see paragraphs 36-54 and 115- 17 above).", "168. The Court thus finds that the authorities failed in their duty under Article 14 of the Convention taken in conjunction with Article 2 to take all possible steps to investigate whether or not discrimination may have played a role in the events. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 in its procedural aspect.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "169. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "170. Before the Grand Chamber, the applicants made the same claims for compensation for pecuniary and non-pecuniary damage as they had in the Chamber proceedings. The Government did not comment.", "171. The relevant part of the Chamber judgment reads (see paragraphs 177- 84) :", "“Ms Nachova, Mr Angelov's daughter, and Ms Hristova, his partner and the mother of Ms Nachova, claimed jointly 25,000 euros (EUR ) in respect of the death of Mr Angelov and the ensuing violations of the Convention. That amount included EUR 20,000 for non-pecuniary damage and EUR 5,000 for pecuniary loss.", "Ms Rangelova and Mr Rangelov claimed jointly the same amounts in respect of the death of their son, Mr Kiril Petkov, and all violations of the Convention in the case.", "In respect of non-pecuniary damage, the Court awards the amounts claimed in full.", "In respect of pecuniary damage, the applicants claimed lost income resulting from the deaths. The applicants were unable to provide documentary proof but stated that each of the victims had supported his family financially and would have continued to do so had he been alive. They invited the Court to award EUR 5,000 in respect of each of the deceased.", "The Government stated that the claims were excessive in view of the standard of living in Bulgaria.", "The Court observes that the Government have not disputed the applicants'statement that they had suffered pecuniary loss in that Mr Angelov and Mr Petkov would have supported them financially if they were still alive. The Court sees no reason to reach a different conclusion.", "As to the amount, in some cases, such as the present one, a precise calculation of the sums necessary to make complete reparation ( restitutio in integrum ) in respect of the pecuniary losses suffered by applicants may be prevented by the inherently uncertain character of the damage flowing from the violation. An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses. The question to be decided in such cases is the level of just satisfaction, which is a matter to be determined by the Court at its discretion, having regard to what is equitable (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 120, ECHR 2001- V).", "In the present case, having regard to the submissions of the parties and all relevant factors, including the age of the victims and the applicants and how closely they were related to each other, the Court finds it appropriate to award EUR 5,000 jointly to Mrs Nachova and Ms Hristova in respect of lost income resulting from the death of Mr Angelov, and EUR 2,000 jointly to Ms Rangelova and Mr Rangelov for lost income as a result of the death of Mr Petkov.”", "172. The Grand Chamber endorses the Chamber's analysis. It considers that the applicants'claims concern pecuniary and non-pecuniary damage resulting from the violations of Articles 2 and 14 of the Convention found in the present case and that there is no room for reducing the awards made on account of the fact that the Grand Chamber, unlike the Chamber, has only found a violation of Article 14 of the Convention taken in conjunction with the procedural aspect of Article 2. Accordingly, it awards jointly to Ms Nachova and Ms Hristova EUR 25,000 for pecuniary and non-pecuniary damage and jointly to Ms Rangelova and Mr Rangelov EUR 22,000 for pecuniary and non-pecuniary damage.", "B. Costs and expenses", "173. The Chamber accepted in full the applicants'claim under this head and awarded them jointly EUR 3,740 for costs and expenses.", "174. Before the Grand Chamber, the applicants repeated their initial claims and sought additional amounts in respect of costs and expenses incurred in the Grand Chamber proceedings. In particular, they claimed 7,931 pounds sterling (approximately EUR 11,630) in respect of legal fees charged by Lord Lester QC for his work on the case as well as expenses related to his participation at the oral hearing, and EUR 1,920 for forty-eight hours of legal work by Mr Grozev during the written procedure before the Grand Chamber. They submitted copies of agreements on legal fees and time sheets. The applicants stated that they were not claiming legal fees or expenses in respect of Mr Grozev's appearance at the hearing, since that had been covered by the legal aid paid to him (EUR 1,906.50) by the Council of Europe. In sum, the applicants claimed EUR 5,660 in respect of Mr Grozev's work on the case and the equivalent of approximately EUR 11,630 in respect of Lord Lester's participation at the hearing before the Grand Chamber. The applicants requested that any award in respect of costs and expenses be paid directly to their lawyers. The Government did not comment.", "175. The Court considers that the costs and expenses claimed were actually and necessarily incurred and relate to the violations found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002 ). As to the amounts, it considers that the claims relating to the oral hearing are excessive. Taking into account all relevant factors, it awards jointly to all applicants EUR 11 ,000 for costs and expenses (EUR 5,500 in respect of Mr Grozev's work and EUR 5 ,500 in respect of Lord Lester's work ), to be paid into their lawyers'respective bank accounts.", "C. Default interest", "176. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "11. The applicants were born in 1981, 1977, 1999, 2001, 2004, 2007 and 2011 respectively. The eldest daughter of the first and second applicants, S.M., died after the application had been lodged, on 18 December 2011.", "12. The applicants have spent the greater part of their lives in Serbia. They left Serbia in 2010 for Kosovo and in February 2010 they went to France, where they lodged applications for asylum. The second applicant ’ s application was registered by the French Office for the Protection of Refugees and Stateless Persons (“the OFPRA”) on 10 May 2010 and the first applicant ’ s on 18 May 2010. On 4 June 2010 their applications were rejected on the grounds that they had not responded to the summons to appear before the OFPRA on 31 May 2010 and that their written statements, which were too vague, did not enable the OFPRA to grant their application.", "13. According to the information provided by the applicants, they stayed in France for about two months, apparently in Mulhouse. They alleged that they had only been provided with night-time accommodation and had been obliged to leave the hostel in the mornings, taking their physically and mentally disabled daughter, S.M., in a pushchair. They submitted that they had left France before the OFPRA issued its decision and returned to Kosovo, and subsequently to Serbia, in May 2010.", "14. In March 2011 they went to Belgium, where they lodged an asylum application on 1 April 2011. On the same day the Federal Agency for the reception of asylum seekers (Fedasil) assigned them a place in a reception facility, the Morlanwez asylum-seekers ’ reception centre.", "15. On 4 April 2011 the applicants had an interview with the “Dublin” department of the Aliens Office during which they gave an account of their journey and their reasons for seeking asylum.", "16. On 12 April 2011 the Belgian authorities sent France a request to take the applicants back under Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin II Regulation”).", "17. Initially, France refused to take charge of the applicants on the grounds that they had probably left the territory of the Member States for more than three months, which was a ground for refusing to take them back under Article 16(3) of the Dublin II Regulation. After the Belgian authorities had reiterated their request, on 6 May 2011 the French authorities agreed to take the family back. They indicated that the transfer should be effected under escort to the border control post of Rekkem and asked to be given three days ’ notice of the transfer.", "18. On 17 May 2011 the Aliens Office issued a decision refusing the applicants leave to remain and ordering them to leave the country for France within seven days (decision known as an “annex 26 quater ”, which is the name of the corresponding form) on the grounds that Belgium was not responsible for examining the asylum application under Article 16(1 )( e) of the Dublin II Regulation and that France had agreed to take the applicants back. The decision indicated that as the applicants had not expressed fears regarding the French authorities or adduced evidence of any traumatic experience in France and France was a country which respected human rights, was a signatory to many conventions and had independent courts to which the applicants could apply, Belgium did not have to take responsibility for the asylum application under Article 3(2) of the Dublin II Regulation. The applicants were issued with laissez-passer to enter France.", "19. On 26 May 2011 execution of the order to leave the country was extended until 25 September 2011 on grounds of the second applicant ’ s pregnancy.", "20. In May 2011 the applicants contacted a lawyer with a view to challenging the Dublin transfer decision. On 16 June 2011 they lodged an application with the Aliens Appeals Board through their lawyer seeking judicial review of the decision and an ordinary request for an order staying execution. They relied on a number of grounds, in particular the failure to mention any statutory basis for their transfer to France and their fears regarding the poor reception conditions they had experienced during their first stay in France and a possible transfer to Serbia, and adduced evidence that they had left the territory of the European Union for more than three months.", "21. After the second applicant had given birth at the end of July, on 5 August 2011 the family was assigned a place in a new reception centre, in Saint-Trond, 66 km from Brussels.", "22. The applicants appeared at the hearing on 26 August 2011 before the Aliens Appeals Board to examine their request for judicial review of the order to leave the country.", "23. On 22 September 2011, relying on the state of health of their daughter S.M., they sought leave to remain on medical grounds under section 9 ter of the Aliens Act. Their application was declared inadmissible by the Aliens Office on 30 September 2011 on the grounds that the medical certificate produced in support of their application certified the existence of a medical condition and the treatment considered necessary but, contrary to the statutory requirements, did not specify the degree of seriousness of the young S.M ’ s illness. The applicants did not learn of that decision until much later, during the proceedings before the Court.", "24. On the expiry of the time-limit granted in the order to leave the country the applicants were excluded from the Saint-Trond reception facility, which they left on 27 September 2011. They travelled to Brussels by train and went to Place Gaucheret, where other Roma families were staying. They spent a number of days there.", "25. On 29 September 2011 the applicants ’ lawyer applied to the French ‑ speaking community ’ s General Delegate to the Rights of the Child seeking his assistance in finding accommodation for the family. On 5 October, after the General Delegate had contacted various institutions, the applicants were given a place in the Woluwe-Saint-Pierre transit centre in Brussels.", "26. On 7 October 2011 Fedasil assigned them a reception centre in Bovigny 160 km from Brussels. The applicants were provided with train and bus tickets and directions to the reception centre.", "27. The applicants submitted before the Court that they had gone to the Bovigny centre but had been refused entry on the grounds that their documents (their “annexes”) were not valid. The Government stated, for their part, that the applicants had been expected at the Bovigny centre but had failed to turn up. In the proceedings before the Grand Chamber the Government produced exchanges of correspondence between Fedasil and the employees at the centre indicating that a room with a baby ’ s cot had been prepared for the applicants, that a shuttle service from the station to the centre had been organised and that their place had been kept for them for several days before being reassigned.", "28. The family then went to the Gare du Nord in Brussels where they stayed for over two weeks before accepting a voluntary return programme and returning to Serbia on 25 October 2011.", "29. The first and second applicants ’ eldest daughter died there of a pulmonary infection on 18 December 2011.", "30. In a judgment of 29 November 2011 the Aliens Appeals Board set aside the order to leave the country (see paragraph 18 above) on the grounds that the decision had not properly established the legal basis on which France had been designated as the responsible State. With regard to the risk of treatment contrary to Article 3 referred to by the applicants, the Aliens Appeals Board considered that such a risk had not been made out. It observed that the applicants had not drawn the administrative authority ’ s attention to any particular difficulties regarding the reception arrangements organised by the French authorities, particularly concerning access to medical care for their children, and that they had not submitted any evidence corroborating their allegations regarding the conditions of their accommodation. With regard to the general situation concerning reception arrangements in France, the Aliens Appeals Board observed that the applicants had not referred to circumstances of which the respondent had or ought to have had knowledge, the evidence submitted before it having been considered vague and incomplete.", "31. The Belgian State lodged an appeal on points of law with the Conseil d ’ État. The appeal was initially declared admissible, but ultimately declared inadmissible on 28 February 2013 on grounds of the State ’ s lack of interest in appealing given that the applicants had left Belgian territory more than three months ago and Belgium was no longer responsible for determining the State responsible under the Dublin II Regulation." ]

[ "THE LAW", "32. In her observations before the Grand Chamber the applicants ’ representative informed the Court that she had maintained contact with the applicants almost until the end of the proceedings before the Chamber but had not had any further contact with them since then. At the hearing on 25 May 2016 she confirmed that, despite several attempts on her part, she had been unable to renew contact with the applicants and that she did not know their current address. She submitted that the Court should nonetheless continue its examination of the application and argued that she had been authorised to represent the applicants throughout the entire proceedings. The representative pointed out that it was always difficult to maintain contact with persons in a precarious situation such as that of the applicants and that the referral of the case to the Grand Chamber at the Government ’ s initiative could not justifiably have the effect of depriving the applicants of the benefit of the judgment of the Chamber, which had ruled in their favour.", "33. The Government did not expressly comment on the question of continuing the examination of the case by the Court. They observed, however, that on account of the loss of contact with their lawyer the applicants had not been in a position to submit observations on the new evidence produced before the Grand Chamber which showed, in the Government ’ s view, that the applicants had not gone to the Bovigny reception centre (see paragraph 27 above).", "34. Having regard to these circumstances, the Court considers it necessary first to examine the need to continue the examination of the application according to the criteria set forth in Article 37 of the Convention. This provision reads as follows:", "“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that", "(a) the applicant does not intend to pursue his application; or", "(b) the matter has been resolved; or", "(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.", "However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.", "2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”", "35. The Court reiterates that an applicant ’ s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court) but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant ’ s particular situation and to confirm the applicant ’ s continuing interest in pursuing the examination of his or her application (see Sharifi and Others v. Italy and Greece, no. 16643/09, § 124, 21 October 2014, and, mutatis mutandis, Ali v. Switzerland, 5 August 1998, § 32, Reports of Judgments and Decisions 1998 ‑ V).", "36. In the present case the Court observes that the applicants did not maintain contact with their lawyer and failed to keep her informed of their place of residence or to provide her with another means of contacting them. Accordingly, it considers that it can conclude on that basis that the applicants have lost interest in the proceedings and no longer intend to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention (see Ibrahim Hayd v. the Netherlands (dec.), no. 30880/10, § 10, 29 November 2011; Kadzoev v. Bulgaria (dec.), no. 56437/07, § 7, 1 October 2013; M.H. and Others v. Cyprus (dec.), no. 41744/10, § 14, 14 January 2014; and M.Is. v. Cyprus (dec.), no. 41805/10, § 20, 10 February 2015).", "37. Whilst it is true that the applicants ’ representative has power to represent them throughout the entire proceedings before the Court, that power does not by itself justify pursuing the examination of the case ( see Ali, cited above, § 32, and Ramzy v. the Netherlands (striking out), no. 25424/05, § 64, 20 July 2010 ). It would appear in the present case that the last time the applicants and their lawyer were in contact was on a date prior to the judgment given by the Chamber on 7 July 2015 and that the applicants are unaware of that judgment and of the referral of the case to the Grand Chamber. In the circumstances the Court considers that the applicants ’ representative cannot now meaningfully pursue the proceedings before it, in the absence of instructions from her clients, particularly regarding the factual questions raised by the new documents produced by the Government (see Ali, § 32; Ramzy, § 64; and M.H. and Others, § 14, all cited above).", "38. Regarding the submission by the applicants ’ representative that this situation has arisen as a result of their precarious living conditions in Serbia, the Court observes that the applicants returned to their country of their own volition and that their departure from Belgium does not appear to have resulted in the loss of contact with their lawyer. She affirms that she maintained contact with them throughout the proceedings before the Chamber. In the present case the loss of contact was not therefore a consequence of any act of the respondent Government (see, conversely, Diallo v. the Czech Republic, no. 20493/07, §§ 44-47, 23 June 2011). Nor is there anything to suggest that the precarious conditions in which the applicants lived in Serbia were such as to prevent them from maintaining some form of contact with their lawyer, if necessary through a third party, for such a long period (see Sharifi and Others, cited above, §§ 131-32, and M.H. and Others, cited above, § 14 ).", "39. The Court also takes note of the concern expressed by the applicants ’ representative that in the event that the case were struck out of the list by the Grand Chamber the applicants would lose the benefit of the judgment delivered by the Chamber. It does indeed appear from the relevant provisions of the Convention that where a request for referral has been accepted by the panel of the Grand Chamber the judgment of the Chamber does not become final (Article 44 § 2 of the Convention, a contrario ) and thus produces no legal effect. The judgment of the Chamber will be set aside in order to be replaced by the new judgment of the Grand Chamber delivered pursuant to Article 43 § 3 (see K. and T. v. Finland [GC], no. 25702/94, § 140, ECHR 2001 ‑ VII) with which the parties are obliged to comply in accordance with Article 46 § 1. Such a situation, which, in the instant case, would be prejudicial to the applicants is, however, the consequence of their lack of contact with their lawyer and not of the Government ’ s use of the possibility, provided for in Article 43 § 1 of the Convention, of requesting that the case be referred to the Grand Chamber. The Court would observe, moreover, that if the circumstances justify such a course the applicants can request that the application be restored to the list of cases under Article 37 § 2 of the Convention.", "40. Having regard to the foregoing and in accordance with Article 37 § 1 (a) of the Convention, the Court has to conclude that the applicants do not intend to pursue their application. It also considers that no particular circumstance relating to respect for the rights guaranteed by the Convention or its Protocols requires it to continue the examination of the application pursuant to Article 37 § 1 in fine.", "41. Accordingly, the case should be struck out of the list." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicants were born in 1951 and 1954 and live in the towns of Novi Sanzghary and Zolotnosha, Ukraine.", "5. According to the first applicant, between 8 and 8:30 a.m. on 28 October 2001, as he was leaving his house, he came face to face with Police Major I. and two strangers. They threatened him and then hit him and pushed him inside the house. The attackers then set the house on fire and left, barring the door.", "6. The house exploded and the first applicant was projected outside, while other members of his family, who were asleep, remained inside.", "7. Later the same day the first applicant and four other members of the applicants ’ family, 21-year - old Z. F. (the second applicant ’ s daughter), 6-year - old S. F. (the applicants ’ granddaughter), 3-year - old M. F. (the applicants ’ grandson ) and 15 - year - old T. L. , were admitted to hospital with burns and gas intoxication. Z. F. , S. F. and M. F. died in hospital.", "8. Two other members of the applicants ’ family were found dead in the house : 25-year - old V. F. (the first applicant ’ s son) and 6-year - old Y. F. (the applicants ’ grandson).", "9. The first applicant informed the police that the fire had been caused by an arson attack carried out by Major I. from the Kryukov police department. He believed that it was a punishment attack for failure to pay a monthly bribe of 200 Ukrainian hryvnias (UAH) claimed by the police. Major I. had allegedly visited the first applicant ’ s house before and allegedly extorted money from the applicants ’ relative, Z. F. , in payment for not instituting criminal proceedings against her for drug trafficking. In that connection Major I. had allegedly already been bribed with UAH 800. The first applicant also maintained that Major I. had previously threatened to set his house on fire.", "10. According to an article in the local newspaper, “ police officers burned alive a Gypsy family since they had refused to pay a usual share from selling drugs ”. A local prosecutor said that in one of the burned houses they used to sell drugs. He also said that the version of “police drug lords ’ complicity” in the crime was being checked. A neighbour testified that the applicants ’ family was a poor one and that Z. F. had been selling heroin ( ширку ) for a couple of months but then she had been beaten by police officers “for she was inexperienced”. The first applicant said that Major I. had threatened to burn them alive since they had failed to pay UAH 200 in monthly bribes.", "The newspaper article also contained the following passages:", "“ Several dozens Gypsies, who came to the victims ’ funeral, told the journalists: “Yes, there exists fascism in respect of Gypsies in Ukraine, their ethnic minority rights are being breached”", "[ ... ]", "“Very often it is mentioned in the police reports that drugs are sold by “ persons of Gypsy ethnicity”, while Ukrainians also sell drugs ”", "11. On 28 October 2001 the Kremenchug District Prosecutor instituted criminal proceedings for the murder of V .F. and Y. F. On 6 November 2001 the Poltava Regional Prosecutor ’ s Office instituted criminal proceedings for the arson attack on the first applicant ’ s house. These two cases were later joined.", "12. The Poltava Regional Police Department ( Управління Міністерства внутрішніх справ України в Полтавській області ) conducted an internal inquiry into the allegations of Major I. ’ s involvement in the arson attack on the first applicant ’ s house. During the inquiry, the first applicant again stated that Major I. had extorted 200 UAH from the first applicant ’ s daughter - in - law for not prosecuting her for selling drugs. The inquiry further established that at 9 a.m. on 28 October 2001 Major I. left home with his wife. On their way they met their neighbours. However, the written explanations given by Major I. and his wife stated that they had left the house at 8. 20 a.m. Later Major I. was seen with his wife at the markets in town, where they talked to furniture and clothes retailers and to a couple named Su. At 1 p.m. Major I. returned home. It was also found that on 4 October 2001 Major I. had arrested Z. F. , who was later released, and on 20 October 200 1 he had searched the first applicant ’ s house.", "13. In particular, in his explanations given on an unidentified date, Major I. stated that “it was likely that I knew by sight the inhabitants of the house on Shkolnaya street, but I did not know their names. I ’ ve seen there all Gypsies and know that they sell drugs there. But it is difficult to catch Gypsies ... ”", "14. It was concluded that these circumstances, as well as “the first applicant ’ s head injuries sustained as a result of the explosions” could have been the reason why the first applicant slandered Major I. On 10 December 2001 the conclusion reached in the inquiry, namely that Major I. had not been involved in the arson attack on the first applicant ’ s house, was sent to the Poltava Regional Prosecutor ’ s Office.", "15. On 14 November 2001 a certain N., who was suspected of burning down the first applicant ’ s house, was charged with murder and destruction of property.", "16. On various dates further criminal proceedings were instituted against at least six individuals for three counts of arson and murder, which took place on 28 October 2001. In April 2002 the cases against these individuals were separated from the case against N., since the former were all missing.", "17. In May 2002 the applicants ’ representative requested the prosecutor to question (i) the doctors who had been providing first aid to the victims, (ii) the applicants ’ neighbour, who had allegedly been told by police not to testify, and (iii) Major I. ’ s former wife, who had allegedly seen his car.", "18. On 1 June 2002 the applicants ’ lawyer requested the investigator to establish criminal responsibility on the part of Major I. for the arson attack.", "19. On the same day a face-to-face cross-examination was held between the first applicant and Major I. The applicant gave his account of events and described the clothes Major I. had been wearing on the morning of the arson attack. Major I. denied all the accusations.", "20. The same day the prosecutor rejected the applicants ’ request for Major I. to be prosecuted for the arson attack, on the basis of Major I. ’ s contentions, the conclusions of the internal inquiry and the existence of other accused who did not confirm the involvement of Major I. in the attack. In particular, D. testified that in the morning of 28 October 2001 he had driven three people to the first applicant ’ s house, and that Major I. had not been among them.", "21. In July 2002 the criminal case against N. was submitted to the court.", "22. On 11 December 2002 the Poltava Regional Court of Appeal, acting as a court of first instance, considered the criminal case against N. and G., and remitted it for further investigation. In particular, the court noted that a certain X. “had planned to destroy and damage by way of arson three houses in which lived persons of Gypsy ethnicity”. N. and G. were accused of acting on the orders of X. together with seven other people. The court indicated numerous shortcomings in the investigation. In particular, G. ’ s complaints that he had been ill-treated by police with the aim of extracting a confession from him had to be checked; it was not established who had taken part in the arson attack and what each person ’ s role was; others allegedly involved in arson attacks were wanted, but nothing had been done to search for them. The court noted in particular that the investigation should check Major I. ’ s alibi and establish why and on what grounds, when arresting Z. F. and searching the first applicant ’ s house, he had been working outside his area of territorial jurisdiction. The applicants also testified in a court hearing that Major I. had threatened them with reprisal. The court, however, did not specify in its decision what the reason for the alleged reprisal was. The court noted that Major I. himself admitted that he had visited the first applicant ’ s house several times in 2001. The first applicant was also not informed about the decision not to institute criminal proceedings against Major I. The documents from the internal investigation were not joined to the criminal case file and the applicants ’ representative ’ s request of May 2002 was not answered. The court noted that Major I. ’ s former wife, the ambulance doctors, the firemen and the first applicant ’ s neighbours should be questioned. Finally, the court indicated a large number of various investigative actions which were to be performed by investigation authorities.", "23. According to the applicants, in a court hearing N. said: “We had to put those [ ... ] Gypsies in their place. The police should do this!”", "24. On 6 March 2003 the Supreme Court of Ukraine upheld the decision of 11 December 2002. It has, however, decided that it was not necessary to carry out the reconstruction of events as indicated by the Court of Appeal.", "25. On 16 June 2 003 the Kremenchug Prosecutor ’ s Office refused to institute criminal proceedings against Major I. It was held, without any particular specifications, that further checks had been performed and it had been established that Major I. had not been involved in the arson attack.", "26. On 10 July 2004 the criminal proceedings were stayed, because other perpetrators could not be found.", "27. On 23 September 2004 the criminal proceedings in respect of N. were resumed.", "28. On 21 January 2005 the Kremenchug Court found N. guilty of wilful destruction of property which caused significant pecuniary damage and sentenced him to five years ’ imprisonment, suspended, with two years ’ probation. The court found that N., No. and S. had arrived at the first applicant ’ s house in order to “destroy the houses of persons of Gypsy ethnicity who sell drugs”. N. chased people out of the house while No. and S. did not wait until everybody was out before setting the house on fire. N. testified in a court hearing that his aim had been to destroy the house of drug traffickers. His task was to evict the people from the house, but his accomplices did not wait for him, and had set the house on fire with people inside, including him. The court found that N. had been “in some way” dependent on No. and S., and had acted as their accomplice. His story was confirmed by various evidence, in particular, he had received burns and spent some time in hospital afterwards. The court awarded the first applicant UAH 13, 820 for destruction of property and entirely rejected the applicants ’ civil claim for damages caused by the death of their relatives and by the injuries sustained by the first applicant, on the ground that these had not been caused as a result of the actions or intentions of N.", "29. The prosecutor and the applicants appealed, claiming that N. ’ s sentence was too lenient. In their appeal the applicants noted that the first-instance court had not assessed the evidence of the first applicant and one other survivor of the arson attack, who had witnessed the involvement of Police Major I. in the attack. They also noted that according to N. and G. ’ s testimonies the arsons had been planned and organised well ahead since the inflammable mixture had been bought and several cars had been sent to set on fire houses of persons of Romani ethnicity.", "30. On 20 May 2005 the Poltava Regional Court of Appeal quashed the judgment of 21 January 2005 due to procedural defects of the trial in the first-instance court.", "31. On 22 June 2005 the criminal proceedings against N. were terminated because of his death.", "32. On 4 December 2008 the decision of 10 July 2004 to stay the proceedings was quashed by a prosecutor. No further information about the proceedings in the case is available." ]

[ "II. RELEVANT INTERNATIONAL DOCUMENTATION", "Second report on Ukraine by the European Commission against Racism and Intolerance (ECRI) adopted on 14 December 2001", "33. The relevant extracts from the report read as follows:", "“56. As is the case in some European countries, the Roma/Gypsy population of Ukraine is faced with situations of severe socio-economic disadvantage, but also with manifestations of prejudice, discrimination and violence on the part of the majority population and sometimes on the part of the authorities, particularly law enforcement officials. ECRI expresses concern at this situation and considers that policies are urgently needed to address the position of the Roma/Gypsy communities in Ukraine in order to ensure that the members of these communities enjoy in practice the same rights as the rest of the population of Ukraine. ECRI believes that the first necessary step towards developing an appropriate response to the problems faced by the Roma/Gypsy population of Ukraine is the recognition on the part of the authorities that such problems exist and that they need to be addressed [ ... ].", "58. Another priority area for action identified by ECRI is the behaviour of the law enforcement officials vis-à-vis members of the Roma/Gypsy communities. In this respect, ECRI notes with concern frequent reports of excessive use of force, ill-treatment, verbal abuse and destruction of property by law enforcement personnel. Discriminatory practices are also reported to be widespread and include arbitrary checks, unwarranted searches, confiscation of documents and, as noted in ECRI ’ s first report, discriminatory enforcement of crime prevention policies targeting persons with criminal records. ECRI urges that action be taken to address manifestations of unlawful behaviour on the part of law enforcement officials generally, including through a more effective institutional response to such manifestations and through training and awareness raising measures. In addition, noting reports that the response of the police to crimes committed by the general population against Roma /Gypsies is often inadequate, ECRI recommends that the Ukrainian authorities take measures to ensure that the police react promptly and effectively to all crimes, including those committed against Roma/Gypsies and, in line with its recommendations formulated above, to ensure that the racist element of such offences is duly taken into account.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "34. The applicants complained that their relatives had died as a result of an arson attack with the direct involvement of a State agent, Police Major I.", "They further complained that the State authorities had failed to conduct a thorough and effective investigation into the circumstances of the death of their relatives and of Major I. ’ s involvement in the arson attack. They relied on Article 2, which provides, in so far as relevant, as follows:", "“1. Everyone ’ s right to life shall be protected by law. ... ”", "A. Admissibility", "35. The Government argued that the applicants had failed to challenge the refusal of 16 June 2003 of the prosecutor to institute criminal proceedings against Major I. with the higher prosecutor or the court. Therefore, they did not exhaust effective domestic remedies in respect to their complaints under Article 2 of the Convention.", "36. The applicants disagreed, pointing out that there was no evidence that the State authorities, having twice rejected the applicants ’ claims, would reach a different conclusion if faced with another complaint. The applicants noted that Article 35 of the Convention must be applied with some degree of flexibility and without excessive formalism (see Kucheruk v. Ukraine, no. 2570/04, § 109, 6 September 2007 ). They indicated that they had done everything possible in the circumstances, had provided evidence to the police, and had lodged complaints and appeals, although, according to the applicants, all they had to do was bring the case to the attention of the competent authorities. The applicant noted that in the case of Assenov and Others v. Bulgaria ( 28 October 1998, § 86, Reports of Judgments and Decisions 1998 ‑ VIII ) the Court had found that “the applicants made numerous appeals to the prosecuting authorities at all levels, requesting that a full criminal investigation of Mr Assenov ’ s allegations of ill-treatment by the police be carried out ” and considered that, “having exhausted all the possibilities available to him ... the applicant was not required ... to embark on another attempt to obtain redress”. Thus, the applicants concluded that they had exhausted all available domestic remedies.", "37. The Court notes that the Government ’ s objection is closely linked to the applicants ’ complaint under the procedural limb of Article 2 of the Convention. In these circumstances, it joins the objection to the merits of the applicants ’ complaint (see, mutatis mutandis, Lotarev v. Ukraine, no. 29447/04, § 74, 8 April 2010).", "38. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. Procedural obligations under Article 2 of the Convention", "(a) The parties ’ submissions", "39. The applicants noted that the investigation following the arson attack on the first applicant ’ s house suffered from a number of crucial omissions which made it ineffective. The conclusion that Major I. was not involved in the arson attack was reached without interviewing key eyewitnesses. According to the applicants, the first applicant was questioned by investigating officers only a month after the events in question and because he went to the investigator on his own initiative, without being summoned. The applicants also underlined that the national authorities, and in particular the Poltava Regional Court of Appeal in its decision of 11 December 2002, pointed out numerous shortcomings in the investigation and remitted the case for additional investigation. The applicants concluded that the authorities had not complied with their procedural obligation under Article 2 of the Convention.", "40. The Government noted that both the police internal investigation and the prosecutor ’ s office had established that Major I. had not been involved in the arson attack. The Government further stated that the circumstances of the incident had been clarified and those responsible for the arson attack had been identified. Numerous and various procedural actions had been taken, including four reconstructions of the incident, four searches, eleven identification parades, sixty - three interviews, one confrontation (between the first applicant and Major I.), and seventeen forensic examinations. The applicants ’ complaints that Major I. had been involved in the incident were properly checked and the national authorities did all which is necessary to find those responsible for the arson attack.", "(b) The Court ’ s assessment", "i. General principles", "41. The Court reiterates that Article 2 of the Convention imposes a duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also requires by implication that there should be an effective official investigation when individuals have been killed. The duty to conduct such an investigation arises in all cases of killing and other suspicious death, whether the perpetrators are private persons or State agents, or are unknown (see Angelova and Iliev v. Bulgaria, no. 55523/00, § 94, 26 July 2007, and Rantsev v. Cyprus and Russia, no. 25965/04, § 232, ECHR 2010 (extracts) ).", "42. The investigation must be effective in the sense that it is capable of leading to the establishment of the relevant facts and the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to them to secure all the evidence concerning the incident. The investigation ’ s conclusions must be based on thorough, objective and impartial analysis of all the relevant elements. Furthermore, the requirements of Article 2 of the Convention go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required measure of effectiveness. The national courts should not under any circumstances be prepared to allow life- threatening offences to go unpunished (see, mutatis mutandis, Mojsiejew v. Poland, no. 11818/02, § 53, 24 March 2009, and Esat Bayram v. Turkey, no. 75535/01, § 47, 26 May 2009 ).", "43. For an investigation to be effective, the persons responsible for and carrying out the investigation must be independent and impartial, in law and in practice. This means not only a lack of hierarchical or institutional connection with those implicated in the events but also independence in practice. The effective investigation required under Article 2 serves to maintain public confidence in the authorities ’ maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. In all cases, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see, for example, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § § 321-322, ECHR 2007 ‑ II; Khaindrava and Dzamashvili v. Georgia, no. 18183/05, §§ 59-61, 8 June 2010; Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 222-225, ECHR 2004 ‑ III; and Güleç v. Turkey, 27 July 1998, § 82, Reports of Judgments and Decisions 1998-IV).", "ii. Application of these principles in the present case", "44. The Court notes that in the present case, despite the heinous nature of the incident, in which small children were burned alive, it appears that State authorities limited the investigation to some basic procedural steps.", "45. In particular, despite the Government ’ s reference to a number of procedural actions performed during the investigation of the criminal case, in the absence of the case-file materials it is unclear what exactly was examined, who was questioned during the investigation and when these actions were taken. In its decision of 11 December 2002 the Poltava Regional Court of Appeal indicated numerous shortcomings of the investigation, and noted numerous procedural actions which had to be performed. That was confirmed by the Supreme Court of Ukraine. From the materials submitted by the Government it is unclear whether these recommendations had been taken into consideration and complied with by the investigation authorities.", "46. The Court also notes that since 2004 none of the at least six suspects of involvement in the arson attack on the first applicant ’ s house and other houses on 28 October 2001 have been found, and notes that there is no evidence that anything was done to find them.", "47. As for the investigation of Major I. ’ s possible involvement in the arson attack, the Court also notes that it appears from the available materials that the prosecutor ’ s office simply referred to the conclusion of the police internal investigation. Although it was stated in the decision of 16 June 2003 that “further checks had been performed” there is no evidence what exactly had been done.", "48. The Court accepts that not every investigation is necessarily successful or comes to a conclusion coinciding with the claimant ’ s account of events. However, it should in principle be capable of leading to the establishment of the facts of the case and, if the allegations prove to be true, to the identification and punishment of those responsible (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002-II).", "49. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicants ’ relatives ’ deaths had not been effective. It accordingly dismisses the Government ’ s objection ( see paragraph 3 7 ).", "There has therefore been a violation of the procedural limb of Article 2 of the Convention.", "2. The alleged violation of the right to life of the applicants ’ relatives", "50. The applicants stated that the deaths of their relatives had been caused by a violent arson attack, organised and carried out with the participation of a State agent.", "51. The Government stated that it had been established by an internal police investigation and by the prosecutor on 16 June 2003 that Major I. had not been involved in the arson attack.", "52. The Court reiterates that Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivation of life to the most careful scrutiny, taking into consideration all relevant circumstances.", "53. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Aktaş v. Turkey, no. 24351/94, § 271, ECHR 2003-V (extracts), with further references).", "54. The Court notes that in the present case it is undisputed that Major I. knew the applicants, had been to the first applicant ’ s house and had been involved in some police operations against one of the applicants ’ relatives, though it appears that in doing that he had been acting outside his jurisdiction. The question to be answered is whether the applicants slandered Major I. in accusing him of involvement in the police operations, or whether Major I. had indeed been involved in the arson attack.", "55. The Court first notes that there is no convincing evidence that Major I. had an alibi for the morning of 28 October 2001. For example, the time Major I. allegedly left for the markets in the morning has not been precisely established and is not corroborated by other witnesses (such as Major I. ’ s neighbours).", "56. Further on, the first applicant stated that he had recognised Major I. among the arsonists. The applicants further suggested that several witnesses (a neighbour, Major I. ’ s former wife) could have seen Major I. on the morning of the tragic event near the first applicant ’ s house. However, the Court does not have any other evidence, except for the applicants ’ statements, that Major I. had indeed participated in the events in question, as it appears that these witnesses were not questioned. Although the first applicant described the clothes which Major I. had been allegedly wearing in the morning of 28 October 2001, the investigation authorities did not check this with other possible witnesses.", "57. Therefore, in the absence of other evidence, and given the above conclusion that there was no effective investigation in the present case, the Court cannot draw a conclusion beyond reasonable doubt as to whether Major I. was or was not involved in the arson attack which caused the deaths of the applicants ’ relatives, and if he was, in what capacity that was.", "It is not, therefore, possible to conclude that there has been a violation of the substantive limb of Article 2 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF THE CONVENTION UNDER ITS PROCEDURAL LIMB", "58. The applicants further invoked Article 14 taken in conjunction with Article 2 of the Convention under its procedural limb. Article 14 of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "59. The Court notes that this complaint is linked to the one examined above (see paragraphs 35-38) and must therefore likewise be declared admissible.", "B. Merits", "60. The applicants noted that they had offered evidence of racist motive in the crime. In this case there exists an explicit obligation to investigate possible racist overtones in the events in question (see Šečić v. Croatia, no. 40116/02, § § 66-70, 31 May 2007 ). Despite the information available to the authorities that several houses, in which the Romani lived, had been set on fire during the same day, and the express racist statement of one of the accused, there was no evidence that the authorities had carried out any examination into allegations that there had been a crime motivated by ethnic hatred.", "61. The Government submitted that Article 14 of the Convention applied only when the alleged violation had been committed by the State agents. However, in the present case there were private persons charged with a crime. The Government therefore contended that there has been no violation of Article 14 of the Convention in the present case.", "62. The Court recalls firstly that, according to its established case-law, discrimination means treating differently, without any objective and reasonable justification, persons in relevantly similar situations. However, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-....).", "63. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those texts. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see Koppi v. Austria, no. 33001/03, § 25, 10 December 2009).", "64. The Court further reiterates that in respect of cases of deprivation of life, States have a general obligation under Article 2 of the Convention to conduct an effective investigation including cases which involve acts of private individuals (see Muravskaya v. Ukraine, no. 249/03, § § 41-50, 13 November 2008 ), and that obligation must be discharged without discrimination, as required by Article 14 of the Convention.", "65. In particular, when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII; mutatis mutandis, Šečić v. Croatia, cited above, § 67 ).", "66. Admittedly, proving racist motivation will often be extremely difficult in practice. The respondent State ’ s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160, ECHR 2005-...).", "67. In the instant case the Court has already found that the Ukrainian authorities violated Article 2 of the Convention in that they failed to conduct an effective investigation into the incident. It considers that it must examine separately under Article 14 of the Convention taken in conjunction with Article 2 of the Convention under its procedural limb the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and the attack on the applicants ’ relatives.", "68. In this respect the Court observes that on 28 October 2001 three houses, in which lived people of Romani origin, were set on fire. The alleged motive of the arsonists was destruction of houses of drug dealers. However, any information as for whether the inhabitants of two other houses were involved in drug trafficking is absent. Moreover, given the widespread discrimination and violence against Roma in Ukraine as noted, in particular, by the report of the ECRI, it cannot be excluded that the decision to burn the houses of the alleged drug traffickers had been additionally nourished by ethnic hatred and thus it necessitated verification.", "69. The Court, however, notes that there is no evidence that the authorities have conducted any investigation into the possible racist motives of this crime.", "70. The Court considers it unacceptable that in such circumstances an investigation, lasting over eleven years, did not give rise to any serious action with a view to identifying or prosecuting the perpetrators.", "71. Consequently, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 2 of the Convention.", "III. REMAINING COMPLAINTS", "72. The applicants complained that they and their deceased relatives had been subjected to inhuman and degrading treatment, and that there had been no effective investigation of their complaints, in breach of Article 3 of the Convention. They further cited Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1. The applicants further alleged that the violations they had suffered as a result of the brutal incident at issue had been predominately due to their Romani ethnicity. They therefore considered that there had been a violation of Article 14 taken in conjunction with the above Articles and with Article 2 of the Convention under its substantive limb.", "73. The Court notes that these complaints are linked to the ones examined above and must therefore likewise be declared admissible.", "74. Having regard to the findings relating to Articles 2 and 14 ( see paragraphs 44-49, 54-57 and 67-71 above ), the Court considers that it is not necessary to examine separately whether, in this case, there has been a violation of these other provisions of the Convention ( see Koky and Others v. Slovakia, no. 13624/03, § § 241-244, 12 June 2012; among other authorities in respect of Article 13 of the Convention, Timur v. Turkey, no. 29100/03, §§ 35 ‑ 40, 26 June 2007 ).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "75. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "76. The second applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage inflicted on her by the deaths of her relatives, damage caused to the health of her son, and improper investigation of these events. The first applicant made no claims in this respect.", "77. The Government stated that “the questions put to the Government in this case as regards the applicants ’ complaints of a violation of Article 3 of the Convention had no connection with those complaints by the second applicant”. The Government therefore considered that the second applicant ’ s claims should be rejected.", "78. The Court considers that the second applicant must have sustained non-pecuniary damage and, deciding on an equitable basis, awards her EUR 20 ,000 in this respect.", "B. Costs and expenses", "79. The applicants also claimed EUR 9,075 for costs and expenses incurred before the Court. The applicants ’ representative submitted the time-sheet that between 2002 and 2009 the lawyers of the European Roma Rights Centre had spent 121 hours on the case at a rate EUR 75 per hour.", "80. The Government submitted that these claims were unsubstantiated.", "81. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,000 for the proceedings before the Court. This amount is to be paid into the bank account of the European Roma Rights Centre.", "C. Default interest", "82. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant, Mrs Assya Anguelova, is a Bulgarian national who was born in 1959 and lives in Razgrad.", "10. On 29 January 1996 her son, Anguel Zabchekov, aged 17, who had been known to the police as a suspect on theft charges, died after having spent several hours in police custody in Razgrad following his arrest for attempted theft. The ensuing investigations conducted by the prosecution authorities ended with the conclusion that the death must have been caused by an accidental injury which pre-dated Mr Zabchekov's arrest. The applicant contested that conclusion.", "The applicant describes herself and her late son as belonging to the Roma/Gypsy ethnic group).", "A. Evidence about the whereabouts of Mr Zabchekov on 28 January 1996", "11. According to the statements of several witnesses, on 28 January 1996 Mr Zabchekov spent part of the day doing some odd jobs for a neighbour. In the evening he went home for a while and then went out with his sister, her boyfriend and a Mr M., another friend of his. He then spent most of the evening in their company at a local bar. He consumed alcohol.", "At about 10.30 p.m. or 11.30 p.m. Mr Zabchekov's sister and her boyfriend left the bar, leaving him there with Mr M. The bar closed shortly afterwards. Mr M. stated that he had then left the bar with Mr Zabchekov and that they had parted at the door, Mr M. returning home.", "All the witnesses (the owner of the bar, the person for whom Mr Zabchekov had worked that day, his sister and her boyfriend, and Mr Zabchekov's father, who was at home when his son dropped in on his way to the bar) were unanimous that he had been in good health, that he had no visible injuries on his body, that he had not been involved in any quarrel or fight, and that he had consumed alcohol.", "B. The chase in Beli Lom Street and Mr Zabchekov's arrest", "12. At about midnight on 29 January 1996 a Ms I.A., who lived in a block of flats in Beli Lom Street in Razgrad, noticed from her balcony a man later identified as Mr Zabchekov hanging around by parked cars, bending over and “doing something”. Ms I.A. telephoned a neighbour, Ms I.M. The two women shouted at Mr Zabchekov from their balconies to ask him what he was doing. At that moment Sergeant Mutafov (“C”), a police officer who was not on duty that day, and a young man (“D”), both of whom also lived in the same block of flats, were passing by in the street and were alerted by their neighbours.", "13. Mr Zabchekov attempted to run away, and C ran after him. The chase apparently continued for a minute or two. Then D and his two neighbours saw C appearing from around the corner, holding Mr Zabchekov and leading him back to the entrance of the building. The witnesses stated that there had been snow on the ground.", "14. C later stated that while trying to run away Mr Zabchekov had slipped and fallen down but had quickly stood up again. This was confirmed by Ms I.A. and Ms I.M., who had been watching from their balconies. They explained that Mr Zabchekov had fallen on a patch of grass. However, D, who had remained in the street and had also observed the incident, stated that he had not seen Mr Zabchekov falling at any moment before his arrest. He repeated that statement at a confrontation with the other witnesses.", "15. C was the only witness of the events between the moment when Mr Zabchekov and he had turned round the corner and the moment when they had reappeared in front of the building in Beli Lom Street. C stated that Mr Zabchekov had slipped and fallen down two more times. As a result, C had been able to catch up with him and, while Mr Zabchekov was back on his feet and running, C had tripped him up, Mr Zabchekov had fallen to the ground and C had pounced on him. C had then pulled Mr Zabchekov up by the arm and had led him back. Asked to specify the part of his body on which Mr Zabchekov had fallen, C replied that the boy had fallen on his face. C could not remember whether Mr Zabchekov had protected his face with his hands. C also stated that he had had difficulty in running and apprehending Mr Zabchekov because he had had a leg injury and his shoelaces had been untied.", "16. Sergeant Dimitrov (“G”), one of the police officers who arrived later, stated as follows: “When we arrived on the spot [C] told us that while he was trying to arrest Mr Zabchekov the latter ran away and fell two or three times and that if he had not fallen C would not have been able to catch up with him.”", "C. Events between Mr Zabchekov's arrest and the arrival of the police", "17. The witnesses were unanimous that, while C had been leading Mr Zabchekov back to the entrance of the block of flats, the latter had slipped and fallen. There were discrepancies as to precisely how that had happened. Ms I.M., who observed the incident from her balcony, stated that when C and Mr Zabchekov had reappeared from around the corner of the building, the latter had slipped, fallen and rolled over. D stated, however, that Mr Zabchekov's leg had slipped and he had fallen on his buttocks. C maintained that Mr Zabchekov had in fact only slipped but had not fallen, because he had been holding him.", "18. C stated that he had not hit Mr Zabchekov and had not seen anyone hitting him. That was confirmed by Ms I.A. and Ms I.M. The latter, who was also the owner of one of the cars in the car park, clarified that she had indeed seen Mr Zabchekov rolling on the ground when C was leading him back after the chase, but stated that she had not seen anyone kicking him or beating him. D did not mention whether he had seen anyone hitting Mr Zabchekov.", "19. C also stated that when he had been in close contact with Mr Zabchekov after arresting him he had not noticed any traces of blood or any grazes on his face. He added that Mr Zabchekov's hair covered part of his forehead and that the colour of his face was dark. D stated that he had not noticed any blood or grazing on Mr Zabchekov's face. He added that the latter smelled of alcohol.", "20. Having apprehended Mr Zabchekov, C asked Ms I.M. to call the police, which she did at about 12.20 a.m. Afterwards, she remained inside her flat.", "21. C, D and Mr Zabchekov waited at the entrance of the block of flats, apparently for about ten or twenty minutes. It appears that Ms I.A., who stayed on her balcony, did not have a view of the entrance.", "22. The witnesses' statements contain few details as to whether there was any kind of verbal exchange between Mr Zabchekov and any of them before the arrival of the police. Some of the witnesses stated that Mr Zabchekov had been mumbling something barely comprehensible. According to Ms I.M., who was watching from her balcony, Mr Zabchekov had repeated several times that he was drunk. Ms I.A., Ms I.M. and C stated that, when Mr Zabchekov had fallen to the ground after being arrested, C had told him: “Get up, I'm not going to drag you.” D stated that he had not heard any such words being uttered. None of the witnesses' statements indicates whether C or D spoke with Mr Zabchekov during the time when they were alone with him at the entrance of the block of flats.", "23. In the statement he gave on 29 January 1996, C said that, after the police had left with Mr Zabchekov, he had found a wrench on the spot where D, Mr Zabchekov and himself had been waiting for the police to arrive. C thought that it must have belonged to Mr Zabchekov as it was the right size for removing a car battery. C explained in his statement that he had kept the wrench and had handed it over to the investigator in the morning on 29 January 1996 when he had been summoned to the police station after the death of Mr Zabchekov. However, in a statement taken on 31 January 1996 Sergeant Atanassov (“H”), who had been on duty at the police station when Mr Zabchekov was brought there, said that he had noticed the wrench on a desk at the police station no later than 1.30 a.m., shortly after Mr Zabchekov had arrived there. At a confrontation with the other police officers on 26 April 1996, H recalled that he had in fact first seen the wrench at a later stage.", "D. The arrival of the police at Beli Lom Street", "24. When the telephone call was received at the local police station a patrol car with two police officers, Sergeants Penchev (“A”) and Kolev (“B”), was dispatched to the address. When the police officers arrived they saw C and Mr Zabchekov at the entrance of the block of flats. D was also standing nearby.", "25. A recognised Mr Zabchekov, whom he knew as a suspect in several pending theft investigations, and addressed him by name. He handcuffed him. A and some of the other police officers later asserted that at that moment A warned the others to be careful as Mr Zabchekov had a “brain disease”.", "26. Another police car, with three police officers, Sergeants Ignatov (“E”), Georgiev (“F”) and Dimitrov (“G”), arrived shortly afterwards. The officers then proceeded to search the area for evidence of attempts by Mr Zabchekov to break into cars. At some point, A led Mr Zabchekov to one of the cars which appeared to have been broken into and asked him whether he had been trying to steal anything. Mr Zabchekov allegedly denied this. He was then handcuffed to a small tree and the police officers continued to search the area. Having identified two cars which had been broken into, the police officers rang the owners' doorbells. One of them came out and went to see the damage done to his car. During that time Mr Zabchekov remained handcuffed to the tree.", "27. The only witnesses who gave details about the events between the police's arrival and their departure with Mr Zabchekov were the police officers on duty. Ms. I.A., and D merely stated that the police officers had searched the area. C stated that he had gone to alert the owners of the cars. He had only seen that at a certain point Mr Zabchekov was with the police officers at the car park, where his colleagues were comparing the soles of Mr Zabchekov's shoes with traces visible in the snow. One of the car owners was questioned, but only in respect of the damage caused to his car, by a police officer who visited the site later, at about 11 a.m. on 29 January 1996.", "28. According to some of the police officers, at some point when they were searching the area they had noticed Mr Zabchekov lying or sitting on the ground. A stated that at that point he had released Mr Zabchekov from the tree, placed him on the back seat of the police car and handcuffed both his hands. All the police officers who were present in Beli Lom Street stated that at that time they had not noticed any trace of injury on Mr Zabchekov's face. Some of them stated that he appeared to be drunk, and that he had been mumbling and had not been communicative.", "E. Events after Mr Zabchekov's arrival at the police station", "29. At about 12.50 a.m. Mr Zabchekov was taken to the police station by A and B.", "The sergeant on duty, H, stated that he had seen A and B enter the police station with Mr Zabchekov walking between them. The latter's hands had been handcuffed behind his back. A and B had been holding him by the arms and leading him in. Mr Zabchekov had been put in office no. 1. A stated that at that point he had removed the handcuffs from the boy.", "30. No written order for Mr Zabchekov's detention was issued.", "31. According to the statements of A, B and H, Mr Zabchekov stayed in office no. 1 with B and H, while A went to report to the senior officer on duty, Colonel Iordanov (“I”). H further stated that at that moment he had noticed a bruise on Mr Zabchekov's eyebrow. A and B did not mention any injury. H also stated that Mr Zabchekov's clothes had been wet. They all noticed that Mr Zabchekov had been drunk and mumbling.", "Colonel I stated that A had informed him that Mr Zabchekov had been brought to the police station; A had said that the arrested person had been identified, but was too drunk for questioning. Colonel I had not seen Mr Zabchekov until about 4.30 a.m. According to the sergeants' statements, Colonel I had ordered that Mr Zabchekov should be given a seat in the passage to sober up. A had then instructed H to call him over the radio as soon as Mr Zabchekov was able to communicate. At an unspecified time A and B had left the police station and returned to their patrol duties.", "32. H stated that Mr Zabchekov had fallen asleep soon afterwards, on a chair in the passage, and had been snoring. At about 3 a.m. H had allegedly noticed that Mr Zabchekov had been lying asleep on the floor. H had woken him and put him back on the chair, thinking that “he might catch a cold”. H further stated that at about 3.50 a.m. he had again gone to see Mr Zabchekov who had been sitting on the chair, sleeping and shivering. H had decided to move him back to office no. 1, where it had been warmer. He had woken him and helped him enter the room. Shortly afterwards Mr Zabchekov had slipped from the chair. H had noticed that he had been breathing heavily. H stated that at that point he had contacted Sergeant Dontchev (“J”), and had told him “to call Sergeant Penchev [A] or an ambulance”.", "33. J stated that, in accordance with the duty schedule, he had slept on the premises of the police station until 2 a.m. on 29 January 1996, when he had been woken for duty. He had not been informed that anyone was being detained. J's statement did not mention whether, between 2 a.m. and 3.50 a.m., he had gone down the passage where, at that time, according to H, Mr Zabchekov had been sleeping on a chair. J stated that he had only become aware of Mr Zabchekov's presence when at 3.50 a.m. H had reported that the boy's condition seemed to be deteriorating. J had then seen him, noticing injuries on his forehead, and had called A and B by radio.", "34. At approximately the same time H or J had alerted Colonel I, the senior officer on duty. I stated that at that moment he had noticed injuries on Mr Zabchekov's face.", "35. A and B stated that at 4.30 a.m. they had been contacted by radio and had been told that Mr Zabchekov's condition was rapidly deteriorating. Arriving at the police station, the sergeants had seen Mr Zabchekov lying on the ground, breathing heavily. B had then driven to the hospital and had returned, with Dr Mihailov, the paediatrician on duty, following in an ambulance.", "36. Dr Mihailov later stated that at about 5 a.m. the hospital employee in charge of emergencies had asked him to go to the police station “for a 15-year-old boy”. Dr Mihailov explained that he had seen that employee talking to the police officers. He also pointed out that he had not been given any prior information about the boy's condition.", "37. Dr Mihailov examined Mr Zabchekov at the police station and advised that he should be taken to hospital as his pulse rate was low. Mr Zabchekov was driven to the hospital in the ambulance, with A and B following in their police car. When they arrived at the hospital, A and B helped to bring Mr Zabchekov to the corridor in front of the office of the doctor on duty. According to the statements of A and B, when Mr Zabchekov was examined several minutes later by Dr Ivanova, the internist on duty, there had followed a heated discussion between her and Dr Mihailov. The police officers had then been informed that Mr Zabchekov had died.", "38. B stated that Dr Ivanova had said to him and his colleague: “You must have known Mr Zabchekov's condition”, and that she had insisted that she had not seen him breathing.", "39. Dr Mihailov stated that in the police station he had noticed bruises on Mr Zabchekov's chest and that at that time the boy had still been alive but had been unconscious with a weak pulse.", "Dr Mihailov had then asked the police officers how long the boy had been in such a condition. The police officers had replied: “He was brought to the police station in that condition.", "40. Dr Ivanova stated that at about 5 a.m. she had been asked by Dr Mihailov to verify whether a patient who had been brought to the hospital had died. Having found that no cardiac activity was noticeable she had attempted cardiac massage, but to no avail. She further stated that, when she had asked why Dr Mihailov, and not herself, as the internist on duty, had been dispatched to the police station, the hospital employee in charge of emergencies had replied that the request for an ambulance had been said to concern a child, and so it had been decided to send the paediatrician on duty.", "F. The register kept at the Razgrad police station", "41. According to normal practice, all detentions are recorded in a register kept at the police station. The register contains a series of entries organised in columns: the number assigned to the detainee, the name of the officer entering information into the register, the name of the detainee, the reasons for detention, the action taken and the time of release. Information corresponding to each detainee is entered in chronological order.", "42. At the Court's request the Government submitted a copy of the Razgrad police station's register for 29 January 1996. The register does not contain an entry for Mr Zabchekov. However, it contains an entry for an “unidentified person” who was assigned number 72.", "43. The register does not contain a separate column recording the time of detention. In respect of some of the detainees listed on the same page the time of detention is mentioned together with the date. In respect of the “unidentified person”, as with some of the other detainees listed on the same page, there is no mention of the time of detention in the column indicating the date. However, immediately after the words “unidentified person”, there appears, spread over two columns and two lines, the entry “29 I 96, 01. oo ”. A visual examination of the copy of the register shows that the figure “1. oo ” has been written over a figure which, as far as legible, had originally read “3. oo ” or “5. oo ”.", "44. It can be also observed that the registration numbers on the same page have been written over. From the copy provided by the Government it is difficult to see the original numbers that were altered. Nevertheless, it can clearly be seen that there are equal spaces between each of the entries except the numbers “72” and “73”, between which there is a significantly smaller space.", "45. The entry under number 72 for the detention of an unidentified person states that that person was brought to the police station by A. On the right-hand side of the same line there appears a signature which, in so far as it is legible, appears to be that of Colonel I.", "46. In the course of the investigation Colonel I, the senior officer on duty, and J, his assistant that night, were questioned in relation to the registration of Mr Zabchekov's presence at the police station. Colonel I stated that he had not instructed A to register the detainee since A was familiar with the procedure. J stated that shortly after 3.50 a.m., when he had been alerted by H about Mr Zabchekov's deteriorating condition, he had checked the register of detainees but had not seen any entry concerning him. Colonel I further denied having made an entry in the register and stated that the entry for an unknown person had not been there when he had left the police station after Mr Zabchekov's death.", "G. Investigation by the general prosecution and investigation authorities", "47. Early in the morning of 29 January 1996 the police officers involved submitted a written account of the night's events to the head of the local police.", "Towards the end of his handwritten report C stated, with no apparent connection with the surrounding text: “The person I apprehended was swarthy (Gypsy) ” (“ Този когото задържах беше мургав (циганин)” ).", "48. The head of the local police opened file ZM-I no. 128 which contained a summary of the events, the reports of seven police officers and the written statements by D and one of the owners of the cars which Mr Zabchekov had allegedly tried to break into.", "Also early in the morning of 29 January 1996 Mr Neshev, an investigator from the Regional Investigation Service ( Окръжна следствена служба ) in Razgrad opened criminal proceedings under file no. 13/1996 to investigate the death of Mr Zabchekov.", "49. According to the applicant, at 8 a.m. on the same day Mr Neshev, accompanied by two uniformed police officers, went to the house of the applicant's family to inform them of Mr Zabchekov's death. They spoke to the boy's stepfather. According to the applicant, the investigator stated that during the night Mr Zabchekov had tried to break into two cars, that the police had chased him, and that, during the chase, Mr Zabchekov had fallen down and had hit his head against the asphalt.", "50. Also on 29 January 1996, Mr Neshev questioned the police officers involved and D, the young man who had been with Sergeant Mutafov (C) during the brief chase on Beli Lom Street. The investigator also visited the hospital and saw Mr Zabchekov's body. Pictures of the body were taken.", "51. On the same day at about 11.45 a.m. an officer from the local police went to Beli Lom Street in connection with the reported car-theft attempt. He noted that two cars bore signs of attempted theft and questioned their owners. At about 5 p.m., this time apparently acting in connection with the investigation into the death of Mr Zabchekov, he took a sample from a large red patch in the snow. Laboratory analysis revealed that it was animal blood.", "52. Also on 29 January 1996 Mr Neshev ordered an autopsy. He put the following questions to the medical experts:", "“What are the causes of Zabchekov's death? Are there any traumatic injuries on Zabchekov's body? Do they have any causal relation to the death? How were the injuries inflicted? How long was the period between the infliction of the lethal injury and the death and is it possible, as witnesses claimed, that Zabchekov was conscious until 4.30 a.m.? Is the lethal injury related to injuries in places where the skin was broken? Are there any other visible injuries and did they require, in view of their visible characteristics, immediate medical treatment?”", "53. The autopsy was carried out on 29 January 1996 (starting at 11.30 a.m. ) by three doctors at the Regional Hospital in Razgrad. These were Dr Minchev, head of the forensic department, Dr Militerov, head of the pathology department, and Dr Marinov, a doctor in the forensic department.", "54. In their report, dated 29 January 1996 (“the first report”), the experts described their findings in detail. Photographs were taken.", "55. The external inspection of the body revealed, inter alia :", "“At the outer end of the left eyebrow, over the orbital rim, a superficial wound of longish shape, measuring 1 cm by 0.4 cm, with slightly uneven and grazed edges, and covered by a thin brownish scab. The soft tissue around the wound is slightly swollen, the skin being of bluish-purple colour. The eyeball of the left eye is slightly protruded (outwardly) ...", "A slight surface scar 3.5 cm long, with mild bruising ... on ... the left wrist ...", "Two surface bruises measuring 7.5 cm by 0.5 cm and 3.5 cm by 0.6 cm, of brownish colour, covered by a reddish scab on the right wrist ...”", "56. In the concluding part of the report the experts summarised the injuries on Mr Zabchekov's body as follows:", "“[1.] Skull and cerebral trauma: Superficial lacerated contusion (a deep bruise) located on the outer side of the left eyebrow along its orbital rim; haematomas on the skin and in the soft tissue around this wound and on the left eyelid, fracture of the back wall of the left 'eye bone' reaching its lower external side, with a bow-like fissure under the external injury described above; epidural haematoma on the left side (haemorrhage between the brain and the skull bones – 110 ml; epidural oedema ... [identified as the cause of death]).", "[2.] Haematoma on the skin, spotted in a characteristic manner, and haematoma in the soft tissue on the right side of the chest, along the anterior axillary line.", "[3.] Surface skin grazes on the right side of the forehead and on the upper surface of the left wrist with a limited haematoma in the soft tissue under the skin.", "[4.] Haematoma of an oval shape and diameter of 0.5 cm on the mucous membrane of the left lower lip.", "[5.] Two strip-like surface bruises on the skin of typical shape, and haematoma in the soft inner tissue, in the area of the wrist joint of the right hand.”", "57. The experts further concluded:", "“[The death was caused by] accumulated epidural cerebral haematoma on the left-hand side of the forehead, containing 110 ml of blood, followed by a cerebral oedema, with wedging of the cerebellar tonsils into the foramen magnum; this oedema led to the suppression and detachment of vital brain centres (those of breathing and heart activity, which in turn caused a pulmonary oedema), and was the direct cause of death.”", "58. Addressing the question of the manner in which the injuries had been inflicted, the experts stated:", "“1. The injury in the area of the left orbital rim and the left eyeball and the epidural haematoma were caused by a blow by, or against, a blunt object, or an object with a blunt edge, [which had] a delineated [limited] and uneven surface. The blow was sudden and sufficiently strong. It caused the fracture of the back wall of the left 'eye bone' reaching its lower external side (furthermore, the skull bones are 0.2 cm thick);", "2. [The injury to the right side of the chest was caused by] a blow by, or against, a hard blunt object, or an object with a blunt edge, having a larger impact surface. The marks in this area are spotted in a manner characteristic of an imprint of the victim's clothes.", "3. [The injuries to the right side of the forehead and to the wrists were the result of] blows, or pressing, by or against sharp-edged objects. [The injury to the left part of the lower lip was caused by] a blow by or against a hard blunt object having a delineated [limited] surface.”", "59. The experts also stated that in cases of epidural haematoma of the kind Mr Zabchekov had suffered there was characteristically a lucid interval of four to six hours during which no visible signs would be displayed, except that", "“the victim gradually becomes feeble, apathetic and sleepy, after which he falls into a coma and dies – as happened in the present case (during the period between 1 a.m. and 5 a.m. on 29 January 1996 ).”", "The report concluded that Mr Zabchekov's death had been inevitable in the absence of urgent surgical intervention.", "60. The laboratory analysis found an alcohol level of 1.42‰ in Mr Zabchekov's blood and 2.40‰ in his urine, corresponding to a medium level of alcohol intoxication.", "61. According to the applicant, in the morning of 30 January 1996 she went to the office of the Regional Investigation Service in Razgrad and requested information about the circumstances surrounding her son's death. Mr Neshev, the investigator, informed the applicant that her son had died of a skull fracture. According to the applicant, he explained that her son had been trying to steal car parts and that, when the police had sought to apprehend him, he had run away, had fallen down and had hit his head.", "According to the applicant, during this meeting Mr Neshev asserted that her son had been taken to hospital, omitting the fact that he had been in police custody. When asked how Mr Zabchekov's skull could have been fractured as a result of his fall, Mr Neshev had allegedly explained that the autopsy had found an “abnormally thin skull”.", "62. In the afternoon of 30 January 1996, upon receiving Mr Zabchekov's body from the hospital, the applicant and other family members noticed bruises on his body. The applicant went to the office of a local newspaper, spoke with two journalists and took them to her home, where they took pictures of Mr Zabchekov's body and clothes. Late in the afternoon of 30 January 1996 Mr Zabchekov was buried.", "63. On 31 January and 1 February 1996 the investigator questioned Ms I.M. and Ms I.A.", "64. On 31 January 1996, by order of the regional prosecutor, Ms Hadzhidimitrova, the investigation was transferred to the Regional Military Prosecutor's Office ( Окръжна военна прокуратура ). That decision was based on the finding that Mr Zabchekov had died after having been in police detention. The regional prosecutor stated, inter alia :", "“... for several hours immediately preceding [his] death, the minor Zabchekov, apprehended at 1 a.m. on 29 January 1996 while attempting to steal car parts, was taken by [police] officers ... and placed within the premises of the unit on duty in order to restrict his freedom of movement. Therefore, although he was not detained pursuant to section 35(1) taken in conjunction with section 33(1)(1) of the National Police Act [ Закон за националната полиция ], as a matter of fact Zabchekov was forcibly held in the police station for about three hours and in the course of his stay [there] ... his condition suddenly deteriorated, and he lost consciousness.”", "H. Investigation by the military prosecution and investigation authorities", "65. On 31 January 1996, having received the file on the case, the Regional Military Prosecutor's Office opened an investigation under a new file number (3-VIII/96, prosecutor's file 254/96). The case was assigned to a military investigator ( военен следовател ).", "During the following weeks the military investigator conducted new examinations of the police officers involved, questioned five persons who had spent the afternoon and evening of 28 January 1996 with Mr Zabchekov, and also heard Dr Mihailov and Dr Ivanova.", "66. Two of the police officers, Sergeant Penchev (A) and Sergeant Georgiev (F), mentioned Mr Zabchekov's ethnic origin in their oral evidence to the military investigator.", "A stated that when he had arrived at Beli Lom Street he had seen two persons emerging from the entrance of the building, one of whom had been “a Gypsy with a criminal record – Anguel Zabchekov”.", "In his statement F. referred to the applicant's son as “the Gypsy” (three times), “the arrested” (seven times) and “Zabchekov” (twice).", "67. On 12 March 1996 the investigator conducted examinations of the witnesses Ms I.A., Ms I. M., C and D. His questions related solely to the number of times Mr Zabchekov had fallen to the ground during the chase on Beli Lom Street and the places where this had happened.", "On 18 March 1996 the investigator appointed an expert to analyse the clothes which Mr Zabchekov had been wearing on 28 and 29 January 1996. In his report of 20 March 1996 the expert stated that no traces of shoe soles could be found but explained that microscopic remains from particles from a shoe sole would not normally be left on soft fabric.", "68. On 20 March 1996 the investigator conducted a reconstruction of the events during Mr Zabchekov's arrest in order to clarify the witnesses' evidence. Those taking part were Sergeant Mutafov (C), the young man who had been with him on 28 and 29 January (D), and the two persons who had observed the scene from their balconies, Ms I.A. and Ms I.M. The police officers who had arrived at Beli Lom Street after Mr Zabchekov was arrested by C did not participate in the reconstruction, which was almost exclusively concerned with the events before the arrival of the two police cars. The reconstruction was videotaped.", "69. On 11 April 1996 the applicant submitted to the Varna Military Prosecutor's Office a request for the exhumation of her son's body and for the assignment of a new medical expert, stating that her son had been buried in haste and that exhumation of his body was essential. The applicant suspected that her son's ribs might have been broken. She also submitted to the investigator, Mr Atanasov, two X-ray photographs of her son's head taken several months before his death, to be used for the purpose of establishing whether his skull had been “soft” or “thin”.", "70. On 17 or 18 April 1996 five medical experts were appointed to re-examine the conclusions as regards the causes of Mr Zabchekov's death. One of them, Dr Minchev, had participated in the initial group of experts. The other four were Professor Pavlov, head of the forensic department at the Medical University in Varna, Dr Kiuchukov, from the university's neurosurgery department, and Dr Dokov and Dr Radoinova, senior assistants in the forensic department of the same university. The experts were asked the following questions:", "“1. What injuries did Zabchekov sustain? What was the cause of death?", "2. In what manner were the injuries sustained and by how many blows could they have been caused? Could the injuries have been caused by consecutive falls (in accordance with the witnesses' statements and the findings of the investigation reconstruction as recorded on video), or were they the result of direct blows?", "3. When were these injuries inflicted?", "4. What was Anguel Zabchekov's blood alcohol level at the time of his arrest, at about 12.15 a.m. ?”", "71. On 26 April 1996 the investigator held a confrontation between all the police officers involved. On the same day three additional witnesses were questioned.", "On 23 May 1996 the applicant repeated her request for an exhumation. On 29 May 1996 another witness was questioned.", "On 11 June 1996 Mr Dimitrov, a prosecutor from the Regional Military Prosecutor's Office, sent the applicant a copy of his information note on the proceedings. The note stated, inter alia, that exhumation could be envisaged if this was considered necessary by the five medical experts, who had not yet submitted their opinion.", "72. On 28 June 1996 the five experts delivered their report (“the second report”), which was based on an examination of the material in the investigation file. They had also seen the videotape of the reconstruction of Mr Zabchekov's arrest, which had been recorded on 20 March 1996.", "73. The experts confirmed that Mr Zabchekov's death had been caused by an epidural oedema resulting from a skull fracture. They also stated, inter alia, that the fatal injury could have been inflicted by a kick, a punch or a blow by a blunt object, or also by a fall and a collision against a “flat broad surface” ( широка удряща повърхност ). They noted that the autopsy had not recorded any morphological data to allow the identification of the object which had caused the injuries.", "The second report indicated that the blow which had caused the skull fracture had not been very strong. That conclusion was based on the “particular features of the skull structure (as witnessed by the X-ray photographs enclosed and the thickness as described [in the autopsy report])”.", "74. Contrary to the first medical report, which had stated that the interval between the skull injury and Mr Zabchekov's death had been approximately four to six hours, the report of the five experts concluded:", "“The haematoma ... which caused the death of Zabchekov, had been present for at least ten hours before the time of death. The basis for this conclusion is the appearance of the haematoma (blood clot of dark red colour), which is clearly visible on the photographs attached to the file. Clots of that kind, without the presence of liquid blood, are formed during a period of more than ten hours from the moment when they were caused. During this period the patients' condition is usually characterised by the so-called 'lucid interval' – the time during which they do not display visible warning signs. Their condition gradually deteriorates ... they develop a headache, speech disturbances and problems of coordination of movement, [they] become unstable and sleepy, they stagger, etc., until they fall into a coma.”", "75. The photographs relied on by the experts were taken at the time of the autopsy, which began at 11.30 a.m. on 29 January 1996.", "76. The experts also found, in view of the amount of alcohol found in Mr Zabchekov's blood, that the symptoms resulting from the head injury had been masked by the effects of alcohol.", "77. The report of the five experts also dealt with the other injuries to Mr Zabchekov's body:", "“The haematoma on the right side of the chest is the result of a blow by or against a flat object with a broad hitting surface, which could have taken the form of a kick, a fall and a collision against a larger object and other objects. The general appearance of the bruise corresponds to the imprint of the clothes of the deceased, which indicates that the blow was inflicted through the clothes ... The bruises and injuries to the right side of the forehead, the two wrist joints and the lower lip are the result of the use of hard, blunt and/or sharp-edged objects with a limited hitting surface. The characteristics of the injuries to the two wrist joints make it possible to conclude that they were caused when the handcuffs were put on, in accordance with the available information ...”", "78. On 25 July 1996 the investigator drew up a report proposing to terminate the proceedings.", "79. On 31 July 1996 the Regional Military Prosecutor's Office closed the investigation as there was no connection between the acts of the police and the death of Mr Zabchekov. That conclusion was based on the finding of the second medical report that at least ten hours had passed between the injury and death.", "80. On 6 August 1996 the applicant lodged an appeal with the National Military Prosecutor's Office ( Прокуратура на въоръжените сили ). She contended that the investigation had been incomplete and pointed to the repeated refusal to carry out an exhumation, to the alleged discrepancies between the evidence of different witnesses and to the lack of explanation for certain facts, including all the injuries to Mr Zabchekov's body.", "81. On 18 December 1996 the National Military Prosecutor's Office confirmed the closure of the investigation and refused the applicant's requests. Its decision stated, inter alia :", "“[A]part from the physical force used during the arrest of Zabchekov for attempting to steal from cars, there is no evidence that any violence was used against him by police officers, whether ... inside or outside the ... police station. Furthermore, the firm conclusion of the report of the five experts, who are highly qualified in their field, is that the lethal injury was caused more than ten hours prior to death.”", "82. It was also decided to refer the case back to the Regional Prosecutor's Office in Razgrad, which was competent to deal with the question whether a criminal act had been committed by a person other than a police officer.", "I. Additional investigation by the general prosecution and investigation authorities", "83. On 20 January 1997 the regional prosecutor, Ms Hadzhidimitrova, referred the case to the investigator, Mr Neshev. She noted that the investigation in respect of the police had been closed on the basis of the finding that the fatal injury had been inflicted more than ten hours prior to the death of Mr Zabchekov. Therefore, further evidence needed to be collected as regard the whereabouts and the condition of Mr Zabchekov before 7 p.m. on 28 January 1996.", "84. The additional investigation entailed the examination of the applicant and six other witnesses on 23 January 1997 by Mr Neshev.", "85. On 23 and 24 January 1997 the applicant made further requests for the exhumation of the body and for a fresh forensic examination, claiming that there were inconsistencies in the evidence. That was rejected by the Razgrad Regional Prosecutor's Office on 31 January 1997 as being unnecessary.", "86. The applicant complained to the Chief Public Prosecutor's Office ( Главен прокурор ). She stated, inter alia, that the prosecutors had consistently failed to explain why the police had not taken proper care of Mr Zabchekov following his arrest.", "87. On 17 February 1997 Mr Neshev summoned the applicant (represented by counsel) to allow her to consult the file on the investigation. The applicant made a number of requests and objections concerning shortcomings in the investigation. In particular, she stated that there had been fundamental contradictions between the first and the second medical reports, and that it was clearly impossible for a person suffering from such a grave injury as that found by the autopsy to steal car parts and resist arrest. The applicant again requested the exhumation of the body and the appointment of experts to answer the questions raised in her previous requests.", "88. On 18 February 1997 Mr Neshev drew up a report stating that the additional investigation ordered on 20 January 1997 had not disclosed evidence that Mr Zabchekov had been beaten prior to his arrest. It was therefore proposed to suspend the investigation.", "89. By an order of 4 March 1997 the regional prosecutor, Ms Hadzhidimitrova, suspended the criminal proceedings as all available evidence had been collected and it was not possible to determine the precise circumstances under which the fatal head injury had been inflicted.", "90. The decision noted the findings of the military prosecutors, in particular those concerning the skull fracture, and confirmed them. In respect of the other bodily injuries, the prosecutor stated that they had not placed Mr Zabchekov's life in danger.", "The decision also mentioned that when he had been taken to the police station Mr Zabchekov had been in good health.", "91. On 10 March 1997 the applicant appealed to the Chief Public Prosecutor against the decision to suspend the proceedings. On 20 March 1997 the Chief Public Prosecutor's Office confirmed the suspension of the proceedings.", "J. Other evidence submitted by the parties", "92. The applicant has submitted four colour photographs of the dead body of Mr Zabchekov and a photograph of the jacket which he was wearing before his death. The photographs were taken by journalists on 30 January 1996 at the applicant's home, after the autopsy and the return of the body for burial.", "93. Two of the photographs are of Mr Zabchekov's face. The hair covers half of the forehead. Above and over the left eyebrow can be seen a bluish-purple bruise. The left eyelid is of a bluish colour. A bruise can also be seen on the lips, on the left side of the mouth.", "94. On the other two photographs a purple bruise colour can be seen on Mr Zabchekov's chest, on its right side, partly under the right armpit. Wounds are visible on Mr Zabchekov's right wrist.", "95. On an unspecified date the applicant, acting through the European Roma Rights Centre, a non-governmental organisation based in Budapest, solicited the opinion of Professor Jorgen Thomsen, State Pathologist, Institute of Forensic Medicine, University of Southern Denmark, Odense, a member of the United Nations Standing Team of Forensic Experts. Professor Thomsen gave a written opinion dated 4 February 1999. Professor Thomsen had at his disposal, inter alia, the description of what had allegedly happened in the case and extracts from the autopsy report and the reports of the forensic experts.", "Professor Thomsen stated, inter alia :", "“An epidural haematoma is usually caused by a fall against a hard surface or a strong blow with a blunt object. It is well known that a fall against a hard surface will often leave so-called contre -coup lesions. It is regrettable that the presence or absence of such lesions have not been mentioned. It has been mentioned that the deceased had a thin skull. In my opinion that is not an apologising factor in cases of interpersonal violence, as it is usually not known if a skull is thick or thin and it is inherent in the possible effects of violence that a person may have a thin skull. Together with the epidural haematoma there is usually a fracture (fissure) in the temporal bone and a rupture of the middle meningeal artery. The haemorrhage is thus arterial. It is in the beginning limited by the attachment of the dura to the inside of the bone. There is thus often a lucid interval that may last several hours, but often the interval is not longer than a couple of hours. If the traumatic lesion involves the brain with a concussion or contusions there is usually not a lucid interval.", "I agree with the two forensic reports that the cause of death was the epidural haematoma and that it was caused by one of the types of traumas mentioned. It may well have happened before the victim was arrested, but it can in no way be excluded that he sustained the fatal lesion during his stay in the police centre. I do not agree with the statement that there was a lapse of ten hours from the trauma until death. It was based on the appearance of the blood clot. It is known that the blood after death can take various forms and even after death there is enzymatic biochemical activity that may change the blood in an unpredictable way and in various ways in different locations.", "With reference to the other lesions these are not likely to have been sustained from the same trauma as the epidural haematoma. They are the result of blunt violence such as beating, kicking and/or falls, and may have been sustained during the stay in police detention.", "The marks on the wrists are characteristically the results of handcuffing. Handcuffs will usually not leave marks, but may if they are too tight, if the person is struggling, or if he is dragged by the handcuffs.", "In summary, it cannot be determined if the epidural haematoma was caused by a fall or other types of blunt violence. It may well have been sustained just before or during the stay in police detention. An epidural haematoma is curable if an operation with evacuation of the haematoma is performed soon enough. If admitted to hospital sooner, Mr Zabchekov might have been saved.”", "96. The Government submitted that Mr Zabchekov had a record at the Juvenile Offenders Pedagogic Centre ( Детска педагогическа стая ) and at the police in Razgrad on account of numerous alleged thefts.", "97. A note dated 3 July 1995, issued by the Juvenile Centre and addressed to the police in Razgrad, stated that Mr Zabchekov, who at that time was 16 years old, had a speech defect and was mentally retarded. Another note, dated 18 November 1995, reiterated those findings.", "The Government explained that on 7 November 1995 the applicant had been heard by an investigator in Razgrad in connection with a criminal investigation into thefts allegedly committed by her son, Mr Zabchekov. She had stated, inter alia, that her son had always had a stammer. He had been ill since the age of 3. In particular, he had had moments when he could not breathe and his skin became bluish. His eyes had often been swollen and he had fainted during moments of sudden fear. Mr Zabchekov had seen doctors who had stated that he had problems with his spine. The applicant had mentioned the name of a Dr Miceva who had all the documents concerning the medical examinations carried out in respect of her son.", "98. On 14 December 1995 Mr Zabchekov had been questioned in connection with criminal proceedings concerning thefts. Asked about his health, he had stated that he had been prone to fainting and pain in his head and eyes. On 4 January 1996 an investigator from the District Investigation Service in Razgrad had opened criminal proceedings against Mr Zabchekov and other persons on charges of theft. On 15 January 1996 Mr Zabchekov had been questioned and had stated, inter alia, that he had been treated by Dr Miceva, a psychiatrist, and that he had been taking medication. Mr Zabchekov's lawyer had requested a psychiatric examination, which had been scheduled for 30 January 1996." ]

[ "II. RELEVANT DOMESTIC LAW", "A. National Police Act ( Закон за полицията ), as in force at the relevant time", "99. Section 35(1) of the Act provided as follows:", "“The police authorities shall issue a written order for an arrested person to be taken to the [place of detention].”", "B. Code of Criminal Procedure ( Наказателно-процесуален кодекс )", "100. By virtue of Article 388 of the Code, the military courts hear criminal cases in which the accused is, for example, a police officer. Where a case would fall within the competence of the military courts, the preliminary investigation is handled by military investigators and prosecutors.", "101. Article 362 § 1 (4) taken in conjunction with Article 359 provides that, in the event of a judgment of the European Court of Human Rights finding a violation of the Convention “of significant importance” to a criminal case that has ended by virtue of a judicial decision, the prosecuting authorities shall request the reopening of the case by the competent court.", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION", "102. The applicant alleged that her son had been ill-treated and had died as a result of injuries inflicted by police officers, that he had not been provided with timely medical treatment while in custody and that the State authorities had failed to undertake a thorough and effective investigation.", "Article 2 of the Convention provides as follows:", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "A. Whether Mr Zabchekov died as a result of ill-treatment while in police custody", "1. The parties' submissions", "(a) The applicant", "103. The applicant submitted that the Government's explanation, which was based on two main arguments – that the fatal skull injury had been sustained long before Mr Zabchekov's arrest and that the remaining injuries on his body had been received during the chase – was implausible as it did not accord with the evidence.", "104. As regards the skull injury, the applicant asserted that the conclusions of the second forensic report had been highly suspect as they had deviated from the findings of the first forensic report without any explanation. The authorities had been quick to rely on the second report, ignoring the contradictions. The second report's conclusion as to the timing of the fatal injury had been based only on the shape of the blood clot as seen on photographic images taken almost six hours after the time of death.", "The suggestion that the skull injury had been inflicted ten hours before Mr Zabchekov's death, at about 6.45 p.m. on 28 January 1996, was, in the applicant's submission, incompatible with the evidence and highly unrealistic. The occurrence of an injury serious enough to eventually cause death could not have gone completely unnoticed by so many persons who had talked to Mr Zabchekov at length and observed him. Furthermore, the Government had not offered any serious evidence in support of their implied theory that Mr Zabchekov's alleged “permanent, chronic, neurotic condition” had increased the chances that the fatal injury had been caused by “falling on a ... broad, even surface”.", "The Government's explanation of the other injuries found on Mr Zabchekov's body – on his chest, face and right wrist – was clearly implausible in the applicant's view. Such injuries could not be inflicted by falling to the ground while running or by the normal use of handcuffs. Indeed, the origin of those injuries had never been investigated and the Government had developed their own arbitrary theory for the purposes of the present case. In reality, it was obvious that the injuries were the result of ill-treatment and that, in the absence of any evidence to the contrary, they must have been inflicted at the same time as the fatal skull injury.", "105. The applicant also considered it particularly striking that no explanation had been provided concerning the suspect behaviour of the police officers and their conspicuous attempt to forge the detention register.", "(b) The Government", "106. The Government, referring to the second forensic report, stated that the fatal injury had been inflicted more than ten hours prior to Mr Zabchekov's death and, therefore, long before his arrest.", "It was undisputed that Mr Zabchekov had consumed a large quantity of alcohol before his arrest. He had been drunk and staggering. Furthermore, there was clear evidence that he had fallen several times while running.", "In the Government's view the evidence concerning his behaviour at the time of his arrest and detention – which corresponded to the typical symptoms of a “lucid interval” after a skull fracture – confirmed the medical experts' conclusions about the timing of the fatal injury.", "107. The Government pointed out that the statements of the witnesses relating to the whereabouts of Mr Zabchekov prior to his arrest contained contradictions.", "Furthermore, on several occasions in 1995 the applicant had stated that her son was ill and – when younger – had sometimes lost consciousness and suffocated. Mr Zabchekov himself had confirmed in 1995 that he had suffered from headaches and fainting. On that basis, the Government concluded that the experts' finding that Mr Zabchekov might have received the fatal injury by falling on a broad hard surface was plausible.", "108. The Government stressed that there was no evidence of any ill-treatment by the police. In their view, the injuries to Mr Zabchekov's chest and face must have been the result of his falling on the ground, and those to his wrists must have been caused by the normal use of handcuffs.", "2. The Court's assessment", "(a) General principles", "109. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47; Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000-VII; and Velikova v. Bulgaria, no. 41488/98, ECHR 2000-VI).", "110. In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivations of life to the most careful scrutiny, taking into consideration all relevant circumstances.", "Persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V, and Salman and Velikova, cited above).", "111. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman, cited above, § 100).", "(b) Application of those principles to the present case", "112. The Court observes that Mr Zabchekov died after being detained for several hours at the Razgrad police station, where he had been brought after being briefly chased by an off-duty police officer.", "It is incumbent on the Government, therefore, to provide a plausible explanation for Mr Zabchekov's death.", "113. The Government's explanation is that Mr Zabchekov's death could not possibly have been the result of police ill-treatment as the second forensic report had concluded that the fatal injury, a skull fracture, had been inflicted at least ten hours prior to the time of death. It followed that the skull fracture had occurred before 7 p.m. on 28 January 1996, whereas Mr Zabchekov's encounter with the police occurred about five hours later.", "114. The Court observes that the conclusion of the second report as to the time at which the injury occurred was based on a visual examination of photographs of the blood clot taken six hours after Mr Zabchekov's death. The experts did not even mention why they considered that no changes had occurred in the blood clot after the boy's death. According to the medical opinion submitted by the applicant – uncontested by the Government – such changes did occur and had to be taken into account.", "Furthermore, the second forensic report, which relied solely on documentary material, departed in significant respects from the conclusions of the first report without stating why that report's findings concerning the strength of the blow and the time of the skull fracture had been incorrect. The first forensic report, in contrast, had been based on a direct observation of the body (see paragraphs 53-59, 70 and 72-77 above).", "The Court finds that all of the above significantly reduces the reliability of the second report's conclusions.", "115. It is true that certain facts in the present case cannot be unequivocally explained: Mr Zabchekov's reported staggering and mumbling at the time of his arrest may be seen as an indication that he had already been injured at that time, but it may also have been the result of his apparently high level of alcohol intoxication (see paragraphs 11, 22, 28, 59, 60, 74, 76 and 95 above).", "116. However, if Mr Zabchekov was indeed injured before 7 p.m. on 28 January 1996, as was suggested by the conclusions of the second medical report, that would mean that he went out with friends, visited a bar and then decided to steal car parts while suffering from a skull fracture. That may appear unlikely even if the so-called “lucid interval” between the injury and the death is taken into account. In particular, it is not disputed that Mr Zabchekov was able to run when C attempted to apprehend him and was walking normally when brought to the police station (see paragraphs 12-14, 16 and 29 above).", "117. The Court notes that the first forensic report considered that the skull injury had most likely been inflicted between four and six hours prior to Mr Zabchekov's death and, therefore, possibly at a time when he was in police custody, either before or after he was taken to the police station (see paragraph 59 above).", "Furthermore, there were a number of other injuries to Mr Zabchekov's body which could have been the result of the same events that caused the skull fracture (see paragraphs 55, 56, 58, 77 and 92-94 above).", "118. The Government stated that Mr Zabchekov might have sustained his injuries by falling to the ground – before he encountered the police or during the chase – as he was drunk and had a history of health problems. The traces on his wrists were allegedly caused by the normal use of handcuffs.", "119. That supposition is not, however, supported by forensic evidence, as the presence or absence of “ contre -coup lesions” characteristic of falls was not recorded by the autopsy (see paragraphs 73 and 95 above).", "Furthermore, the Court considers it significant that none of the witnesses who were in contact with the applicant's son until he was taken to the police station reported any complaint of an ailment on his part.", "As regards the use of handcuffs, according to the medical opinion submitted by the applicant, handcuffs may leave marks if they are too tight or the person is struggling or is dragged. The autopsy found a very slight mark on Mr Zabchekov's left hand and severe bruising on his right hand (see paragraphs 55, 56, 58 and 95 above). It was also reported that at some point he was handcuffed to a tree. It seems unlikely, therefore, that the injury to his right wrist was the result of normal use of tight handcuffs. The other two possible explanations – that Mr Zabchekov was struggling or was dragged – may suggest that he was ill-treated.", "Finally, the Court does not find the information about Mr Zabchekov's alleged illness reliable or particularly pertinent. It was based on statements made by him and by his mother in the context of questioning on criminal charges and, in any event, cannot lead to any reasonable conclusion as regards the skull fracture or the other injuries (see paragraphs 96-98 above).", "The Government's proposed conclusion that Mr Zabchekov might have injured himself by falling is thus improbable when examined in the light of all the surrounding facts.", "120. In assessing the evidence in the present case, the Court, moreover, attaches significant weight to the information that the police officers behaved in a suspect manner and to the fact that the authorities accepted the credibility of their evidence despite serious indications calling for caution.", "Examples of the police's suspect behaviour are: between 3 a.m. and 5 a.m. on 29 January 1996, when they delayed contact between Mr Zabchekov and a doctor and possibly attempted to choose which doctor saw him (see paragraphs 32-40 above); their apparently false statement, in answer to a question by Dr Mihailov, that Mr Zabchekov had been taken to the police station in the same condition as that in which the doctor had seen him at about 5 a.m. (see paragraph 39 above); and that the detention records were tampered with (see paragraphs 41-46 above) and that Mr Zabchekov was registered post factum as an “unidentified person” although he had been well known to the police officers as a suspect on theft charges and had been recognised by them at the very moment of their encounter (see paragraphs 25, 42 and 96-98 above).", "These facts were important indications that required thorough investigation; such an investigation was not undertaken.", "121. Having regard to all the relevant circumstances, the Court thus finds implausible the Government's explanation of Mr Zabchekov's death, which was based on the conclusion of the second forensic report as to the timing of the injury and a supposition that the boy might have injured himself by falling to the ground. The Government have not offered any other explanation.", "122. Accordingly, there has been a violation of Article 2 of the Convention.", "B. The alleged failure to provide timely medical care", "1. The parties' submissions", "123. The applicant alleged that, although the police officers had seen the boy shivering and shaking, they had considerably delayed medical intervention through a series of suspect acts between 3 a.m. and 5 a.m. In the applicant's view, the most likely explanation was that there had been an attempt to avoid contact between Mr Zabchekov and an independent doctor who might have revealed evidence of ill-treatment. Alternatively, there had been a reckless disregard for the well-being of a detainee. In either case the delay had been fatal.", "124. The Government maintained that the police could not be held responsible for not having realised that Mr Zabchekov had been in need of urgent medical attention. When the police officers had first seen him it had been dark. Furthermore, he had been drunk, there had been dirt all over his body and his hair had covered the bruise over his left eyebrow. Mr Zabchekov's condition had been interpreted as symptomatic of the effects of alcohol. He had never complained of an ailment. The fact that no signs of any major problems had been apparent during the lucid interval had been confirmed by the medical experts.", "2. The Court's assessment", "125. The Court, referring to its findings as regards the suspect conduct of the police (see paragraph 120 above), observes that they delayed the provision of medical assistance to Mr Zabchekov and that that contributed in a decisive manner to the fatal outcome.", "126. The Government's position is that the police officers, not being medical professionals, could not be criticised for having failed to detect that there was a medical emergency.", "127. That argument is, however, irrelevant, as it is not disputed that at a certain point after 3 a.m. the police officers realised that Mr Zabchekov's condition was deteriorating. Even then, instead of calling for an ambulance, they contacted their colleagues who had arrested the boy. Those officers, who were on patrol duty, saw fit to abandon their patrolling tasks and drive back to the police station to verify the situation. Having seen Mr Zabchekov's condition, they took the time to drive to the hospital and then return, followed by an ambulance, instead of calling for one (see paragraphs 32-40 above).", "128. It is particularly significant, furthermore, that the case file does not contain any trace of criticism or disapproval of that manner of dealing with a detainee's medical problem.", "129. The first medical report and the expert whose opinion was submitted by the applicant found that the delay in providing medical assistance had been fatal (see paragraphs 59 and 95 above).", "130. The Court thus finds that the behaviour of the police officers between 3 a.m. and 5 a.m. on 29 January 1996 and the lack of any reaction by the authorities constituted a violation of the State's obligation to protect the lives of persons in custody.", "131. There has been therefore a violation of Article 2 § 1 of the Convention in that respect.", "C. The alleged ineffectiveness of the investigation", "1. The parties' submissions", "132. The applicant considered that the investigation into the death of her son had been inadequate as the authorities had failed to investigate, inter alia : the post hoc doctoring of the detention records; the non-fatal injuries; the police officers' strange behaviour between 3 a.m. and 5 a.m.; the reason why the two doctors had quarrelled at about 5 a.m.; and the fact that the first information the applicant's family had received about Mr Zabchekov's death had failed to mention that the boy had been detained.", "133. The applicant further submitted that because of the traditional ties between prosecutors, investigators and the police and the absence, at the material time, of judicial review in respect of decisions not to prosecute, the decision-making authorities responsible for investigating ill-treatment by the police were not sufficiently independent and impartial.", "Furthermore, this allegedly reflected a broader pattern that had been noted by international organisations. The applicant referred to the Report of the Special Rapporteur on Torture to the United Nations Commission on Human Rights (Document E/CN.4/1997/7 of 10 January 1997), which stated at p. 9:", "“The Special Rapporteur is concerned by the frequency of allegations of torture or ill-treatment, sometimes followed by death, of persons in police custody [in Bulgaria ]. The rarity of any disciplinary measures and of investigations leading to criminal prosecutions, as well as the virtual absence of successful prosecutions of those responsible, can only lead to a climate of impunity. He believes the Government should establish measures to ensure the independent monitoring, on a sustained basis, of the arrest, detention, and interrogation practices of the relevant law enforcement agencies.”", "134. The applicant lastly alleged that she had on several occasions been misinformed by the authorities about the course of the investigation and its findings and had not been given full access to the case file before February 1997, more than a year after her son's death.", "135. The Government asserted that the investigation had been prompt and thorough, referring to the numerous interrogations, expert reports and other investigative measures. The applicant had been provided with an opportunity to consult the case file and to submit appeals and requests for further investigation. Her request for an exhumation had rightly been refused as it had been clearly established that Mr Zabchekov's ribs had been intact.", "2. The Court's assessment", "(a) General principles", "136. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see McCann and Others, cited above, p. 49, §§ 161-63; Kaya v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 329, § 105; and Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV).", "137. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII).", "138. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, pp. 1778-79, §§ 83-84, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident).", "139. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, concerning autopsies, Salman, cited above, § 106; concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).", "Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard.", "140. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities' adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82, where the father of the victim was not informed of the decisions not to prosecute; Oğur, cited above, § 92, where the family of the victim had no access to the investigation and court documents; and Gül, cited above, § 93; for a full summary of the relevant case-law see McKerr v. the United Kingdom, no. 28883/95, §§ 111-15, ECHR 2001-III).", "(b) Application of those principles to the present case", "141. The Court agrees with the Government that numerous acts of investigation were undertaken in the present case. The investigation commenced promptly and the authorities worked actively on it. An autopsy was carried out, most of the witnesses were questioned repeatedly, two confrontations and a reconstruction of the events were organised and other relevant evidence was collected and analysed.", "142. The Court notes, however, that the failure of the autopsy to record morphological data and the absence or presence of “ contre -coup lesions” made it impossible to establish what object might have caused the skull fracture.", "It is highly significant, furthermore, that the police officers were never asked to explain why the detention register had been forged, why they had not called for an ambulance right away or why they had given apparently false information to Dr Mihailov. These were crucial questions which obviously had to be raised in examinations and confrontations.", "The reconstruction of the events conducted on 20 March 1996 was, for reasons that are unclear, exclusively concerned with the number of times and the places where Mr Zabchekov had fallen to the ground when he had been trying to escape and ignored the events that took place at the police station, the moments between the boy's arrest and his arrival at the police station and the times when he had been lying on the ground, handcuffed to a tree or was alone with Sergeant Mutafov (C) and his friend D (see paragraphs 21, 26, 29-40 and 68 above).", "Furthermore, there is no record of any timely visit of the investigator to the scene of Mr Zabchekov's arrest in Beli Lom Street. The site was visited at about 11 a.m. on 29 January 1996 by a police officer from the same police station as the implicated officers.", "Finally, the investigation concentrated on the origin and timing of the skull injury and paid scant attention to the other traces left on the boy's body.", "The Government have not explained these omissions.", "143. The Court also refers to its findings above that the testimony of the police officers was considered fully credible despite their suspect behaviour and that, notwithstanding the obvious contradiction between the two medical reports, the authorities accepted the conclusions of the second report without seeking to clarify the discrepancies (see paragraph 120 above). Indeed, the decisions of the prosecution authorities to put an end to the investigation relied exclusively on the opinion in the second medical report about the timing of the injury, an opinion that had been based on a questionable analysis (see paragraphs 79, 81, 84 and 88-90 above).", "144. The Court finds, therefore, that the investigation lacked the requisite objectivity and thoroughness, a fact which decisively undermined its ability to establish the cause of Mr Zabchekov's death and the identity of the persons responsible. Its effectiveness cannot, therefore, be gauged on the basis of the number of reports made, witnesses questioned or other investigative measures taken.", "145. The applicant alleged, in addition, that the failings of the investigation in her case were the result of a general problem of lack of independence, impartiality and public accountability on the part of the authorities handling investigations of police ill-treatment.", "In these particular circumstances, having already found that the investigation into the death of the applicant's son was not sufficiently objective and thorough, the Court does not need to rule on these additional aspects of her complaint.", "146. The Court finds that there has been a violation of the respondent State's obligation under Article 2 § 1 of the Convention to conduct an effective investigation into the death of Mr Zabchekov.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "147. The applicant complained that her son had been ill-treated before his death. She relied on Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "148. The parties' submissions are summarised in paragraphs 103-08 above.", "149. The Court found above that the Government had not provided a plausible explanation for the injuries to Mr Zabchekov's body.", "Those injuries were indicative of inhuman treatment beyond the threshold of severity required by Article 3 of the Convention.", "There has therefore been a violation of that provision.", "150. The Court does not deem it necessary to make a separate finding under Article 3 in respect of the deficiencies in the investigation (see Mahmut Kaya v. Turkey, no. 22535/93, § 120, ECHR 2000-III), having already dealt with that question under Article 2 of the Convention (see paragraphs 132-46 above).", "III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION", "151. Relying on Article 5 of the Convention, the applicant alleged that the detention of her son during the night of 28 to 29 January 1996 had been unlawful as there had been no lawful detention order and it had not been properly recorded.", "Article 5 of the Convention, in its relevant parts, provides as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;", "...”", "152. The applicant stated that it was absurd to consider – as the Government did – that the statutory 24-hour time-limit for police detention ran from the moment when the arrested person's identity was established. No such rule existed under Bulgarian law. Any detention without a written order was in violation of section 35 of the National Police Act. Furthermore, in the present case the police officers recognised Mr Zabchekov right away and addressed him by name.", "153. The Government submitted that at the time he was taken to the police station Mr Zabchekov had not been a “detained person” within the meaning of section 35 of the National Police Act as his identity had not been known. It had been necessary to await his sobering up to allow his identification and decide whether detention was necessary. Therefore, a written order for his detention was not required. Such an order could not be issued in respect of a person whose identity was unknown.", "The Government further stated that the material legal conditions for a lawful detention had existed in any event: Mr Zabchekov had been apprehended while trying to steal and had been taken to the police station for identification.", "154. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. They require in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect the individual against arbitrariness. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see, among other authorities, Grauslys v. Lithuania, no. 36743/97, § 39, 10 October 2000).", "The unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1185-86, § 125, and Çakıcı, cited above, §§ 104-05).", "155. In the present case it is not disputed that Mr Zabchekov's detention was not based on a written order as required by section 35 of the National Police Act. Contrary to the Government's view, that provision cannot be reasonably interpreted as permitting confinement without a lawful order where there are doubts as to the identity of the detainee: such an interpretation runs contrary to the elementary guarantees of Article 5 of the Convention as it would mean a blanket authorisation for unacknowledged detentions. Furthermore, in the present case the police identified Mr Zabchekov at the very moment of his arrest.", "It follows that the applicant's detention was unlawful.", "156. The applicant stated that, in an effort to conceal the very fact that her son had been detained, the first information to the family about his death had omitted any reference to his confinement (see paragraphs 49 and 61 above).", "The Court observes that Mr Zabchekov's deprivation of liberty was not recorded initially and that the register at the police station was later forged. The suspect behaviour of the police officers between 3 a.m. and 5 a.m. on 29 January 1996 is another element which may lead to a conclusion that there was an attempt to conceal the fact that the applicant's son had been detained (see paragraphs 30, 32-40 and 41-46 above).", "As that attempt was in the event unsuccessful, the Court will not deal with the question whether an issue of State responsibility for an unacknowledged detention may arise.", "157. The lack of a written order and of a proper record of Mr Zabchekov's detention is sufficient for the Court to find that his confinement for several hours on 29 January 1996 was in breach of domestic law and contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty.", "There has, therefore, been a violation of Article 5 § 1 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "158. The applicant complained under Article 13 of the Convention of the alleged lack of an effective remedy in respect of the violations of Articles 2 and 3. Article 13 of the Convention provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "159. The applicant stated that the criminal investigation had not been effective, referring to her complaints under Articles 2 and 3 of the Convention. She added that at the relevant time there had been no judicial remedy against a prosecutor's decision to discontinue criminal proceedings.", "160. The Government referred to their submissions under Articles 2 and 3 and stated that the applicant could have applied to join the criminal investigation into her son's death as a private prosecutor or a civil plaintiff.", "161. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law.", "Where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. Furthermore, in appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see, as a recent authority, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §107, ECHR 2001-V).", "In cases of suspicious deaths, given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure (see Kaya, cited above, p. 330, § 107; Ergi, cited above, p. 1782, § 98; Salman, cited above, § 123; and Velikova, cited above, § 89).", "162. The Court finds that the applicant had an arguable claim under Articles 2 and 3 of the Convention in respect of her son's death and ill-treatment and that, for the purposes of Article 13, she should accordingly have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation.", "However, in circumstances where – as here and as in Velikova, cited above – the criminal investigation into the suspicious death was ineffective as it lacked sufficient objectivity and thoroughness (see paragraphs 141-46 above), and the effectiveness of any other remedy that may have existed, including the remedy suggested by the Government (the possibility of the applicant's joining the criminal proceedings as a civil party) was consequently undermined, the Court finds that the State has failed in its obligation under Article 13 of the Convention.", "There has therefore been a violation of that Article.", "V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "163. The applicant complained under Article 14 of the Convention taken in conjunction with Articles 2, 3 and 13 that the police officers' and the investigating authorities' perception of her son as a Rom/Gypsy was a decisive factor in their attitude and acts.", "Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "164. The applicant considered it striking that some of the police officers had been unable to refrain from referring to Mr Zabchekov as “the Gypsy”, even in their official statements. She considered that the reference to her son's origin and the acts of the police and the investigation authorities had to be seen against the broader context of systematic racism and hostility which law-enforcement bodies in Bulgaria had repeatedly displayed. This attitude had been widely documented by intergovernmental and human rights organisations.", "165. The Government submitted that there was no evidence of any racially motivated act on the part of the authorities. The fact that some statements referred to Mr Zabchekov as “the Gypsy” did not constitute such evidence.", "166. The Court reiterates that proof “beyond reasonable doubt” may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see paragraph 111 above and the case-law cited there).", "The Court must therefore assess all the relevant facts, including any inferences that may be drawn from the general information adduced by the applicant about the alleged existence of discriminatory attitudes.", "167. It recalls that in Velikova it examined a very similar complaint in paragraph 94 of that judgment and held:", "“The Court observes that the applicant's complaint under Article 14 is grounded on a number of serious arguments. It also notes that the respondent State failed to provide a plausible explanation as to the circumstances of Mr Tsonchev's death and as to the reasons why the investigation omitted certain fundamental and indispensable steps which could have shed light on the events ...", "The Court recalls, however, that the standard of proof required under the Convention is 'proof beyond reasonable doubt'. The material before it does not enable the Court to conclude beyond reasonable doubt that Mr Tsonchev's killing and the lack of a meaningful investigation into it were motivated by racial prejudice, as claimed by the applicant.", "It follows that no violation of Article 14 has been established.”", "168. The Court finds that in the present case the applicant's complaints are likewise based on serious arguments. It is unable, however, to reach the conclusion that proof beyond reasonable doubt has been established.", "There has therefore been no violation of Article 14 of the Convention.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "169. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "170. The applicant claimed 19,050 euros (EUR) for non-pecuniary damage, a sum comprising EUR 15,250 in respect of the pain and suffering caused by the violation of her son's rights under the Convention and EUR 3,800 in respect of the distress she endured because of the ill-treatment and death of her son and the inadequacy of the authorities' reaction.", "171. The Government objected that since Article 362 § 1 (4) of the Bulgarian Code of Criminal Procedure provided for the possibility of reopening criminal proceedings in cases where the European Court of Human Rights had found a violation of the Convention the applicant should, if the Court found a violation in the present case, submit a civil claim for damages once the criminal proceedings were reopened.", "Alternatively, the Government maintained that the claim was excessive, regard being had to the economic situation in the country. The amount claimed was allegedly 371 times the minimum monthly wage. In the Government's view, the comparison with Turkish cases proposed by the applicant was incorrect as in Turkey the minimum monthly wage was 50% higher than in Bulgaria.", "Finally, the Government warned against the dangers of excessive awards being made by the Court.", "172. The Court notes that the provision of the Code of Criminal Procedure referred to by the Government concerns the reopening of criminal proceedings which were ended by a judicial decision, whereas the investigation in the applicant's case was terminated by a decision of the prosecuting authorities. It is therefore unclear whether the Code of Criminal Procedure requires the reopening of the investigation after the Court's findings in the present case.", "Furthermore, Article 41 of the Convention does not require applicants to exhaust domestic remedies a second time in order to obtain just satisfaction if they have already done so in vain in respect of their substantive complaints. The wording of that provision – where it refers to the possibility of reparation under domestic law – establishes a rule going to the merits of the just satisfaction issue (see De Wilde, Ooms and Versyp v. Belgium (Article 50), judgment of 10 March 1972, Series A no. 14, pp. 8-9, § 16).", "In this connection, the Court considers that the hypothetical possibility that the investigation may resume, many years after the death of the applicant's son in police custody and after the first ineffective investigation, and that the applicant may then have the opportunity to bring a civil claim, which would only be successful if the fresh investigation produced results, cannot reasonably be interpreted as restitutio in integrum under domestic law.", "173. The Court, having regard to its judgments in similar cases (see Velikova, cited above) and to the fact that the present case concerns the death of a 17-year-old boy in police custody, awards the claim for non-pecuniary damage in full.", "B. Costs and expenses", "174. The applicant claimed 3,800 United States dollars (“USD”) for 95 hours of legal work at an hourly rate of USD 40. She submitted a copy of a contract between her and her lawyer and a time-sheet.", "175. The Government considered that the contingency-fee agreement between the applicant and her lawyer was “absurd” and that the rate of USD 40 per hour was excessive and even immoral, as lawyers were under an obligation to help people of limited financial resources.", "176. The Court reiterates that only legal costs and expenses which are found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II).", "It further notes that the Government have not disputed the time-sheet presented by the applicant's lawyer. The Court does not find any indication that the number of hours claimed exceeds the legal work which was actually done and which was necessary to be done for the representation of the applicant.", "As to the hourly rate of USD 40, it has not been claimed that this is a rate higher than the rates charged, for example, by the leading law firms in Bulgaria.", "Converting into euros the sum claimed and deducting the amount of EUR 762.25 (5,000 French francs) paid in legal aid by the Council of Europe, the Court awards the applicant EUR 3,500 in respect of costs and expenses.", "C. Default interest", "177. According to the information available to the Court, the statutory rate of interest in Bulgaria applicable to claims expressed in foreign convertible currency at the date of adoption of the present judgment is 13.65% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. At approximately 2 a.m. on 6 June 1993 Mr Stefanov died after having fallen the previous day from the window of room 36 on the third floor of the police station in the town of Kazanluk. Numerous injuries were found on his body. The ensuing investigation concluded that he had voluntarily jumped out of the window of the room where he had been brought for questioning, and that all his injuries had been the result of his fall. The applicants contested these conclusions.", "A. The events of 4 and 5 June 1993", "9. At an unknown time on 4 June 1993 Mr Stefanov, then aged twenty ‑ three, was arrested by the police in the town of Muglizh. Another person, Mr D.O., also of Roma ethnic origin, was likewise taken into custody. According to a subsequent statement of Mr D.O., he had turned himself in, whereas according to a statement of lieutenant I.C., a police officer involved in these events (see paragraph 10 below), he had been arrested. Apparently Mr Stefanov and Mr D.O. were suspected of numerous thefts and burglaries committed in complicity. The two were brought to the Kazanluk police station either later that evening or the next morning. The applicants submitted that Mr Stefanov had been in good health at the time of his arrest. The Government did not contest this assertion.", "10. The events of the next morning, as described hereafter, are only known from the statements of lieutenant I.C. and chief sergeant H.B., the two police officers who participated in the events, of Mr D.O., and partly from the statement of chief sergeant B.B., an officer guarding the cell block of the police station. Apparently the only eyewitnesses to what happened in room 36, from whose window Mr Stefanov fell to the ground, were lieutenant I.C., chief sergeant H.B. and Mr D.O.", "11. Lieutenant I.C. arrived at the Kazanluk police station at approximately 10 a.m. on 5 June 1993 and first proceeded to question Mr D.O. about the thefts and burglaries allegedly committed by him and Mr Stefanov.", "12. The questioning took place in lieutenant I.C. ’ s office – room 36 on the third floor of the police station – an east ‑ facing room measuring 5 by 2.8 m.. It had two two ‑ wing windows, overlooking the backyard, with sills 96 cm above the floor. It seems that the south window was opened. In the middle of the room there were two desks, adjacent to each other.", "13. In the back yard, beneath the room ’ s windows, 70 cm south of the one which was open, there was a shed for motorcycles, with a 1.95 meter high ceiling, covered with an iron sheet roof. Beside the shed there was an inspection tunnel for automobiles, leading to an underground garage. The inspection tunnel had a concrete edge. The room ’ s windows stood at 9.6 m above the ground, the distance between the windows and the concrete edge was 7.9 m, and that between the windows and the iron sheet roof – 5.9 m.", "14. After questioning Mr D.O., lieutenant I.C. sent him back to the cell block on the first floor, and brought Mr Stefanov up for questioning. During the questioning Mr Stefanov was seated in a chair behind the south desk in room 36. Lieutenant I.C. was sitting opposite him, behind the north desk. Throughout the questioning Mr Stefanov was handcuffed. It is not clear whether his hands were secured behind his back or in front of him.", "15. According to the statements made later by lieutenant I.C., sergeant H.B. and Mr D.O., during the questioning the lieutenant established discrepancies between the versions of Mr Stefanov and Mr D.O about their participation in the alleged thefts. At that point, at approximately 11 a.m., the lieutenant called sergeant H.B. and ordered him to bring Mr D.O. up from the cell block in order to be able to confront the two. Sergeant H.B. took Mr D.O. and brought him in front of room 36. Sergeant H.B. and Mr D.O. stood a little south of the room ’ s door, so that Mr D.O. and Mr Stefanov could not establish eye contact. Lieutenant I.C. started questioning Mr Stefanov and Mr D.O., to compare their answers. Apparently their versions differed and an argument erupted between the two, as they were accusing each other of being the mastermind of the alleged thefts.", "16. Then Mr D.O. indicated with his head to lieutenant I.C. that he wanted to tell him something without Mr Stefanov hearing it. The lieutenant stood up from his chair, approached the half ‑ open door and stood at the doorsill. At that moment Mr Stefanov, still handcuffed, bolted from his chair, made towards the open window and climbed on the window sill by stepping on a chair placed under the window. Chief sergeant H.B. shouted : “This one is going to run”. Lieutenant I.C. turned around and saw Mr Stefanov in the window frame, one leg out in the air and the other leg inside the room. The lieutenant shouted : “Don ’ t jump!”, but Mr Stefanov threw his other leg out of the window and jumped. The lieutenant rushed towards the window.", "17. There are inconsistencies in the lieutenant ’ s statements as to whether he saw Mr Stefanov falling, or only saw him after he had already hit the ground. In his report dated 11 June 1993 the lieutenant stated that he had only seen Mr Stefanov ’ s body supine on the ground. However, when questioned about the incident on 20 June 1994, the lieutenant maintained that when he had rushed to the window, he had been able to see Mr Stefanov ’ s fall, and had seen his body hit the iron sheet roof of the shed beneath the window before rolling off and onto the ground. When questioned for a second time on 21 July 1997, the lieutenant stated that he could not recall exactly the phases of Mr Stefanov ’ s fall and could not tell whether Mr Stefanov had first hit the roof of the motorcycle shed, as he did not remember whether he had gone to the window immediately. He explained that his memories had faded because the events had taken place a long time before and had unfolded very quickly (see paragraphs 34, 36 and 56 below).", "18. There are also inconsistencies in Mr D.O. ’ s statements as to whether he saw Mr Stefanov ’ s fall at all. When first questioned about the incident on 8 June 1993, he stated that he had not directly seen Mr Stefanov jump. During his second questioning on 13 December 1993 Mr D.O. maintained that he had seen Mr Stefanov standing up with his handcuffs on, moving towards the window and jumping. However, he did not state that he had seen Mr Stefanov ’ s fall, but had only seen him supine on the ground.", "19. Chief sergeant H.B. rushed down the stairs to the back yard, where he found Mr Stefanov lying unconscious, half on his back, half on his right side, on an iron grill in front of the garage. His handcuffs had broken, he was bleeding and breathing heavily. Chief sergeant H.B. poured water on him to try to revive him. An ambulance was called shortly afterwards and Mr Stefanov was taken to the regional hospital in Kazanluk, where he died at approximately 2 a.m. the following morning (see paragraph 26 below).", "B. The investigation into the events of 4 and 5 June 1993", "20. Having been notified about the incident at 12.10 p.m., investigator G. S. of the District Investigation Service in Kazanluk inspected the scene of the incident. Starting at 1.15 p.m., he first inspected the back yard of the police station, where Mr Stefanov had fallen to the ground, and then room 36. The minutes of the inspection state that the site of the incident had “not been preserved – the injured person having been removed ”. The minutes describe the ground beneath the windows of room 36 as covered partly with an iron grill, the remainder being a concrete surface. Two bloodstains are noted : one on the iron grill, and one under it. The bloodstain under the grill measured 5 to 6 cm. During the inspection of room 36 a chair was found just beside the window and a piece of plaster 5 cm long was found under the window frame.", "21. The same day, while Mr Stefanov was still alive but in a coma, colonel P. , prosecutor at the Plovdiv Military Regional Prosecutor ’ s Office, ordered that he be examined by Dr E. B., medical doctor at the forensic medicine ward of the Stara Zagora regional hospital.", "22. At 7 p.m. on 5 June 1993 Dr E. B. examined Mr Stefanov in the presence of Dr K. , a neurosurgeon from the Kazanluk regional hospital. He found that Mr Stefanov was in a coma and could not communicate. He recorded that the “ on ‑ duty police officer ” had told him that Mr Stefanov had jumped from the window of a room on the third floor of the police station, that he had fallen on an iron sheet roof, and then on the ground in front of the underground garage of the station, on an iron grill.", "23. He noted the following injuries on Mr Stefanov ’ s body:", "“The lids of the right eye are suffused and are bluish-violet in colour. An abrasion with underlying surface, measuring 6 by 6 cm, was found in the area of the right cheekbone. An arch-shaped wound with uneven and suffused edges 2 cm long, was found on the outer edge of the right eye. Two slit-shaped parallel violet suffusions, 1 cm wide and 8 cm long, are visible on the back of the right shoulder. The distance between them is 3.5 cm. At the middle of the thorax one can observe a slanted elongated violet suffusion, measuring 4 by 1 cm. A similar suffusion, measuring 3 to 2 cm, was found on the left buttock. The right upper limb is immobilised with a plaster dressing. Three oval abrasions with underlying surface, the biggest measuring 1 by 1 cm, were found on the lateral side of the right knee. The skin on the lateral side of the right sole is suffused and bluish-violet in colour. A spotted suffusion, measuring 8 by 3 cm, was found on the inner side of the left sole. An underlying abrasion, measuring 6 to 4 cm, is visible on the lateral side of the right calf. A superficial slit-shaped wound with uneven edges and length 3 cm was found on the left parietal-temporal area.”", "24. Dr E. B. concluded that the injuries described could have been sustained in a two ‑ stage fall.", "25. The laboratory tests detected no traces of alcohol in Mr Stefanov ’ s blood or urine.", "26. Mr Stefanov died at approximately 2 a.m. the following morning.", "27. On the following day, 6 June 1993, Dr E. B. performed an autopsy on Mr Stefanov ’ s dead body. The doctor described his findings in detail in his report. He noted the following:", "“EXTERNAL INSPECTION[:]", "... The eyelids are closed. The lids of the right eye are suffused and bluish-violet in colour. An arch-shaped wound with uneven and suffused edges, 2 cm long, is visible in the outer eye angle of the right eye, on the orbital edge. An abraded spot at the level of the skin, covered with reddish scab, 6 by 6 cm, is visible in the area of the right cheekbone. ... A slit-shaped wound with uneven and suffused edges, 3 cm long, is visible in the parietal-occipital-temporal area. Small tissue bridges are visible at the bottom of the wound. ... An oblique bluish suffusion, measuring 4 by 2 cm, is visible on the frontal part [of the thorax], in the middle part, in the projection of the sternum. Two strip-shaped bluish-violet blood suffusions, parallel to one another, measuring 8 by 2 cm, at a distance of 3.5 cm between them, are visible on the back surface of the right shoulder. ... A bluish-violet suffusion, measuring 4 by 3 cm, was found on the left buttock. ... The right armpit bone is broken in the middle third with suffusions in the musculature. A wound with an irregular shape and even edges, measuring 3 by 2 cm, is visible in this area, on the lateral surface. The bone fragments are at its bottom. Two strip-shaped grazed areas covered with whitish scab at the level of the skin, each measuring 40 by 3 mm, and a distance between them of 5 mm, were found in the area of the right wrist. Three abraded areas covered with reddish scab at the level of the skin, the biggest one measuring 1 cm in diameter, were found on the lateral side of the right knee. A similar grazed area, measuring 4 by 6 cm, was found on the lateral surface of the right calf. The skin on the lateral part of the right sole is suffused and bluish. A similar suffusion, measuring 8 by 3 cm, was found on the internal surface of the left sole.", "Deep skin incisions were made on the back of the corpse, and thereupon suffusions of the soft tissues and the musculature of the right part of the back, in the area of the right shoulder-blade, measuring 18 by 8 cm, vertically oriented, were found. ... A suffusion of the tissues was found in the musculature and the sub ‑ cutaneous layer of the left buttock, in the projection of the above-described suffusion.", "INTERNAL INSPECTION[:] Head. The soft cranial membranes have suffusions on the right frontal-temporal area, on the left parietal-occipital-temporal area, below the above described lacerated-contusion wound. ... A linear fracture was found at the base of the skull, beginning from the right frontal-temporal area, passing on the roof of the right orbit, and ending in the area of the sella turcica. ... The soft meninges are suffused in the temporal parts. ... Rounded violet suffusions, with diameter of not more than 2 mm, were found at the base of the brain, in the area of the right frontal parts.", "... The first, seventh, and eighth ribs on the right side are broken on the posterior sub-arm line with a suffusion in the intercostal musculature. The fractures are wide open inward.”", "28. In the concluding part of the report Dr E. B. summarised the injuries on Mr Stefanov ’ s body as follows:", "“Combined cranial-cerebral and thoracic trauma following a fall from a substantial height. Fracture of the base of the skull. Cerebral contusion, cerebral oedema, with wedging of the cerebellar tonsils. Suffusion of the meninges. Fracture of ribs on the right side. Lacerated-contusion wounds on the head and the face. Suffusions of the cranial membranes, the face, the thorax, and the limbs. Abrasions on the face and the limbs. Open fracture of the right armpit bone. Suffusion of the buttocks. Lack of alcohol in the blood and the urine.”", "29. Dr E. B. concluded that the death had been caused by a cranial ‑ cerebral trauma, consisting of a fracture of the skull, a contusion and a brain oedema.", "30. Addressing the question of the manner in which the injuries had been caused, Dr E. B. stated:", "“The described traumatic injuries were caused by the impact of the body against solid blunt objects and could be sustained in a two-stage fall from a substantial height. The inspection and the autopsy revealed head and body traumatic injuries: head – on the right frontal-temporal area [and] on the left parietal-occipital-temporal area; body – front and back, more pronounced on the right side; limbs – right upper limb, lateral surface of the right leg and internal surface of the left sole. The fall on the roof of the shed produced the injuries on the right side of the forehead and the face and the front of the body. The second stage of the fall – from the roof of the shed to the ground in front of the underground garage – resulted in the injuries on the back of the body, the left parietal-occipital-temporal area of the head and lower limbs. The two chafings of the right wrist suggest sustained contact with handcuffs. The right armpit bone was broken during the first stage of the fall if the hands were handcuffed in front, and during the second stage if the hands were handcuffed on the back .”", "31. Dr E. B. finished his autopsy report with the following findings:", "“All traumatic injuries were sustained while [Mr Stefanov was alive], is indicated by from the suffusions in the areas of the broken bones. These injuries were sustained at the same time and it is possible that they occurred at the time stated in the preliminary data.", "The inspection of the body and the autopsy did not reveal traumatic injuries which cannot be explained by a fall from a substantial height.", "At the time of his death [Mr] Stefanov was not under the influence of alcohol, but the expertise cannot confirm the same for the moment of the fall, because the alcohol test sample was taken more than twelve hours after the incident.”", "32. On 8 June 1993 Mr D.O. was questioned about the incident. He stated, inter alia, that he had not directly seen Mr Stefanov jump.", "33. An investigation was opened on 17 June 1993 by the Plovdiv Military Regional Prosecutor ’ s Office.", "34. The military investigator in charge of the case, Mr S. S., collected the written reports of lieutenant I.C., chief sergeant H.B. and sergeant B .B., but did not question the officers. He started working on the case on 13 December 1993, when he questioned Mr D.O. The latter stated, inter alia, that he had not been mistreated and that Mr Stefanov body did not indicate any bodily assault at the time of his questioning in the morning of 5 June 1993. He also maintained that he had seen Mr Stefanov standing up with his handcuffs on, moving towards the window and jumping. However, he did not state that he had seen Mr Stefanov ’ s fall, but had only seen him lying on the ground.", "35. On 8 February 1994 the Plovdiv Military Regional Prosecutor ’ s Office transferred the case to the competent district prosecutor ’ s office, in view of the amendments to the Code of Criminal Procedure (“the CCP ”) of December 1993 whereby offences allegedly committed by police officers came under the jurisdiction of the general courts (see paragraph 71 below). However, on 5 April 1994 the case was sent back to the Plovdiv Military Regional Prosecutor ’ s Office pursuant to special instructions by the Chief Prosecutor ’ s Office of 16 February 1994. On 20 April 1994 the Plovdiv Military Regional Prosecutor ’ s Office remitted the case file to captain I. N., a military investigator in Stara Zagora, for further action.", "36. Lieutenant I.C. was questioned on 20 June 1994 by the military investigator, captain I. N. He stated, inter alia, that when he had rushed to the window, he had been able to see Mr Stefanov ’ s fall and had seen his body hit the iron sheet roof of the shed situated beneath the window before hitting the ground (see paragraph 17 above).", "37. On 30 June 1994 investigator I.N. recommended that the investigation be discontinued, citing the lack of evidence for a criminal offence. He found that the medical expert report had established that all of Mr Stefanov ’ s injuries had been sustained during his two ‑ stage fall from the window. This finding coincided with lieutenant I.C. ’ s statement that he had seen Mr Stefanov ’ s body first hit the roof of the shed beneath the window and then fall on the ground in front of the underground garage. The investigator concluded that Mr Stefanov had jumped out of the window of his own will, and that this had not been provoked by the conduct of lieutenant I.C. or another police officer.", "38. On 2 9 July 1994 colonel Y.T., prosecutor at the Plovdiv Military Regional Prosecutor ’ s Office, discontinued the proceedings and sent the case file to the Kazanluk District Prosecutor ’ s Office for further action. He reasoned that Mr Stefanov had suddenly jumped from the window of room 36 during questioning, in the presence of lieutenant I.C. and Mr D.O. He had fallen on the ground and had immediately been taken to a hospital, where he had died despite the efforts to revive him. As could been seen from the medical expert report, the Mr Stefanov ’ s death had been caused by a combined cranial-cerebral and thoracic trauma, a fracture of the base of the skull, a cerebral contusion, a suffusion of the meninges, lacerated-contusion wounds on the head and the face, and suffusions of the limbs. There was no indication that lieutenant I.C. had contributed in any way to Mr Stefanov ’ s death.", "39. On 4 August 1994 the Kazanluk District Prosecutor ’ s Office sent the case back to the Plovdiv Military Regional Prosecutor ’ s Office, stating that there was nothing for them to do since the proceedings were discontinued.", "40. During the following year the case file was shuttled between various prosecutor ’ s offices. On 4 October 1994 the first applicant, who was apparently unaware of the latest developments, complained to the Chief Prosecutor ’ s Office about the delay in the investigation and stated that she had not been informed of the investigation findings.", "41. In view of the amendments to the CCP of June 1995 whereby the military courts, investigators and prosecutors were restored jurisdiction over offences allegedly committed by police officers (see paragraph 71 below), on 3 August 1995 the Military Prosecutor ’ s Office in Sofia sent the case for review by the Plovdiv Military Regional Prosecutor ’ s Office with instructions to communicate its ruling to Mr Stefanov ’ s heirs.", "42. In a decision of 27 December 1995 colonel Y. T. , prosecutor at the Plovdiv Military Regional Prosecutor ’ s Office, once again discontinued the investigation for lack of evidence of a criminal offence. He reasoned, without much detail, that Mr Stefanov had jumped from the open window. He had been immediately transported to a hospital, where he had died because of a cranial ‑ cerebral trauma. It had not been established that lieutenant I.C. or another police officer had abused his office, had brought about Mr Stefanov ’ s suicide, or had failed to discharge his or her duties. It appears that a copy of the decision was sent to Mr Stefanov ’ s father.", "43. Apparently the applicants were not informed about these developments, although they had requested to be kept abreast of the progress of the investigation on several occasions.", "44. A copy of the prosecutor ’ s decision was obtained by the applicants ’ lawyer on 12 November 1996. On 9 December 1996 he filed an appeal against it with the Military Prosecutor ’ s Office in Sofia, arguing that the investigation was not comprehensive, that a number of investigative steps had not been undertaken and that various facts had not been clarified.", "45. In a decision of 9 January 1997 prosecutor V. P. of the investigative department of the Military Prosecutor ’ s Office in Sofia found that the investigation had not been full and comprehensive. It had not been established at what time on 4 June 1993 Mr Stefanov had been arrested, who had ordered that he remain in detention after the end of the workday, or whether there had been an order for his police detention for a period of twenty ‑ four hours. If such an order existed, it was not clear who had issued it and on what legal grounds. The legality of the police officers ’ actions had to be assessed also from the point of view of Article 127 of the Criminal Code (“the CC”) (see paragraph 66 below). Another fact which had not been clarified were the circumstances of Mr Stefanov ’ s detention leading up to the incident on 5 June 1993. Also, it was unclear how many objects Mr Stefanov ’ s body had hit during the fall and what was the number of impacts. No inspection had been carried out of the roof of the motorcycle shed. It was apparent from the photographs that it was not deformed although the doctor ’ s report had stated that on his way down Mr Stefanov had first hit the roof and only then the iron grill on the ground. The doctor ’ s report had also stated that the body had sustained two blows during the fall and that all injuries could have been caused by two consecutive blows. Finally, not all persons who could have clarified the facts had been questioned, including chief sergeant H.B., chief sergeant B.B., and others who had been in the back yard and the garage of the police station and might have witnessed the fall.", "46. Accordingly, the prosecutor quashed the decision to discontinue the investigation and ordered to :", "(i) gather all documents in the Kazanluk police station relating to Mr Stefanov ’ s arrest and detention on 4 June 1993;", "(ii) inspect the site of the incident with a view to establishing the exact material of which the metal sheet roof was made and whether there were any deformations on it; also, establish what the distance between the window and the ground was and whether the bloodstain found on the iron grill was situated directly beneath the window;", "(iii) perform a dummy test to determine the exact spot where Mr Stefanov ’ s body had hit the ground;", "(iv) question other possible witnesses; also, take new statements from Mr D.O. about the circumstances of his and Mr Stefanov ’ s detention and stay in the police station, the possible use of physical violence against them, as well as all other circumstances possibly relevant to the case;", "(v) prepare a three-expert forensic report to establish the cause of death and whether there were injuries on Mr Stefanov ’ s body which had not been caused by the fall form the window.", "47. Following the remittal of the case, on 8 March 1997 an investigator inspected the iron sheet roof of the motorcycle penthouse situated beneath room 36, and performed a dummy test.", "48. During the inspection it was found that the iron sheet roof had no marks of bending or deformation.", "49. A human ‑ size leather dummy was thrown twice out of the window of room 36. The first time the dummy was dropped perpendicularly and fell directly on the ground in front of the garage, without touching the iron sheet roof of the penthouse. The second time it was thrown at an angle south of the window and hit the iron sheet roof, then the concrete edge beneath the roof, and then fell on the ground. When the dummy hit the iron sheet roof during the second throwing, the roof gave.", "50. On 25 March 1997 investigator S.S. questioned chief sergeant H.B. who stated, inter alia, that he had not seen Mr Stefanov ’ s fall in its entirety, and had no recollection of how many hits he had heard during the fall.", "51. On 26 March 1997 investigator S.S. questioned chief sergeant B.B.", "52. Following the dummy test, three medical experts were appointed to re ‑ examine the conclusions about the circumstances in which Mr Stefanov ’ s injuries had been sustained. More specifically, they were requested to establish what was the cause of Mr Stefanov ’ s death and whether some of the injuries found on his body could have been the result of factors other than the fall from the window of room 36. Dr E. B. , the medical doctor who had examined Mr Stefanov on 5 June 1993 and had performed an autopsy on his dead body, was one of the experts. The others were Dr H. E. and Dr T. T. , medical doctors from the forensic medicine and ethics faculty of the university of Stara Zagora.", "53. On 18 April 1997 the three experts delivered their report based solely on documents contained in the investigation case file.", "54. The experts confirmed the previous findings about the cause of death, namely that it was the result of a cranial and brain trauma, consisting of a fracture of the base of the skull, contusion and oedema of the brain, with a wedging of the cerebellum and paralysis of the vital brain centres. Although insubstantial, the amount of blood that had entered the respiratory system, also contributed to the fatal outcome, the experts opined.", "55. As to the cause of the injuries, the experts concluded that:", "“such injuries may be sustained in a fall that involves multiple blunt impacts. Such a fall [occurs] the body hits several hard surfaces at different heights, as indicated by the dummy test. Such information was gathered during the dummy test. When thrown at a right angle, the dummy hit the iron sheet roof situated under the window adjacent to the one from which [Mr] Stefanov fell. ...It is possible that [Mr] Stefanov ran tangentially against the edge of the iron sheet roof and that his body rolled off leaving no indentations on the roof. It [was] also possible that [Mr] Stefanov, regardless of whether his body came in contact with the iron sheet roof, hit the concrete edge on which the roof was built. This edge is visible on the photographs and is situated at approximately 23 cm from the wall of the shed. The final stage of the fall was hitting the ground in front of the garage, where the grill is located. It [was] possible that the suffusions on the back surface of the right shoulder could have resulted from an impact against the grill. The lacerated-contusion wound on the head, in case it was turned left, as well as the fracture of the right armpit and the suffusion on the buttocks, occurred during this final stage of the fall. The other injuries were caused earlier during the fall. The two abrasions on the right wrist are consistent with handcuff marks.", "The hit which caused the cranial fracture and the brain contusion [was] sustained in the right frontal part of the head, where the lacerated ‑ contusion wound, the abrasion and the suffusion [were] detected. This was a heavy impact that occurred during an earlier stage of the fall, most probably against the above ‑ mentioned concrete edge.", "All injuries were sustained at the same time. No injuries were found which cannot be explained with a fall from a substantial height and one that involved multiple hard impacts. [There were no injuries] from sharp weapons, firearms, or electricity. No defensive injuries were found on the body or the limbs.", "56. On 21 June 1997 lieutenant I.C. was questioned by captain S. S. , the military investigator who was initially in charge of the investigation. The applicants ’ lawyer was also present. The lieutenant stated that he could not recall exactly the mechanism of Mr Stefanov ’ s fall and could not tell whether Mr Stefanov had first hit the roof of the motorcycle shed, as he did not remember whether he had gone to the window immediately. He explained that his memory of the events had faded because they had taken place a long time before and had unfolded very quickly.", "57. Mr D.O. was not re ‑ questioned. The Kazanluk police tried to locate him but found that his whereabouts after 1993 – when he was released and apparently not prosecuted any further for the alleged thefts – were unknown. There were some indications that he was living on the territory of the Troyan municipality, in one of the mountain villages there, but his exact address was unknown, as he had not communicated it to the address register of his previous domicile, the municipality of Muglizh. His mother ’ s whereabouts were also unknown, his grandfather and uncle had died, and there were no other relatives in Muglizh who could provide information about him. The applicants ’ lawyer requested that the investigation remain pending until Mr D.O. was located and questioned.", "58. Also, no documents were gathered about Mr Stefanov ’ s arrest and detention on 4 and 5 June 1993. In a letter of 20 July 1997 the head of the Kazanluk police station informed the investigation authorities that up until August 1993 the persons detained for less than twenty ‑ four hours had simply been registered and no orders for their arrest had been issued, and that the registers for 1993 had not been preserved.", "59. On 29 July 1997 investigator S.S. recommended that the investigation be discontinued. He stated that the instructions of the Military Prosecutor ’ s Office had been complied with in the course of the additional investigation. The register of the detained persons in the Kazanluk police station was no longer available, nor were the police fill-in forms for detention. It was therefore impossible to establish who had brought Mr Stefanov to the police station. Also, an additional inspection of the death scene had been carried out, revealing that Mr Stefanov ’ s body had not hit the iron sheet roof, which was not deformed, but the edge beneath it, and then the ground. This was apparent from the medical expert report. Certain witnesses had been re-questioned. The re-questioning of Mr D.O. had been impossible, as he could not be tracked down. As indicated by the medical expert report, Mr Stefanov ’ s death had been caused by a cranial ‑ cerebral trauma, consisting of a fracture of the skull base, contusion and oedema of the brain with a wedging of the cerebellum and a paralysis of the vital brain centres. Such injuries could be the result of a two ‑ stage fall, when the body had encountered obstacles at various heights before hitting the ground. No injuries which could not be explained with such a fall had been found, nor injuries resulting from sharp weapons, firearms, or electricity. There was thus no evidence of a criminal offence by a member of the Kazanluk police.", "60. In a decision of 13 August 1997 captain I. N. , prosecutor at the Plovdiv Military Regional Prosecutor ’ s Office, discontinued the investigation. He reasoned that all instructions contained in the decision of 9 January 1997 of the Military Prosecutor ’ s Office in Sofia had been complied with. The dummy test, the additional medical expert report and the newly questioned witnesses had all confirmed the circumstances underlying the first discontinuation of the investigation. There were no injuries on Mr Stefanov ’ s body which could not be explained by a two ‑ stage fall from a substantial height. The dummy test had determined that Mr Stefanov had first hit the concrete edge under the iron sheet roof and had then fallen on the ground. A copy of the decision was sent to the first applicant with instructions that she could appeal against it.", "61. On 3 and 12 February 1998 the applicants ’ lawyer requested information about the progress of the investigation. He was informed that it had been discontinued, but was not given a copy of the decision of 13 August 1997. He managed to obtain a copy only on 4 March 1998, and immediately appealed it before the Military Prosecutor ’ s Office in Sofia. He argued that Mr D.O. had not been questioned and that the conclusions about the details of Mr Stefanov ’ s fall from the window were inconsistent.", "62. On 31 March 1998 colonel T. Y. , prosecutor at the Military Prosecutor ’ s Office in Sofia, dismissed the appeal, reasoning, inter alia, that Mr Stefanov had jumped in an attempt to leave the premises of the police, that no officers were responsible for this act, and that the investigation had been objective and comprehensive.", "63. The applicants ’ lawyer then filed an appeal with the Chief Prosecutor.", "64. On 18 May 1998 prosecutor V. P., head of the investigative department of the Military Prosecutor ’ s Office in Sofia, to whom the appeal was apparently referred, upheld the decision to discontinue the investigation. He reasoned that there were no indications that Mr Stefanov ’ s “attempt to flee” had been prompted by maltreatment by the police officers who had questioned him. According to the medical expert report, all his injuries had been caused by the fall. There was no indication that any offence had been committed by a police officer, that could be connected with Mr Stefanov ’ s death. A copy of his decision was sent to the applicants ’ lawyer on 9 June 1998." ]

[ "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS", "A. Duty to investigate death and ill ‑ treatment", "65. By Article 115 of the CC, murder is punishable by ten to twenty years ’ imprisonment. Article 116 § 1 ( 2 ) of the CC provides that if a murder is committed by a police officer in the course of, or in connection with the performance of his or her duties, it is punishable by fifteen to twenty years ’ imprisonment, or life, with or without parole.", "66. Article 127 § 1 of the CC makes it an offence to aid or incite suicide, if the person concerned does subsequently commit suicide or makes an attempt to do so. By paragraph 3 of that Article, it is an offence to drive another to suicide or attempted suicide through cruel treatment or systematic humiliation, if this other person is financially or otherwise dependent on the offender, on condition that the offender contemplated that eventuality. Paragraph 4 of that Article makes it an offence to act contrary to the previous paragraph even if the offender does so out of negligence.", "67. Articles 128, 129 and 130 of the CC make it an offence to inflict a light, intermediate or severe bodily injury on another. Article 131 § 1 (2) of the CC provides that if the injury is inflicted by a police officer in the course of or in connection with the performance of his or her duties, the offence is aggravated.", "68. By Article 287 of the CC, as in force at the material time, it was an offence for an official, when acting in the course of, or in connection with the performance of his or her duties, to illegally coerce an accused, a witness or an expert with a view to obtaining a confession, a statement or an opinion.", "69. All of the above offences are publicly prosecutable (Article 161 of the CC and Article 21 § 3 of the CCP, as in force at the material time ).", "70. Article 192 §§ 1 and 2 of the CCP, as in force at the material time, provided that proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator. The prosecutor or the investigator had to open an investigation whenever he or she received information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCP ). If the information given to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP, as in force at the material time). A prosecutor could discontinue an investigation when, inter alia, there was no evidence of an offence, or the alleged act did not constitute an offence (Articles 21 § 1 (1) and 237 § 1 (1) and (2) of the CCP ). At the material time his or her decision was subject to appeal to a higher prosecutor (Article 181 of the CCP, as in force at the relevant time ). In 2001 the CCP was amended to provide for judicial review of a prosecutor ’ s decision to discontinue an investigation.", "71. At the material time the offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the CCP, as in force at the relevant time ). In December 1993 this text was amended to provide that the military courts no longer had jurisdiction over such offences (Article 388 § 1 (2) of the CCP, as amended in December 1993 ). A new amendment in June 1995 reverted to the old regime (Article 388 § 1 (2) of the CCP, as amended in June 1995 and in force until 1 January 2000 ). Where a case would fall within the jurisdiction of the military courts, the preliminary investigation is handled by military investigators and prosecutors.", "B. Arrest and detention", "72. A person may be arrested and placed in detention in the context of pending criminal proceedings, if charges have been brought against him or her (Article 146 § 1 taken in conjunction with Article 207 of the CCP ).", "73. A person could also be arrested by order of an investigator and detained for up to three days if he or she was suspected of having committed an offence punishable by imprisonment, but there was not enough evidence to bring charges. The circumstances in which this could occur were limited and included the cases where ( i ) he or she had been caught during or immediately after the commission of the alleged offence, ( ii ) he or she had been named by an eyewitness, ( iii ) overt traces of the alleged offence were found on the person ’ s body or clothes or in his or her place of abode, or ( iv ) the person tried to flee or his or her identity could not be established and there was enough information that he or she might have committed an offence (Article 202 § 1 of the CCP, as in force at the material time ).", "74. Section 20(1) of the National Police Act of 1976, in force at the relevant time, provided that the police could also arrest a person if ( i ) his or her identity could not be ascertained, ( ii ) he or she behaved violently or in breach of public order, ( iii ) he or she refused, without just cause, to appear after having been duly summoned, ( iv ) he or she knowingly impeded the police from carrying out its duties, ( v ) he or she carried or used unlicensed firearms, cold weapons, or other dangerous devices. In all these cases the police had to immediately carry out the necessary checks. After that, but in no case later than three hours after the person ’ s arrest, he or she had to be released, if no order for his or her detention was made. Only when the person ’ s identity could not be ascertained that deadline was extended to twenty ‑ four hours (section 20(2) of the Act).", "C. The United Nations Model Autopsy Protocol", "75. The “Manual on the Effective Prevention and Investigation of Extra ‑ legal, Arbitrary and Summary Executions” ( U.N. Doc. E/ST/CSDHA/.12 (1991) ), published by the United Nations in 1991, includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it is noted that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details:", "“It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results... It is important to have as few omissions or discrepancies as possible, as proponents of different interpretations of a case may take advantage of any perceived shortcomings in the investigation. An autopsy performed in a controversial death should meet certain minimum criteria if the autopsy report is to be proffered as meaningful or conclusive by the prosector, the autopsy ’ s sponsoring agency or governmental unit, or anyone else attempting to make use of such an autopsy ’ s findings or conclusions. ”", "D. Reports of international organisations on alleged discrimination against Roma", "76. In a number of reports the European Commission against Racism and Intolerance at the Council of Europe has expressed concern about racially motivated police violence, particularly against Roma. Certain other bodies and non-governmental organisations have also reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents. A detailed account of these reports may be found in the Court ’ s judgment in the case of Nachova and Others v. Bulgaria ( nos. 43577/98 and 43579/98, §§ 55 ‑ 59, ECHR 200 5 ‑ ...).", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION", "77. The applicants alleged that Mr Stefanov had been ill ‑ treated and had died as a result of the actions of the police officers. They also complained that no effective investigation had been conducted into the circumstances surrounding his death. They argued that there had been a breach of Article 2 of the Convention, which provides:", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "78. The Government disputed those allegations.", "A. The parties ’ submissions", "1. The applicants", "79. The applicants submitted that Mr Stefanov ’ s fall from the window of room 36 had been either a suicide attempt provoked by severe torture, or an attempt by the police to cover up his prior ill ‑ treatment. There was no evidence that the fall had been an attempt to escape, since the window was situated at 9.6 meters above ground level. No one could be expected to jump from such a height and subsequently be able to run away. There were no structures which could cushion the blow resulting from the fall; in particular, it was obvious that Mr Stefanov ’ s body had not touched the iron sheet roof before hitting the ground. The assertion that Mr Stefanov had made an attempt to flee was even more improbable in view of the facts that he had been handcuffed and that all of his injuries were inflicted on his upper body, which indicated that he had fallen head down. There was likewise no indication that the fall had been the result of a suicide attempt. Mr Stefanov had no history of mental illness and had been facing only a trivial burglary charge. Moreover, such an explanation had not been proffered during the investigation.", "80. The only plausible explanations of Mr Stefanov ’ s fall were either a suicide attempt provoked by torture, or an intentional push by the police officers in an effort to conceal his prior torture. These hypotheses were supported by the number and extent of Mr Stefanov ’ s injuries, most of which he had probably suffered before his fall, during questioning. There was no indication that these injuries had been self ‑ inflicted or sustained at the time of his arrest, or before that.", "81. The applicants submitted that they could not prove beyond doubt the exact cause of Mr Stefanov ’ s fall, but maintained that it was for the authorities to provide a plausible explanation, which they had failed to do.", "82. In deciding that the fall had been the result of an attempt to flee, the prosecution authorities had heavily relied on the statements of lieutenant I.C., chief sergeant H.B. and Mr D.O.. However, those were extremely unreliable. First, the two police officers had an obvious interest in exonerating themselves, whereas Mr D.O. was favourably treated by the police. Second, they had been inconsistent and had changed over time and had obviously been geared towards exonerating the police officers from any responsibility for Mr Stefanov ’ s death. Moreover, the tenor of Mr D.O. ’ s statements had remarkably followed the contours of lieutenant I.C ’ s statements.", "83. In concluding that all of Mr Stefanov ’ s injuries had been sustained during a two ‑ stage fall, the authorities had also relied on the results of the autopsy and the conclusions of the subsequent medical expert reports. However, the autopsy report was deficient in a number of respects and did not meet the standards laid down in the United Nations Model Autopsy Protocol (see paragraph 75 above). For instance, the conclusion that all injuries on Mr Stefanov ’ s body had been sustained during the fall was based on the completely uncorroborated assumption that the fall had been a two ‑ stage one. Moreover, the autopsy report and the subsequent medical expert report did not contain a detailed description of the manner in which each injury had been sustained, instead averring in a general manner that all injuries had been the result of a two ‑ stage fall.", "84. As regards the effectiveness of the investigation, the applicants argued that it had been slow, biased and aimed at exonerating the police officers of all responsibility for Mr Stefanov ’ s death. They pointed to a number of deficiencies in its conducting. In particular, the position of where Mr. Stefanov ’ s body lay on the ground after the fall had not been marked. The investigation had not started immediately. Before the remitting by the Military Prosecutor ’ s Office, the investigation had been very superficial. The dummy test had been carried out four years after the events and the medical experts had not received proper instructions. Moreover, the applicants had not been regularly informed about the unfolding of the investigation and had been hindered in their efforts to intensify it. The applicants also referred to their arguments in respect of the deficiencies in the autopsy and the medical expert reports.", "2. The Government", "85. The Government submitted that Mr Stefanov ’ s injuries had been sustained during his fall. The dummy test carried out during the investigation had shown that if he had jumped slightly rightwards, he could have hit either the iron sheet roof or the concrete edge beneath it, and only then fallen on the ground. All medical expert reports had concluded that he had no injuries which could not be explained by such a sequence of events. It followed that the applicants ’ allegations of ill ‑ treatment were groundless. The absence of abuse was further demonstrated by the statements of all the witnesses. There was no indication of collusion between them. All of them had stated that Mr Stefanov had jumped of his own will. There was no indication that he had been in a physical contact with any police officer at that time, or that force had been used against him. No traces of alcohol had been found in his blood. However, the forensic doctor had caveated the above finding with the statement that had Mr Stefanov had consumed any alcohol prior to his arrest, it would have decomposed beyond detection during the night before the incident. Mr D.O. had stated that neither he, nor Mr Stefanov had been subjected to ill-treatment either at the time of their arrest or later. The discrepancy between the statements of lieutenant I.C. and Mr D.O. as to whether the latter had turned himself in or had been arrested indicated that there was no collusion between them and that Mr D.O. had not been pressured to corroborate the police officers ’ version of the events.", "86. The Government concluded that Mr Stefanov ’ s death had not been caused by the actions of the police officers.", "87. The Government further submitted that the investigation had fully complied with the principles set out in the Court ’ s case ‑ law. That was apparent from the numerous acts of the prosecution authorities and the medical expert reports. The obligation of the authorities to gather evidence had been fulfilled in good faith. Mr Stefanov ’ s relatives had been notified of the discontinuations of the investigation and the reasons therefor.", "88. The investigation had been opened exactly with a view to establishing the circumstances of Mr Stefanov ’ s death. The conclusion of the military investigator of 30 June 1994 that there was no indication of an offence having been committed was based on the medical expert reports, the authors of which were under a duty to state the truth. Their findings were fully coherent with the statements of lieutenant I.C.", "89. The alleged discrepancies between the various statements of lieutenant I.C. and Mr D.O. were not that material, regard being had that the lieutenant ’ s first statement had been made shortly after the incident, whereas his second statement had been made after a considerable time and had thus been more considered. It would be excessive to conclude that the differences between these statements were due to an intention to hide the truth or evade criminal liability. Moreover, this issue had not been raised by the applicants in their appeals against the discontinuation of the investigation.", "90. The investigation had undergone several stages and the case had been remitted several times for further action. The issue whether the injuries on Mr Stefanov ’ s body indicated assault had been examined on several occasions. All eyewitnesses had been questioned more than once, except for Mr D.O., whose whereabouts could not be established. The case had been examined by several levels of prosecution. It could not be argued that an investigation should always result in finding a person guilty of an offence, especially bearing in mind the criminal ‑ law standard of proof beyond reasonable doubt.", "91. In sum, the Government were of the view that the investigation had been complete, objective and comprehensive.", "B. The Court ’ s assessment", "1. Mr Stefanov ’ s death", "(a) General principles", "92. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective.", "93. In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivations of life to the most careful scrutiny, taking into consideration all relevant circumstances.", "94. Persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death.", "95. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the co ‑ existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, §§ 109 ‑ 11, ECHR 2002 ‑ IV ).", "(b) Application of those principles to the present case", "96. The Court observes that there is no indication that Mr Stefanov was injured upon being taken into custody on 4 June 1993. It remains to be examined whether the Government ’ s assertion that his fall – which was apparently the source of the fatal injuries to his head – was unprovoked is plausible, and whether their averment that all of his numerous injuries were sustained exclusively during his fall is satisfactory and convincing.", "97. In this connection, the Court notes that the domestic authorities based their conclusion that all of Mr Stefanov ’ s injuries had been sustained exclusively during his fall on the hypothesis that his body had hit an object – the metal sheet roof or a concrete edge – before impacting against the ground (see paragraphs 22, 23, 30, 37, 38, 42, 45, 55, 59 and 60 above), the apparent reason being that the injuries, that were spread about Mr Stefanov ’ s body, could not have been the result of a single blow. The Court further observes that this version was initially based on the note by the forensic doctor in his report that the “on ‑ duty police officer” had informed him that Mr Stefanov ’ s body had hit the iron sheet roof and only then the ground (see paragraph 22 above). This seemed to be corroborated by lieutenant I. C. ’ s statement, made, significantly, after the report had been drawn up, that he had seen Mr Stefanov hit the roof before hitting the ground (see paragraphs 17 and 3 6 above). That statement differed from the lieutenant ’ s first statement, made immediately after the events, that he had not seen Mr Stefanov ’ s fall, as he had managed to reach and look out of the window of room 36 only when Mr Stefanov ’ s body was already lying on the ground (see paragraphs 17 and 3 4 above). It also differed from the lieutenant ’ s third statement that he did not exactly remember the detailed sequence of the fall and had no recollection of whether he had been able to see Mr Stefanov falling at all (see paragraphs 17 and 56 above), which was made after the second on ‑ site inspection and the dummy test had made it clear that his body had not touched the roof (see paragraph 49 above). Contrary to what the Government argued, the Court finds these differences material, in particular as they were to a large degree determinative of the conclusion that Mr Stefanov had not sustained any injuries prior to his fall. The Court furthermore notes that when the dummy test established that Mr Stefanov could not have hit the iron roof before hitting the ground, thus making this theory implausible, the medical experts readily advanced the theory that he had struck the concrete edge before hitting the ground (see paragraph 55 above). On the basis of this theory the authorities again eagerly concluded that all of Mr Stefanov ’ s injuries were exclusively caused by his fall, without exploring other hypotheses as to their possible source (see paragraphs 59 and 60 above). Their determination on this point seems very questionable.", "98. It furthermore seems unlikely that all of Mr Stefanov ’ s numerous injuries, spread about his trunk, limbs and head (see paragraphs 23 and 27 above), could be solely the product of a fall, even a two ‑ stage one. In this connection, the Court notes the insufficient description of the physical ways through which Mr Stefanov ’ s injuries had been sustained. The forensic doctor who performed the autopsy and the medical doctors who drew up the expert report ordered following the remitting of the case by the Military Prosecutor ’ s Office gave a general account of the probable cause of most of the injuries. However, they did not go into detail as to the manner in which each of the different and, indeed, plentiful, injuries could have been inflicted (see paragraphs 30 and 55 above).", "99. The only account of the events that took place in room 36 on the morning of 5 June 1993 is that contained in the statements of the two police officers who were present there, and of Mr D.O., the person detained at the same time as Mr Stefanov. However, their credibility is undermined by several facts. First, the officers had an obvious gain from presenting Mr Stefanov ’ s fall and injuries as an accident or a suicide. Second, it is important to observe that lieutenant I.C. ’ s version of what he had seen changed over time to match the findings of the other investigative actions: the autopsy and the dummy test (see paragraphs 17, 34, 36 and 56 above). Finally, it should also be noted that Mr D.O. was later treated favourably by the police : although suspected of numerous thefts and burglaries, he was released and apparently not prosecuted any further (see paragraph 57 above). It should also be observed that immediately prior to the events he was trying to shift the responsibility for the alleged thefts and burglaries to Mr Stefanov and an argument erupted between the two (see paragraph 15 above).", "100. It is unclear whether Mr Stefanov jumped off the window of his own will, or, on the contrary, was intentionally pushed or thrown, or forced in a situation where he had no other option but to jump. It is however highly improbable that he consciously tried to escape, given that the window of room 36 was at 9.6 m. above ground level, that the ground was covered with concrete and iron grills, and that he was handcuffed. There is furthermore no indication of him having any reasons to commit an unprovoked suicide, or that he was in any way intoxicated. While testing confirmed the absence of alcohol in the blood and urine at the time of Mr Stefanov ’ s death and not earlier (see paragraphs 25 and 31 in fine above), it seems highly unlikely, and it has not been claimed by the Government, that he could have consumed alcohol or other intoxicating substances during the night or the morning before his fall, seeing that he was in custody and appeared lucid during questioning. There is furthermore no indication that Mr Stefanov suffered from a mental illness which could lead him to commit suicide or act with disregard for his life or bodily integrity.", "101. In view of the foregoing considerations and in particular the inconsistencies in the authorities ’ version of the events leading up to Mr Stefanov ’ s death, the Court finds that the Government have not accounted comprehensively for this death and Mr Stefanov ’ s injuries during his detention in the Kazanluk police station, and that the respondent State ’ s responsibility for his death is engaged. There has therefore been a violation of Article 2 of the Convention in this respect.", "2. Alleged inadequacy of the investigation", "(a) General principles", "102. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful.", "103. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.", "104. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence.", "105. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Anguelova, cited above, §§ 136 ‑ 39, with further references ).", "106. A requirement of promptness and reasonable expedition is implicit in this context. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr v. the United Kingdom, no. 28883/95, § 114, ECHR 2001 ‑ III, with further references ).", "107. For the same reason, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities ’ adherence to the rule of law and prevent any appearance of collusion in, or tolerance of, unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests ( ibid., § 115; and Anguelova, cited above, § 140, with further references).", "(b) Application of those principles to the present case", "108. The Court notes that a number of acts of investigation were undertaken in the present case. An autopsy and an on ‑ site inspection were carried out shortly after the events. A number of other acts were also undertaken later, in particular when the case was remitted by the Military Prosecutor ’ s Office (see paragraphs 20, 27 ‑ 31, 34 and 47 ‑ 5 6 above).", "109. The Court observes, however, that the authorities questioned only lieutenant I. C. , chief sergeants H.B. and B.B., with the first two having an apparent gain from denying any alleged wrongdoing, and Mr D.O., who might have been under pressure to corroborate the police ’ s version of the events. What is of utmost significance, furthermore, are the inconsistencies between lieutenant I.C. ’ s versions of the events – the one put forward immediately after the incident, and the ones proffered after the autopsy and the dummy test results had been announced (see paragraphs 17, 34, 36 and 56 above). He was never asked to clarify those inconsistencies, which, as already noted (see paragraph 97 above), appear material, given that the conclusions that all of Mr Stefanov ’ s injuries had been sustained solely during his fall, and that the fall had been unprovoked, were to a great extent based on the supposed sequence of the fall.", "110. It is also noteworthy that even after the Military Prosecutor ’ s Office ordered the re ‑ questioning of Mr D.O. – the only witness who was not a member of the police force – the latter was not located and re ‑ questioned, and no other information was gathered about the events between Mr Stefanov ’ s arrest on 4 June 1998 and his death in the morning of the next day, 5 June 1993 (see paragraphs 57 and 58 above).", "111. Two other notable omissions were the fact that the site of the incident was not preserved in its original state prior to its inspection (see paragraph 20 above) and, as noted above (see paragraph 98 above), the insufficient description of the physical ways through which Mr Stefanov ’ s injuries had been sustained. It is furthermore noteworthy that the authorities eagerly adhered to the theory – made implausible by the dummy test and for this reason reformulated – that all of Mr Stefanov ’ s numerous injuries were sustained exclusively during his fall (see paragraphs 37, 38, 59 and 60 above), and made no effort to explore other hypotheses as to their possible source.", "112. It is also striking that, despite their finding that Mr Stefanov had jumped out of the window of his own will (see paragraphs 61 and 64 above), the authorities never investigated why he would commit suicide or choose an apparently deadly escape route. No evidence was collected on his mental state before and during his detention (e.g. psychological reports, questioning Mr D.O. on how Mr Stefanov had felt on 4 and 5 June 1993, etc. ) and on any possible reasons for him to commit such an act, if not prompted by the immediate actions of the police officers present in room 36.", "113. In sum, the Court finds that the investigation lacked the requisite objectivity and thoroughness, a fact which undermined its ability to establish the cause of Mr Stefanov ’ s death and injuries. Its effectiveness cannot, therefore, be gauged on the basis of the number of reports made, witnesses questioned or other investigative measures taken.", "114. As to the investigation ’ s promptness, the Court observes that while the authorities carried out a certain number of immediate actions, such as an on ‑ site inspection, an autopsy, and blood and urine tests, and took the statement of Mr D.O. shortly after the events, the military investigator started working on the case more than six months later (see paragraph 34 above). It is also noteworthy that lieutenant I.C. was questioned for the first time a year after the events (see paragraph 36 above), and chief sergeants H.B. and B.B. more than three and half years after the events (see paragraphs 50 and 51 above). Finally, it should be noted that the overall length of the investigation was almost five years. During that time the authorities only questioned five or six witnesses, commissioned two medical reports and one autopsy report, and carried out two inspections and a dummy test, with very lengthy periods of inactivity between the various investigative actions.", "115. Finally, as regards involvement of the next of kin in the investigation, it is noteworthy that the applicants were not consistently kept abreast of its progress, despite their lawyer ’ s requests for information (see paragraphs 43 and 61 above).", "116. On the basis of the above considerations, the Court finds that the investigation in the present case fell foul of the standards set out in the Court ’ s case ‑ law. It follows that there has been a violation of the respondent State ’ s obligation under Article 2 of the Convention to conduct an effective investigation into Mr Stefanov ’ s death.", "II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION", "117. The applicants complained that prior to his fall from the window of room 36 Mr Stefanov had been ill ‑ treated and that the authorities had not carried out an effective investigation into this allegation. They relied on Article 3 of the Convention, which provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "118. The applicants submitted that a number of injuries found on Mr Stefanov ’ s body could not be the result of his impact against the ground and were indicative of torture. However, these injuries had never been properly analysed, since the autopsy report and the ensuing medical expert report had merely stated that all injuries had been sustained during the allegedly two-stage fall. The applicants submitted that in view of the lack of a plausible explanation as to the origin of these injuries, the authorities could be considered responsible for their infliction during the Mr Stefanov ’ s detention.", "119. Referring to their arguments in respect of the investigation under Article 2, the applicants also argued that there had also been a breach of the obligation of the authorities to conduct an effective investigation into the allegations that Mr Stefanov had been ill ‑ treated.", "120. The Government referred to their arguments concerning the alleged violations of Article 2.", "121. The Court found above that the Government had not provided a plausible explanation for a number of injuries found on Mr Stefanov ’ s body (see paragraphs 97, 98 and 101 above).", "122. Those injuries were indicative of inhuman treatment beyond the threshold of severity under Article 3 of the Convention.", "123. There has therefore been a violation of that provision.", "124. The Court does not deem it necessary to make a separate finding under Article 3 in respect of the deficiencies in the investigation, having already dealt with that question under Article 2 (see paragraphs 108 ‑ 16 above; and Anguelova, cited above, § 149, with further references ).", "III. ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION", "125. The applicants complained that Mr Stefanov ’ s arrest had been unlawful and that the authorities had not investigated this. They relied on Article 5 § 1 (c) of the Convention, which provides:", "“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:", "...", "(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so [.] ”", "126. The applicants submitted that Mr Stefanov had been arrested and detained without an order to that effect, in breach of domestic law. They further complained that this aspect of the case had not been properly investigated by the authorities.", "127. The Government did not comment.", "128. The Court notes that, since the investigation did not establish the facts relating to Mr Stefanov ’ s detention and did not gather any documents in this respect (see paragraph 58 above), it is not clear on the basis of which provisions of domestic law (see paragraphs 72 ‑ 74 above), if any, he was taken into custody. Nor have the Government provided any explanations in that regard.", "129. The Court ’ s case ‑ law is clear on the point that the absence of data on such matters as the date, time and location of detention, the name of the detainee, as well as the reasons for the detention and the name of the person effecting it must be seen as incompatible with the very purpose of Article 5 (see Anguelova, cited above, § 154, with further references ). Since such information is in most cases by its very nature exclusively within the knowledge of the authorities, it is incumbent on them to point to the factual and legal grounds for the detention of an individual. In the case at hand they did not comment on this issue at any point during the proceedings; nor was any information about Mr Stefanov ’ s detention gathered during the investigation, as the relevant records in the Kazanluk police station had not been preserved (see paragraph 58 above).", "130. In these circumstances, the Court concludes that Mr Stefanov ’ s deprivation of liberty was not “ lawful ” within the meaning of Article 5 § 1 (c) of the Convention. There has therefore been a violation of that provision.", "131. Having taken into account the authorities ’ inability to establish the circumstances in which Mr Stefanov ’ s was deprived of his liberty and the legal grounds therefor, the Court does not deem it necessary to make a separate finding under Article 5 § 1 in respect of the alleged deficiencies in the investigation.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "132. The applicants complained that they did not have effective remedies in respect of the alleged violations of Articles 2 and 3 of the Convention. They relied on Article 13 thereof, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "133. The applicants repeated their arguments in respect of the complaints under the procedural limbs of Articles 2 and 3.", "134. The Government submitted that the decisions of the investigators and the prosecutors in charge of the case could be appealed against before the Military Prosecutor ’ s Office and the Chief Prosecutor ’ s Office. The applicants had availed themselves of this opportunity. One of their appeals had resulted in the remitting of the case for further investigation.", "135. Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. Its effect is thus to require the provision of a domestic remedy to deal with the substance of an arguable complaint under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicants ’ complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law.", "136. In cases of suspicious deaths, given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure (see Anguelova, cited above, § 161, with further references).", "137. The Court finds that the applicants had an arguable claim under Articles 2 and 3 in respect of Mr Stefanov ’ s death and ill ‑ treatment and that, for the purposes of Article 13, they should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation.", "138. However, in the case at hand, the criminal investigation into the suspicious death was ineffective as it lacked sufficient objectivity and thoroughness (see paragraphs 108 ‑ 16 above). The effectiveness of any other remedy that may have existed was consequently undermined. The Court accordingly finds that the State has failed in its obligation under Article 13 of the Convention. There has therefore been a violation of that Article.", "V. ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION", "139. The applicants complained that the alleged breaches of Articles 2, 3, 5 § 1 and 13 of the Convention had been incited by Mr Stefanov ’ s Roma ethnic origin. They relied on Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "140. The applicants submitted that Mr Stefanov ’ s ill-treatment and death and the ensuing refusal of the prosecution authorities to bring charges against those responsible had been due to his Roma ethnic origin. In their view, this allegation had to be seen against the backdrop of a pattern of police abuse and ill ‑ treatment of Roma in Bulgaria and of the failure of the prosecution authorities to investigate and prosecute racially motivated police violence. In this respect the applicants relied on a number of reports by governmental and non ‑ governmental organisations (see paragraph 76 above). They also referred to the Chamber ’ s judgment in the case of Nachova and Others v. Bulgaria (nos. 43577/98 and 43579/98, 26 February 2004) and submitted that in view of the high incidence of police violence against Roma in Bulgaria, the prosecution authorities should have also investigated that aspect of the case, which they had completely neglected.", "141. The Government submitted that the ethnicity of Mr Stefanov had had no incidence on the facts of the case. It was noteworthy in this respect that the other person who had been arrested at the same time, Mr D.O., had made no allegations of ill ‑ treatment; on the contrary, he had corroborated the police officers ’ version of the events. Moreover, there were no direct or indirect indications of racial hatred or bias behind the alleged assault of Mr Stefanov.", "142. The investigation into Mr Stefanov ’ s death had been thorough and comprehensive. The authorities ’ findings of fact had been based on the statements of the witnesses, the medical expert reports and the dummy test. Even if the applicants contested the veracity of the statements, the other pieces of evidence remained unrebutted. The military investigation authorities were not obliged to investigate the theoretical aspects of a case where there were no apparent leads to a possible hate crime. The authorities had performed the investigation according to principles they would have applied irrespective of the victim ’ s ethnicity. To hold that they should, in addition, have specifically investigated any racial motives would mean to impose a duty on them to do so every time the alleged victim belonged to a minority group. In the case at hand such a line of inquiry would have been completely unwarranted and would run counter to the principles underlying the Convention and the general public international law. The Government stressed in this connection that the general reports of non ‑ governmental organisations on the discriminatory attitudes against Roma suspected of criminal offences in Bulgaria were irrelevant, as there were no specific facts in the case which could cast doubts in that respect. These reports alone could not provide a sufficient basis for the Court to find the investigation problematic under Article 14, as it had to confine its examination to the specific facts of the case before it.", "B. The Court ’ s assessment", "143. In its recent judgment in the case of Nachova and Others v. Bulgaria the Grand Chamber of the Court examined an almost identical complaint and set out the relevant principles for assessing whether racial prejudice had played a role in a killing by State agents and whether the authorities subsequently discharged their positive obligation to investigate the allegations of racially ‑ motivated violence.", "144. In assessing whether respondent State was liable for deprivation of life on the basis of the victims ’ race or ethnic origin, the Court adopted an approach based on the specific circumstances of the case and the overall context. It looked into several factual elements pointed by the applicants (excessive use of firearms and uttering a racial slur by one of the law enforcement officers), and also at the reports of a number of organisations, including intergovernmental bodies, which had expressed concern about the occurrence of violent incidents against Roma in Bulgaria. In the circumstances it found those insufficient to conclude that racist attitudes had played a role in the events leading to the death (see Nachova and Others, cited above, §§ 144 ‑ 59 ).", "145. As regards the authorities ’ obligation to investigate the deaths of persons belonging to an ethnic minority, the Court held that when investigating deaths at the hands of State agents, they have the duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice could have played a role in the events. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence ( ibid., §§ 1 60 and 161 ). In its later analysis of the specific circumstances of the case, the Court placed particular reliance on the racist slur uttered by one of the State agents involved in the events and on the fact that he had used grossly excessive force against two unarmed and non ‑ violent men. It found that these, seen against the background of the many published accounts of the existence in Bulgaria of prejudice and hostility against Roma, called for verification, and concluded that the authorities had before them plausible information which was sufficient to alert them to the need to carry out an initial verification and, depending on the outcome, an investigation into possible racist overtones in the events at issue (ibid., §§ 163 ‑ 66).", "146. In the case at hand, unlike the situation obtaining in Nachova and Others, the materials in the case file contain no concrete indication that racist attitudes had played a role in the events of 4 and 5 June 1993. Nor have the applicants pointed to any such facts.", "147. It is true that, as noted above, a number of organisations, including intergovernmental bodies, have expressed concern about the occurrence of incidents involving the use of force against Roma by Bulgarian law enforcement officers that had not resulted in the conviction of those responsible (see paragraph 76 above). However, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the death of Mr Stefanov was the result of racism ( ibid., § 155 ), and, failing further information or explanations, must conclude that it has not been established that racist attitudes played a role in events leading to his injuries and death.", "148. Concerning the authorities ’ duty to investigate, the Court notes that it has already found that the Bulgarian authorities violated Article 2 in that they failed to conduct a meaningful investigation into the death of Mr Stefanov (see paragraph 116 above). It considers, as in Nachova and Others, that in the present case it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and his death. However, it notes that, unlike the situation obtaining in Nachova and Others (cited above, § 163), in the case at hand the authorities did not have before them any concrete element capable of suggesting that the death of Mr Stefanov was the result of racial prejudice. While the Court does not underestimate the fact that there exist many published accounts of the existence in Bulgaria of prejudice and hostility against Roma (see paragraph 76 above), it does not consider that in the particular circumstances the authorities had before them information which was sufficient to alert them to the need to investigate possible racist overtones in the events that led to the death of Mr Stefanov.", "149. It follows that there have been no violations of Article 14 of the Convention taken together with Articles 2, 3, 5 § 1 and 13 thereof.", "VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "150. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "151. The first applicant claimed 2 0,000 euros (EUR) as compensation for the non ‑ pecuniary damage resulting from the death of Mr Stefanov, whereas the second applicant claimed EUR 10,000. They submitted that the compensation claimed was for pain and suffering, as well as loss of moral and financial support. They relied on a number of judgments in similar cases and summarised the relevant criteria in the Court ’ s case-law. The applicants argued that the events leading to Mr Stefanov ’ s death had gravely upset them, as had the lengthy and ineffective investigation. Finally, the applicants invited the Court to take into account the vulnerability of Mr Stefanov ’ s family, which had lost his support.", "152. The Government submitted that the claim was unfounded as there had been no violations of the Convention. The cases to which the applicants referred were inapposite, as they concerned suspicious deaths in custody and inadequate investigations, which was not the case here. There was no indication that physical force had been used against Mr Stefanov, as established by the ensuing investigation, which had been thorough and objective. The Government were of the view that the applicants ’ claim was in fact for pecuniary damages and as such speculative and unproven. Insofar as it could be construed as a claim for non-pecuniary damages, it was excessive.", "153. The Court notes from the outset that it has already found violations of Articles 2, 3, 5 § 1 and 13 of the Convention. Therefore, it does not have to re ‑ examine the merits of the case here, as would seem to be the implication of the Government ’ s comments. It further notes that the applicants have not sought compensation for the pecuniary damage resulting from Mr Stefanov ’ s death, as is apparent from the tenor of their claims. It is thus unnecessary to consider the Government ’ s arguments in this respect.", "154. As regards claim for compensation for the non-pecuniary damage, the Court considers that the applicants must have suffered gravely as a result of the serious violations, found in the present case, of the most fundamental human rights enshrined in the Convention. The Court notes that the case concerns the death of the first applicant ’ s partner and father of two of her children, and the second applicant ’ s son. Having regard to its judgments in similar cases (see Velikova v. Bulgaria, no. 41488/98, §§ 96 ‑ 98, ECHR 2000 ‑ VI; Anguelova, cited above, § § 170 ‑ 73; and Nachova and Others, cited above, §§ 171 ‑ 72), it awards the amounts claimed in full.", "B. Costs and expenses", "155. The applicants sought the reimbursement of EUR 6,120 for 70 hours of legal work at the rate of EUR 80, and 13 hours of travel of their lawyer, at the hourly rate of EUR 40. They submitted a fees ’ agreements with their lawyer and a time ‑ sheet.", "156. The Government were of the view that the amount claimed was excessive if compared to the usual lawyers ’ fees in Bulgaria.", "157. The Court considers that the costs and expenses claimed were actually and necessarily incurred and relate to the violations found (see Nachova and Others, cited above § 175). As to the amounts, it considers that the claim appears excessive. Taking into account all relevant factors, it awards jointly to the two applicants EUR 4 ,00 0, plus any tax that may be chargeable, to be paid into their the bank account of their lawyer, Mr Y. Grozev, in Bulgaria.", "C. Default interest", "158. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant, Mrs Miluša Mižigárová, is a Slovak national who was born in 1979 and lives in Poprad. She is represented before the Court by Ms L. Gall of the European Roma Rights Centre, a lawyer practising in Budapest. The Slovak Government (“the Government”) were represented by their Agent, Ms M. Pirošíková.", "A. The circumstances of the case", "6. The facts of the case, as submitted by the parties, may be summarised as follows.", "7. At approximately 8.00 to 8:30 p.m. on 12 August 1999 police officers G. and J. apprehended the applicant's husband, Mr Ľubomír Šarišský, and another person (“R.K.”) on suspicion of having stolen bicycles. At the time of his arrest, Mr Šarišský was twenty-one years old and in good health.", "8. Following their arrest Mr Šarišský and R.K. were driven to the District Police Department in Poprad. After four policemen questioned him, Mr Šarišský was taken to another room for further interrogation by Lieutenant F., an off-duty officer with whom he had had previous encounters. At some point during the interrogation, Mr Šarišský was shot in the abdomen. He died after four days in hospital as a result of the bullet wound sustained in the police station during his interrogation.", "9. The following is a more detailed description of the relevant facts as alleged by the applicant.", "1. Facts relating to the lethal injury of Mr Šarišský", "10. After being taken to the District Police Department, Mr Šarišský and R.K. were questioned by police officers H. and K., who were on duty at the time. Officers G. and J. were present during the interrogation. When later testifying before the investigator, Sgt. H. stated that “Šarišský was aggressive during the interrogation, he kept getting up from the chair, banged his head against the wall saying he would jump from the window ”. Sgt. H. stated that Mr Šarišský had not been handcuffed during interrogation. According to police officer G., however, Mr Šarišský remained handcuffed, at least for the time he was present.", "11. According to officer H., Lt. F. joined the interrogation when Mr Šarišský was signing the record of the interrogation. Mr Šarišský and Lt. F. started arguing, shouting at each other using their first names. Lt. F. was off duty at the time. His shift was to start at 11 p.m.", "12. Lt. F. subsequently phoned his superior, the Director of the Criminal Police Department in Poprad, and informed him that Mr Šarišský and another person had been apprehended. The Director told Lt. F. that he had been informed about the arrest by the operations officer, that he would come to the task assignment meeting at 10.30 p.m. to decide who would question the suspects, and that “it might as well be him”.", "13. Lt. F. considered that he had been authorised to question Mr Šarišský. He volunteered to take over the questioning. He took Mr Šarišský to his office in the District Police Directorate, which was located in a different part of the same building. Lt. F. handcuffed Mr Šarišský to a radiator and left his office for a while.", "14. Upon his return Lt. F. removed the handcuffs from Mr Šarišský and resumed the questioning. Mr Šarišský was subsequently shot in the abdomen with Lt. F.'s service pistol. Lt. F. telephoned the operations officer and asked him to call the emergency services. He then ran to the operations centre to repeat his request. Lt. F. returned to his office and carried Mr Šarišský down to the vestibule. From there he was transported to a hospital.", "15. At midday on 13 August 1999 Capt. T., a police officer of the Department of Supervision and Inspection Service of the Ministry of the Interior, questioned Mr Šarišský in his hospital bed. The questioning took place in the presence of the head physician.", "16. Mr Šarišský was able only to move his head in response to questions asked. When asked whether he was shot by the policeman, he answered “no”; whether he shot himself, he answered “yes”; did he steal the gun from the police - “no”; did he ask for the weapon from the policeman and it was handed to him, he answered “yes”; did the policeman hit him - “yes”; and when asked if there was any one else in the room besides the policeman, he answered “no”. When asked by Capt. T., the head physician allegedly stated that Mr Šarišský had no injury to the jaw or any hematomas on the body apart from the bullet wound.", "17. The applicant only learned about the incident on 13 August 1999 when she met R.K., who had been released. She went to the hospital with another person and saw that her husband was connected to different tubes. He was conscious but could not speak. She asked him whether he had shot himself. Mr Šarišský responded “no” by moving his head. She repeated the question and received the same answer from him. Her husband could not hear at all in one ear, although he had never had any problem with his hearing. He had bruises all over his body, “below the neck, ... on the right shoulder, ... on his face and below, underneath his right eye”.", "18. The applicant visited her husband again on 14 August 1999, accompanied by two other persons. When asked whether a policeman had shot him, Mr Šarišský nodded. Mr Šarišský had bumps on the head and his face was swollen. They wanted to take pictures of those bruises but the head physician did not allow them to.", "19. Mr Šarišský died on 17 August 1999 as a result of complications caused by the wound. On the same day an investigator from the Police Regional Investigation Office in Prešov ordered the examination and autopsy of the body. He instructed two forensic medical experts to perform an external and internal examination of the corpse and describe the individual wounds and how they arose. He ordered them to submit the report within fourteen days.", "20. The forensic experts carried out the autopsy on 18 August 1999 but the autopsy report was not submitted to the investigator until 26 October 1999.", "21. The report stated that there was a small, visible bruise of 3x2cm on the mucous membrane of the upper and lower lips in the left corner of the mouth. The autopsy report also described a torn drum in the left auditory canal with clear liquid. According to the report, such a condition could arise as the result of illness or inflammation of the inner ear, but it could also be caused by a blow with a blunt object.", "22. The report concluded that Mr Šarišský had died a violent death, caused by post-traumatic and hemorrhagic shock induced by a perforating gunshot wound to the abdomen inflicted by a projectile fired from a police service pistol. The gunshot ruptured the large intestine, the mesentery of the small intestine, the inferior vena cava, the lumbar spine and spinal cord. There was shock after injury resulting from bleeding which, together with the subsequent complications (including acute inflammation of the soft tissues of the spinal cord and the brain and a serious defect of blood coagulation) led to the death of Mr Šarišský.", "23. According to the testimonies of his close relatives, Mr Šarišský did not know how to handle weapons, he had never owned or handled a gun, and he did not have any record of mental instability.", "2. Ensuing investigation and criminal proceedings against Lieutenant F.", "24. Throughout the course of the subsequent investigation, Lt. F. offered differing accounts of the circumstances which preceded Mr Šarišský's death.", "25. According to the statements by Lt. F., he sat down on a chair at the table next to the window in his office, whereas Mr Šarišský sat down on a chair by the wall. When the questioning resumed, Mr Šarišský denied the thefts. Allegedly, they raised their voices. According to Lt. F., he told Mr Šarišský to write the names of those responsible for the theft on a piece of paper and left him alone in the office without handcuffing him. Lt. F. alleged that when he returned to the office, he had to walk around Mr Šarišský, who was sitting on a chair with his back to the door. As Lt. F. passed him, he felt a sudden blow to his right shoulder and fell to his knees. He heard a click and realised that Mr Šarišský had cocked the pistol. According to Lt. F., when he stood up and turned to face Mr Šarišský, he saw the latter holding his service pistol in his hands, which he aimed at Lt. F. When Lt. F. asked Mr Šarišský not to do anything stupid and to give back the weapon, the latter allegedly pointed the pistol towards himself in the area of the abdomen and, sitting on the chair, pulled the trigger.", "26. According to Lt. F., Mr Šarišský remained in a sitting position on the chair, holding the pistol in his hand. Lt. F. took it from him and put it on the table. He then claimed he phoned the operations officer and asked for medical help. After that, he unloaded the weapon, looked on the floor for the magazine or ammunition and re-assembled it. He looked at Mr Šarišský's wound and saw that on the paper which he had left him was the text “say hello to Kristína”. He then ran to the operations centre to repeat the call for the emergency service. Mr Šarišský remained seated on the chair and when Lt. F. returned to his office, he carried him down to the vestibule.", "27. The applicant points out that both in the report where he provided explanations to his superior on the night of the incident and in a report drawn up on 13 August 1999 Lt. F. briefly described how the suspect had pulled his service pistol out of the holster, cocked it and shot himself in the abdomen. It was only in his later statements that he mentioned any violent or forceful action by the victim. The applicant also points out that Lt. F. was approximately 1.90 metres tall and weighed about 100 kilograms. Mr Šarišský was considerably smaller.", "28. Moreover, Lt. F. offered an inconsistent account of how he had walked by Mr Šarišský in the moment preceding the alleged attack. Lt. F. claimed that Mr. Šarišský had been sitting with his back to the door but according to the statement of another police officer, who entered Lt. F.'s office after hearing the shot, Mr Šarišský was sitting on a chair facing the door. The Government have contested the English translation of this police officer's statement, and contend that in the Slovak version he in fact stated that Mr Šarišský was sitting with his right side facing the door. During the first reconstruction of the incident on 8 September 1999, Lt. F. told the investigator that he had passed on the right side of Mr Šarišský, but he later said that he had passed between the table and Mr Šarišský.", "29. Lt. F. claimed that Mr Šarišský had attacked him from behind, surprising him and simultaneously pulling his pistol from the holster and cocking it. He could not remember how Mr Šarišský had held the pistol, or in which hand, and he gave several accounts of what he did with the pistol after removing it from the victim's hand.", "30. After the incident had occurred, a police officer took the pistol of Lt. F. and placed it in the information officer's room. The investigator then seized the pistol. A task-force was formed which consisted of a forensic technician from the Criminal Police Department of the Police Force District Directorate in Poprad, a Senior Inspector at the Police Force Circuit Department in Poprad and an Investigator from the Police Force District Office of Investigation in Poprad. The task force carried out an on-site inspection on the night of 12 August 1999. Two police officers were present for the inspection.", "31. Starting at 11.50 p.m., they inspected Lt. F's room. They did not take samples of gunpowder residue from the hands of Lt. F. The reason given was that they did not have the proper and necessary materials. The samples were taken at approximately 2.00 p.m. the next day by an expert technician from Kosice and no residue was found. Lt. F. claimed that he had not washed his hands before the samples were taken. As for Mr Šarišský, the nurse at the hospital had washed his hands after he underwent the first surgery, thus rendering the test useless.", "32. On 20 August 1999 an investigator from the Regional Office of Investigation in Prešov ordered the Criminology and Expert Opinions Institute of the Police in Bratislava to undertake dactyloscopy, biology and chemistry test on objects, traces and samples found during the site inspection. The results of this examination were all negative. According to the expert opinion of the Criminology and Expert Opinions Institute in Bratislava which examined and evaluated the disks from the hands of Mr Šarišský and Lt. F., no particles coming from firing residue were found. The dactyloscopy expert did not find any fingerprints on the weapon which could be evaluated, due to the insufficient number of papillary lines.", "33. On 6 October 1999 the same institute examined the piece of paper with the text “say hello to Kristína” and compared the writing with the writing of Lt. F. and of Mr Šarišský. The experts concluded that the text had most probably not been written by Lt. F., whereas that part of the text which read “say hello to” had most probably been written by Mr Šarišský. They could not adequately evaluate the word “Kristína” because it was written in capital letters and they did not have sufficient samples of capital letters from the deceased Mr Šarišský. The applicant submits that the investigation file which her representative examined at the Poprad's courthouse did not contain this document. An independent handwriting test was therefore impossible.", "34. On 8 September 1999, between 7.10 p.m. and 9.15 p.m., the Police Regional Investigation Office in Prešov conducted a reconstitution of the events in the office of Lt. F. The experts were informed of the location of the entry and exit wounds and the location where the bullet hit the chair. The reconstruction documented possible alternatives for the shooting of Mr Šarišský, with Lt. F. and Mr Šarišský in different positions, and with each one firing the fatal shot. The ballistic expert present at the reconstruction concluded that the injury to Mr Šarišský was “most probably” self-inflicted as the direction of the shot was from below upwards and from the right to the left.", "35. On the same night, from 9.20 p.m until 9.40 p.m, an experiment was performed with the aim of clarifying how the weapon was pulled and respective time intervals. During the reconstruction Lt. F. stated that his shirt had been tucked in under the belt on which he had the holster containing the weapon. According to the report, the investigation experiment measured the time intervals for three different ways of pushing and simultaneously drawing the weapon from Lt. F.'s holster, pushing with the hand, pushing with the forearm and with the left part of the body and the hand. These three alternatives were repeated twice.", "36. On 12 November 1999 a police investigator from the Regional Investigation Office in Prešov accused Lt. F. of the offence of injury to health. He was questioned immediately afterwards and pleaded not guilty.", "37. On 18 November 1999 Lt. F., through his counsel, submitted the grounds and his reasons for pleading not guilty. In particular, he stated that there had been nothing to lead him to the conclusion that Mr Šarišský would injure himself. He also stated his weapon had been properly secured in the holster which he had had on his belt under his shirt. He alleged that the deceased unexpectedly, suddenly, and with the use of force had pulled his weapon out of the case.", "38. The applicant points out that in this testimony Lt. F. altered his previous statements regarding the non-violent behaviour of Mr Šarišský and the way he was carrying the gun. According to this testimony, the pistol had been covered by the shirt so it could not be seen, whereas during the September reconstruction of the events he had stated that his shirt had been tucked in under the belt on which he had the case with the weapon.", "39. At 9.00 p.m. on 4 May 2000, in view of the new testimony given by Lt. F., the Regional Investigation Office in Prešov and technicians from the Criminal Police Department in Poprad conducted another experiment with the aim of clarifying the manner of drawing the weapon. During the experiment, when the accused was carrying the pistol covered by his shirt in accordance with Lt. F.'s testimony of 22 November 1999, the assistant did not succeed in any one of three attempts to pull the weapon.", "40. On 11 May 2000, following the completion of the investigation, the applicant and her counsel perused the entire investigation file. In the record they confirmed that they had been given sufficient time for the perusal, that they proposed no further investigation be carried out, and that they had no comments on the documents included in the file.", "41. On 29 May 2000 a public prosecutor indicted Lt. F. with the offence of causing injury to health under Section 224(1) and (2) of the Criminal Code as a result of his negligence in the course of duty. In the indictment the public prosecutor stated, inter alia, that Lt. F.'s testimony that the pistol was on his belt covered by the shirt was not true, because if that had been the case, Mr Šarišský could not have pulled it away from him.", "42. On 18 October 2000 a judge of the District Court in Poprad issued a penal order under Section 314e of the Code of Criminal Procedure. In it he convicted Lt. F. of injury to health caused by negligence in the course of duty within the meaning of Section 224(1) and (2) of the Criminal Code. The penal order stated that Lt. F. had failed to secure his service weapon contrary to the relevant regulations and that, as a result, Mr Šarišský had managed to draw the weapon from the case and to inflict with it a lethal injury on himself.", "43. Lt. F. was sentenced to one year's imprisonment, suspended for a two ‑ and-a-half-year probationary period. The penal order of 18 October 2000 was based solely on the evidence submitted by the prosecutor and it gave no account of the criminal investigation. The judge referred the injured parties, including the applicant, to civil proceedings for damages.", "44. Neither the public prosecutor nor Lt. F. challenged the penal order which thus became final.", "45. Lt. F. committed suicide on 23 January 2001.", "46. The applicant had participated in the criminal proceedings as a victim and sought an award of damages. As she did not indicate the quantum of damages sought, as required by Article 43 (2) of the Code of Criminal Procedure, the judge advised her of the possibility of recovering damages through a civil action.", "47. On 27 September 2000 the applicant's counsel lodged a claim for damages with the Ministry of Justice. On 22 January 2001 the claim was rejected on the ground that the Ministry of Justice lacked jurisdiction to hold a preliminary hearing. Pursuant to section 9 of the Act No. 58/1969, only claims for damages resulting from wrongful decisions had to be lodged with the Ministry of Justice. In the present case, the victim suffered damage as a result of the incorrect procedure by a police officer and her action therefore had to be filed directly with a court of law.", "3. The applicant and her daughter's claims for damages", "48. On 28 May 2001 the applicant, through her lawyer, filed an action for damages to the Bratislava III District Court. She claimed 45,000 Slovakian korunas (SKK) in compensation for damage of pecuniary nature and SKK 5 million for damage of non-pecuniary nature. As her submissions did not meet the formal requirements set out in Article 79 § 1 of the Code of Civil Procedure, in its ruling of 23 October 2001 the court gave the applicant 15 days to complement her action failing which the proceedings would be discontinued. The applicant did not comply with the request. The District Court therefore discontinued the proceedings on 17 April 2002.", "49. On 9 August 2002 the applicant filed an action against the Slovak Republic under Articles 11 et seq. of the Civil Code. She claimed compensation from the State (represented by the Prešov Regional Directorate of the Police Corps) for non-pecuniary damage in the amount of SKK 900,000 alleging that, as a result of the wrongful conduct of Lt. F., there had been an interference with her husband's physical integrity which had resulted in his death. She relied on the Poprad District Court's penal order of 18 October 2000.", "50. On 7 August 2003 the Poprad District Court dismissed the action. On 10 January 2005 the court of appeal quashed the first-instance decision.", "51. On 6 February 2006 the Poprad District Court admitted the applicant's daughter, Ms Kristína Šarišská, as plaintiff.", "52. On 6 March 2006 the applicant withdrew her claim.", "53. On 31 May 2006 the District Court discontinued the proceedings in respect of the applicant. It dismissed the claim of the applicant's daughter. It had not been shown that the daughter, who had been ten months old when her father had died and had lived with her grandmother, had suffered any interference with her personal rights warranting protection under Articles 11 et seq. of the Civil Code. In addition, the court established that the defendant, as indicated by the applicant, lacked standing in the case. The applicant and her daughter should have directly sued the Prešov Regional Directorate of the Police Corps. Finally, the claim of the applicant's daughter had been filed outside the statutory time-limit. The right claimed by her had therefore lapsed.", "54. On 20 September 2007 the Prešov Regional Court upheld the first ‑ instance judgment. It held that any non-pecuniary damage which the plaintiff had suffered resulted from the fatal injury which, as it had been established in the course of the criminal proceedings, her father had inflicted on himself. There had therefore been no interference with the plaintiff's personal rights as guaranteed by Articles 11 et seq. of the Civil Code. The Regional Court did not accept the first-instance finding according to which (i) the defendant lacked standing in the case and (ii) the right claimed had become statute-barred.", "4. Constitutional proceedings", "55. On 18 January 2008 the applicant's daughter, represented by the applicant, lodged a complaint with the Constitutional Court. The plaintiff relied, inter alia, on Articles 2, 3, 8 and 13 of the Convention and referred to the above proceedings leading to the Prešov Regional Court's judgment of 20 September 2007.", "56. On 5 November 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It found no arbitrariness or unlawfulness in the proceedings complained of. With reference to its case - law the Constitutional Court further held that, in the absence of any shortcomings in the proceedings under examination, the ordinary courts involved could not be held liable for any breach of the plaintiff's material rights under Articles 2, 3 and 8 of the Convention. The Regional Court had examined the plaintiff's appeal; the latter had therefore had an effective remedy at her disposal as required by Article 13 of the Convention.", "B. Reports of alleged police brutality in Slovakia in respect of persons of Roma origin", "1. United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (Annual Report, E/CN.4/1999)", "57. The report indicates, inter alia, that human rights monitoring bodies observed that the police exerted pressure on the victims of police brutality to withdraw their complaints.", "2. Conclusions and Recommendations of the Committee Against Torture (11 May 2001)", "58. The report refers to allegations of instances of police participation in attacks against Roma, to the failure on the part of the authorities to carry out prompt, impartial and thorough investigations into allegations of such actions or to prosecute and punish those responsible as well as to allegations that the law enforcement officials ill-treated detainees during detention and in police custody, particularly in lock-ups and police cells.", "3. The European Commission against Racism and Intolerance (ECRI): Second Report on Slovakia adopted on 10 December 1999", "59. The report noted that:", "“...the problem of police mistreatment of members of minority groups, particularly Roma, is of particular concern to ECRI...Victims are reportedly very unwilling to come forward through fear of reprisals and for lack of confidence in the possibilities for redress. ECRI stresses that any incidence of police brutality against minority groups should not be tolerated by the authorities, and that this should be made clear by a firm and public condemnation from politicians and police leaders. Steps should be taken to investigate all alleged mispractices and punish offenders: an independent investigatory body should carry out all such investigations...", "At the level of prosecuting authorities and judges, it is noted that very few cases of racially motivated crime reach the courts at all, or, if they do, they are generally prosecuted as ordinary crimes.”", "4. US Department of State 1999 Country Reports on Human Rights Practices – Slovak Republic", "60. The report noted that:", "“In January police officers reportedly raided a Roma settlement in Kosice, injuring 16 Roma...In October, during a raid on a Romani community in Žehra, police allegedly used excessive force as they detained 9 Roma on charges of hooliganism. During the incident, the police shot a 13 year old Romani boy with a plastic bullet, and he was hospitalised as a result of his injury. Police reportedly use pressure and threats to discourage Roma from pressing charges of police brutality. Human rights monitors continued to charge that police...used their device of countercharges to pressure Roma victims of police brutality to drop their complaints...”", "5. US Department of State 2000 Country Reports on Human Rights Practices – Slovak Republic", "61. The report observed that:", "“Police reportedly use pressure and threats to discourage Roma from pressing charges of police brutality. In 1998 and 1999, Roma in the town of Vráble lodged complaints against a local law enforcement officer ... for allegedly attacking teenage Romani boys. The Ministry of the Interior investigated the case and found [the officer] not guilty ... In March two Roma from the eastern town of Michalovce voluntarily came to the police station for questioning. They were allegedly beaten by some police officers. The victims suffered several injuries including broken legs, hands and ribs. When questioned about the incident, the police first claimed that the action was justified but later admitted that it was unwarranted.”", "6. International Helsinki Federation for Human Rights: Human Rights in the OSCE Region: The Balkans, the Caucasus, Europe, Central Asia and North America, Report 2001", "62. The report indicated that:", "“The most common human rights violation committed by the police was the disproportionate use of coercive methods, which often resulted in injuries to the arrestee and the need for medical care. Such abuse, however, was almost impossible to prove since there was no independent control commission for complaints of ill ‑ treatment and misconduct by law enforcement officials.”", "7. International Helsinki Federation Annual Report 1999", "63. This report observed that:", "“In recent years, although racist violence against Roma in Slovakia has increased, effective prosecution and punishment have been rare. Also the police have resorted to abuse. On 27 October police officers assaulted Roma inhabitants of the village of Hermanovce, eastern Slovakia. Police entered the homes of two Roma families and beat two Roma youths, handcuffed them, forced them into the trunk of a car, and drove them to the police station ... The police offered no explanation to the detainees or their families; nor did they show arrest or search warrants to justify their actions. At the police station the two youths were allegedly beaten with truncheons and kicked. They were interrogated and shown diverse items, and pressed to falsely admit to stealing some of them. They were later released the same day, apparently without having been charged with any crime. Doctors who examined them documented bruises consistent with a beating. At no point were the two detainees advised on their rights.”" ]

[ "II. RELEVANT DOMESTIC LAW", "64. Pursuant to Article 166 (1) of the Code of Criminal Procedure, where the investigator considers the investigation into a case to be completed and where the results of such investigation justify the filing of an indictment, the investigator shall give the accused, the victim, as well as their counsels and/or authorised representatives sufficient time for perusing the case file and, if necessary, for proposing any additional investigation be carried out.", "65. Article 224(1) and (2) of the Criminal Code provides that a person who by negligence and in violation of his or her duties causes a serious injury to health or the death of another person shall be punished with a prison sentence of between six months and five years or with a fine.", "66. Under Article 314e (1) of the Code of Criminal Procedure, a single judge may issue a criminal order, without a public hearing, where the facts are reliably proved by the evidence submitted.", "67. Pursuant to Article 314g (1) and (3) of the Code of Criminal Procedure, a penal order may only be challenged by the public prosecutor, the accused person or those who can file an appeal in the latter's favour. Where such an objection is filed, the judge shall hold a hearing in the case.", "68. Article 314g (2) provides that a third party who joins the criminal proceedings with a claim for damages can file an objection to a penal order only in case and to the extent that compensation is thereby granted. When a third party files such an objection, the judge shall quash the relevant part of the penal order and refer the person concerned to proceedings before a civil court.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "69. The applicant complained that the death of her husband in police custody and the subsequent failure of the Slovakian authorities to undertake a thorough and effective investigation into the circumstances surrounding his death amounted to a violation of Article 2 of the Convention, which provides as follows:", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "The parties'submissions", "70. The applicant submitted first, that her husband was deprived of his right to life as a result of his intentional shooting in police custody, and secondly, that the State authorities failed adequately to protect his right to life by undertaking a through and effective investigation into the circumstances surrounding his death.", "71. In relation to the first submission, she relied on the principle, established by the Court, that where an individual is taken into police custody in good health but is later found dead, it is incumbent on the State to provide a plausible explanation of the events leading to his death, failing which the authorities must be held responsible under Article 2 of the Convention ( Velikova v. Bulgaria, no. 41488/98, § 70, ECHR 2000 ‑ VI). Moreover, where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting with the authorities to provide a satisfactory and convincing explanation ( Hugh Jordan v. the United Kingdom, no. 24746/94, § 103, ECHR 2001 ‑ III (extracts) ).", "72. In the present case, Mr Šarišský was taken into custody in good health. It was not disputed that he received his injuries, including the fatal wound, in police custody. While in hospital he repeatedly told the applicant and other relatives that he did not shoot himself, and their testimonies unequivocally stated that he had never owned or used a gun. In the circumstances, the applicant submitted that the investigating authorities did not fulfil their obligation to provide a plausible explanation for his death. Rather, they continued to rely on a highly implausible theory which did not withstand scrutiny: namely, that Mr Šarišský had forcibly taken the gun from Lt. F. and shot himself.", "73. The applicant further contended that the investigation conducted by the authorities was plagued by omissions and inconsistencies and, consequently, the State had failed to undertake a thorough and effective investigation into her husband's death. In particular, she argued that it was unacceptable that the forensic technician was not equipped with lifting pads for conducting a gun residue test when tasked with securing a crime scene involving bodily injury caused by a firearm. However, she contended that pivotal evidence could still have been secured had Lt. F.'s hands been bagged until the appropriate gunpowder residue tests were taken.", "74. She submitted that the investigators failed properly to secure fingerprint tests; that police officers were never asked to explain how and when her husband received the serious injuries on his face and left ear; that the prosecution gave full credit to the testimony by the police officers involved in the incident, flatly denying the use of force against the victim; that the investigation failed to resolve the differences in the testimony of police officers regarding the position the victim was found in after the shooting; and finally, that there was a failure to resolve the apparent contradictions in the testimonies given by Lt. F.", "75. The Government submitted that the theory that Mr Šarišský committed suicide was not highly implausible. In particular, they submitted that on 17 August 1999 an autopsy was ordered to determine the manner of death, the angle and range of the handgun with which the victim was shot, and any other facts or circumstances relevant to the finding of an objective explanation for the death. On 20 August 1999 a forensic analysis of fingerprints, biological and chemical samples and a handwritten note was commissioned. This was followed by a reconstruction on 8 September 1999 to clarify the circumstances leading to the death of Mr Šarišský. Although the testimony of Lt. F. was considered during the reconstruction, it relied primarily on the objective evidence such as the position of the entry and exit wounds and the gunshot damage to the chair. Following the reconstruction the investigators concluded that in all probability Mr Šarišský had shot himself. The investigations conducted, and the evidence that Mr Šarišský previously had been aggressive and attempted to self-harm while in police custody, refuted the applicant's allegation that suicide was a highly implausible theory and that the investigators had relied uncritically on the testimony of Lt. F.", "76. With regard to the adequacy of the investigation, the Government submitted that a task-force from the District Criminal Police Department in Poprad was dispatched to the scene immediately after the shooting of the applicant's husband. They inspected the scene and a forensic technician secured the evidence. The forensic technician did not take samples of gunpowder residue from the hands of Lt. F. because he did not have lifting pads to secure such evidence. The Government contended that at that time lifting pads were not standard issue for criminal investigators. In any case, the applicant's husband was not at the crime scene when the forensic technician arrived as he had already been transported to hospital. The Government could not be held responsible for the fact that hospital staff washed his hands on admission. Moreover, although Lt. F.'s hands were not bagged, the Government submitted that he remained under the constant supervision of a police guard until samples of gunpowder residue were taken the following day by an expert technician from the Košice Institute of Forensic Science.", "77. The Government further submitted that the firearm was confiscated immediately for the purpose of conducting forensic tests but no classifiable or identifiable fingerprints could be lifted from it. In addition, following the death and autopsy of the applicant's husband, additional experts were appointed to inspect biological, chemical, graphological, mechanical, fingerprint and ballistic traces. Reconstructions and experiments were carried out to clarify the incident and potential witnesses were interrogated.", "78. The Government denied that there had been any contradictions in the testimonies of the police officers. Indeed, any discrepancy in the police officers'statements could be accounted for by the exclusion of the words “right side” from the English translation.", "79. The Government also denied that the investigators had relied exclusively and uncritically on the testimony of Lt. F. and had never sought to explore an alternative explanation for the fatal injuries sustained by the applicant's husband. The investigators collected all accessible evidence in order to verify the testimonies of Lt. F. and the other witnesses; reconstructions were carried out to investigate various possible alternatives and the authorities concluded, on the basis of the available evidence, that Mr Šarišský's injuries were self-inflicted. The injuries to Mr Šarišský's face and left ear were considered irrelevant as they had no relation to the cause of death.", "80. Finally, the Government submitted that the applicant had access to the investigation. Under domestic law, it was open to her to make motions concerning evidence-taking or submission of supplementary evidence, comment on all evidence taken and consult and review the case file. Her representative participated in parts of the criminal proceedings and raised no objection to their conduct. Furthermore, the applicant was entitled to make motions for further investigation.", "81. The Government therefore argued that there was an effective, impartial, thorough and careful investigation into the death of Mr Šarišský which led to the person responsible, Lt. F., being identified and punished.", "B. The Court's assessment", "I. The death of Mr Šarišský", "(a) General principles", "82. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted. The circumstances in which the deprivation of life may be justified must therefore be strictly construed. Moreover, the object and purpose of the Convention as an instrument for the protection of individuals also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective ( McCann and Others v. the United Kingdom, 27 September 1995, §§ 146 – 147, Series A no. 324).", "83. In light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also the surrounding circumstances.", "84. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” ( Avsar v Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may, however, follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact ( Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( Salman v. Turkey [ GC], no. 21986/93, § 99, ECHR 2000 ‑ VII).", "85. Consequently, where an individual is taken into police custody in good health and is found to be injured on release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused (see, for example, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V) and to produce evidence casting doubt on the veracity of the victim's allegations, particularly if those allegations are backed up by medical reports ( Abdülsamet Yaman v. Turkey, no. 32446/96, § 43, 2 November 2004). The authorities'obligation to account for an individual in custody is particularly stringent where that individual dies (Salman v. Turkey, cited above, at § 99; Keenan v. the United Kingdom, no. 27229/95, § 91, ECHR 2001 ‑ III).", "86. Moreover, in addition to the obligation on States to account for injuries or deaths in police custody, the Court recalls that the State is also under a positive obligation to take all reasonable measures to ensure that the health and well-being of persons in detention are adequately secured by, among other things, providing them with the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq., and Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI) and taking reasonable measures to minimise a known suicide risk ( Keenan v. the United Kingdom, no. 27229/95, § 97, ECHR 2001 ‑ III).", "(b) Application to the present case", "87. Mr Šarišský was twenty-one years old and in good health when he was taken into custody at approximately 8 p. m. on 12 August 1999. Several hours later he was rushed to hospital with a gunshot wound to his abdomen and injuries to his neck, right shoulder, face and ear. The fatal shot was fired from Lt. F.'s police service pistol while Mr Šarišský was alone with Lt. F. in his office. Mr Šarišský and Lt. F. clearly had previous dealings with each other (see, for example, paragraph 11), and the evidence would suggest that Lt. F. volunteered to interrogate Mr Šarišský while he was off duty, without first obtaining the permission of his commanding officer.", "88. In the course of the investigation into his death, at least three accounts were given of how Mr Šarišský was shot. Lt. F. indicated that Mr Šarišský had taken his gun and shot himself. Mr Šarišský allegedly told the investigator that Lt. F. had given him the gun and he had shot himself. The applicant, on the other hand, submitted that her husband told her that Lt. F. had shot him. In carrying out the reconstruction on 8 September 1999, the ballistics experts concluded that Mr Šarišský “most probably” shot himself. Further reconstructions were carried out to determine how Mr Šarišský was able to forcibly remove Lt. F.'s service pistol. No attempt appears to have been made, however, to investigate the allegation made by Mr Šarišský himself, namely that Lt. F. gave him the firearm. Moreover, the Court also observes that no explanation was given for the inconsistencies in the different statements provided by Lt. F. in the course of the domestic proceedings.", "89. Consequently, the Court has grave concerns both about the circumstances surrounding Mr Šarišský's death and the extent to which the authorities have provided “a satisfactory and convincing explanation” (see Salman v. Turkey, cited above, § 99). The inherent improbability of the theory that, while in police custody and while temporarily left alone during his interrogation by Lt. F, Mr. Šarišský would compose a suicide note and on Lt.F's return seize his pistol from his belt and use it to shoot himself in the abdomen gives serious cause to doubt that the authorities have discharged the burden imposed on them under the Convention. However, the Court does not consider that it is necessary to reach any final determination of this issue. Even if the Court were to accept that Mr Šarišský committed suicide as alleged, it notes that the obligation to protect the health and well-being of persons in detention clearly encompasses an obligation to take reasonable measures to protect them from harming themselves ( Keenan v. the United Kingdom, cited above, § 97). Although there is insufficient evidence to enable the Court to find that the authorities either knew or ought to have known that Mr Šarišský was a suicide risk on the night of his death, the Court notes that there are certain basic precautions which police officers and prison officers should be expected to take in all cases in order to minimise any potential risk. First, the Court would observe that compelling reasons must be given as to why the interrogation of a suspect is entrusted to an armed police officer. For the Court, the facts of the present case disclose no justification whatsoever for allowing Lt. F. to remain in possession of his firearm during the interrogation of Mr Šarišský, a young man who had been arrested on suspicion of bicycle theft. Secondly, at the time of Mr Šarišský's death there were regulations in force which required police officers to secure their service weapons in order to avoid any “undesired consequences”. The domestic courts held that Lt. F's failure properly to secure his service weapon amounted to negligence which resulted in the death of Mr Šarišský. Consequently, the Court finds that even if Mr Šarišský committed suicide in the manner described by the Government and the investigative authorities, the authorities were in violation of their obligation to take reasonable measures to protect his health and well-being while he was in police custody.", "90. There has accordingly been a violation of Article 2 of the Convention under its substantive limb.", "The adequacy of the investigation", "(a) General principles", "91. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. Whatever mode is employed, however, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII).", "92. For an investigation into an alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 325, ECHR 2007 ‑ ..., Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21954/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998 ‑ IV, pp. 1778-79, §§ 83-84, and the Northern Irish judgments, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, § 120, and Kelly and Others v. the United Kingdom, no. 30054/96, § 114, both of 4 May 2001 ).", "93. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Oğur, cited above, § 88). This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy providing a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, Salman, cited above, § 106; Tanrıkulu v. Turkey [GC], no. 23763/94, § 1 09, ECHR 1999-IV; and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see the Northern Irish judgments concerning the inability of inquests to compel the security-force witnesses directly involved in the use of lethal force, for example, Hugh Jordan, cited above, § 127).", "94. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, pp. 2439-40, §§ 102-04; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV; Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, for example, Hugh Jordan, cited above, §§ 108 and 136-40).", "95. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82; Oğur, cited above, § 92; Gül, cited above, § 93; and the Northern Irish judgments, for example, McKerr v. the United Kingdom, no. 28 883/95, § 148, ECHR 2001 ‑ III).", "(b) Application to the present case", "96. The Court observes that following the shooting of Mr Šarišský, Lt. F. immediately called for the emergency services. An investigation task-force was formed and called promptly to the police station to inspect the scene of the shooting. The inspection began at 11.50 p.m., very shortly after the incident.", "97. Nevertheless, the Court finds that there were a number of deficiencies in the criminal investigation which undermined its ability to establish who was responsible for Mr Šarišský's death.", "(i) Independence of the police investigation", "98. The criminal investigation was supervised by police officers from the Department of Supervision and Inspection at the Ministry of the Interior. The Court observes that these police officers were under the command of the Ministry of the Interior. Even if the Court were to assume that these officers were sufficiently independent for the purposes of Article 2 of the Convention, it is concerned that they did not commence their investigation until 13 August 1999, when an officer interviewed the wounded Mr Šarišský in hospital. The task-force that was formed immediately after the shooting was comprised of police officers from Poprad, which was the district in which Lt. F. was based. It was these officers who conducted the initial forensic examination of the scene. Moreover, after the Department of Supervision and Inspection took over, officers from Poprad continued to be involved in the investigation. In particular, it is clear from the record of the reconstruction conducted on 4 May 2000 that the technicians carrying out the experiments were from the Criminal Police Department in Poprad, which was Lt. F.'s department. Further investigations were also carried out by the Regional Investigation Office in Prešov.", "99. The Court recalls the extremely high standard established by the Grand Chamber in Ramsahai v the Netherlands (cited above, §§ 333 -341). Whilst the Court acknowledges that the local police cannot remain passive until independent investigators arrive, in Ramsahai v the Netherlands the Grand Chamber indicated that in the absence of any special circumstances, immediate action by local police should not go beyond securing the area in question. In the present case, the task-force examined the crime scene, photo-documented it and recovered fingerprints and ballistic, biological and material evidence. They did not, however, have the necessary technical equipment to test Lt. F.'s hands for gunshot residue, and instead permitted him to return home, although they submitted that he remained under the constant supervision of a police guard. No further details have been provided concerning the identity of this guard or the extent of the supervision. However, as police officers from the Department of Supervision and Inspection at the Ministry of the Interior did not arrive until the following day, it must be assumed that the guard was also from Lt. F.'s department in Poprad.", "100. The Court is also concerned about the continued involvement of technicians from Lt. F.'s department in Poprad in the investigation, most notably during the reconstruction carried out on 4 May 2000. Their involvement diminished the investigation's appearance of independence and this could not be remedied by the subsequent involvement of the Department of Supervision and Inspection. The Court therefore finds that the investigation was not sufficiently independent.", "( iii ) Adequacy of the investigation", "101. Moreover, the Court finds that the failure of the investigators to give serious consideration to Mr Šarišský's claim that he shot himself after Lt. F. handed him the gun amounted to a serious deficiency in the Šarišský's death. The allegation that Lt. F. voluntarily gave Mr Šarišský his gun amounts to a much more serious allegation against Lt. F than that of causing injury to health by negligence, and yet the investigators do not appear to have considered it, preferring instead to rely on Lt. F.'s claim that Mr Šarišský forcibly took the weapon from him.", "102. The Court further observes that in a case such as the present, where there were no independent eyewitnesses to the incident, the taking of forensic samples was of critical importance in establishing who was responsible for Mr Šarišský's death ( Ramsahai v the Netherlands, cited above, § 331). If the investigators had brought the necessary equipment to the police station, samples of gunpowder residue could have been taken from Lt. F.'s hands in the immediate aftermath of the shooting. If such samples had been taken, it might have been possible either to exclude or confirm that he pulled the trigger. Instead, samples were not taken until the following day. Although the Government submitted that Lt. F. remained under the supervision of a police guard until the samples were taken, the Court has concerns about the independence of the guard, who was most likely a police officer from Lt. F.'s department (see paragraph 98). Consequently, the result of the gunpowder residue test cannot be relied on. Although a ballistics test later confirmed that Mr Šarišský “most probably” shot himself, if conducted properly the gunpowder residue test could have been conclusive. Thus, there was a failure by the investigators to take reasonable steps to secure evidence concerning the incident which in turn undermined the ability of the investigation to determine beyond any doubt who was responsible for Mr Šarišský's death.", "103. Finally, the Court observes that very little attention appears to have been paid to the applicant's claim that her husband had injuries to his face, shoulder and ear, even after the autopsy confirmed the presence of these injuries. The Government have subsequently indicated that these injuries were ignored because they were not relevant to determining the cause of death. They were, however, relevant to determining whether Mr Šarišský was ill-treated by police officers either during his arrest or in police custody, which in turn is relevant both to an investigation into a potential violation of Article 2 of the Convention and to a separate allegation under Article 3. The Court therefore finds that the failure to investigate the applicant's claim that her husband was ill-treated by police officers prior to the shooting amounted to a serious shortcoming in the criminal investigation and prevented the authorities from obtaining a clear and accurate picture of the events leading to Mr Šarišský's death.", "104. In light of the above, the Court concludes that no meaningful investigation was conducted at the domestic level capable of establishing the true facts surrounding the death of Mr Šarišský. It follows that there has also been a violation of the procedural limb of Article 2 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "105. The applicant complained under Article 3 of the Convention that her husband was ill-treated in police custody and that the authorities failed to carry out an adequate investigation into that ill-treatment. Article 3 of the Convention provides as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "106. Having considered the applicant's complaints under Article 2 of the Convention, the Court finds that it is not necessary to make a separate finding under Article 3.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "107. The applicant complained that she had not had an effective remedy for her complaints under Articles 2 and 3 within the meaning of Article 13 of the Convention, which provides as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "108. First, the applicant submitted that the authorities failed to carry out a competent and thorough investigation of the violation of Article 2, which constituted a separate and independent violation of her right to an effective remedy.", "109. Secondly, the applicant submitted that under Slovak law no effective remedy existed in the event that the prosecution and investigation authorities did not fulfil their responsibility to carry out a thorough and effective investigation of alleged violations of rights protected by the Convention. She further submitted that civil damages did not amount to an effective remedy where there had been a death at the hands of State agents (see, for example, Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI).", "110. The Court notes that, despite her claim that civil damages could not be regarded as an effective remedy where a death had occurred at the hands of State agents, the applicant instituted civil proceedings which were discounted on the grounds of the procedural shortcomings in her pleadings. The Court finds that the essence of the applicant's complaints under Article 13 relates to the alleged inadequacy of the investigation which took place and the absence of any remedy to ensure there was an effective investigation into her husband's death such as to enable her effectively to pursue a civil action for damages arising out of the death. As such, the Court considers that the complaints under Article 13 are a restatement of the applicant's complaints under Article 2. It does not, therefore, consider it necessary to make a separate finding under Article 13 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "111. The applicant complained that her rights, and the rights of her deceased husband, under Articles 2, 3 and 13 of the Convention were violated in conjunction with Article 14 on grounds of ethnic origin. Article 14 of the Convention provides as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties'submissions", "112. The applicant submitted that her husband's death was caused by an agent of the State and the investigation which followed was plagued by severe deficiencies and discrepancies and, as a result, it failed to establish the cause of his death. She submitted that the fact that her husband was a Romani man, coupled with the legacy of widespread and systematic abuse of Roma in police custody, created an obligation on the State to investigate a possible racist motive behind his death. The State failed to do so in violation of their procedural obligations under Article 14 of the Convention.", "113. The Government contested that argument. They submitted that there was no evidence to suggest that in the present case Mr Šarišský was subjected to significantly harsher treatment by the police on account of his Roma ethnicity.", "B. The Court's assessment", "1. Substantive aspect", "114. Discrimination is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Discrimination on account of, inter alia, a person's ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment ( Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-...; and Timishev v. Russia, nos. 55762/00 and 5597 4/00, § 56, ECHR 2005-...). The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures ( Timishev, cited above, § 58).", "115. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III; and Timishev, cited above, § 57).", "116. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others v. Bulgaria that in proceedings before it there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties'submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.", "117. Turning to the facts of the present case, the Court considers that whilst Lt. F.'s conduct during the applicant's detention calls for serious criticism, that behaviour is of itself an insufficient basis for concluding that his conduct was racially motivated. Further, in so far as the applicant has relied on general information about police abuse of Roma in Slovakia, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the treatment inflicted on the applicants was motivated by racism (see Nachova and Others v. Bulgaria, cited above, § 155). Lastly, the Court does not consider that the failure of the authorities to carry out an effective investigation into the alleged racist motive for the incident should shift the burden of proof to the respondent Government with regard to the alleged violation of Article 14 in conjunction with the substantive aspect of Article 2 of the Convention. The question of the authorities'compliance with their procedural obligation under Article 14 is a separate issue, to which the Court will revert below (see Nachova and Others v. Bulgaria, cited above, § 157).", "118. Consequently, the Court finds that there has been no violation of Article 14 of the Convention taken in conjunction with Article 2 in its substantive aspect.", "2. Procedural aspect", "119. The Court has held that when investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, mutatis mutandis, Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). In order to maintain public confidence in their law enforcement machinery, Contracting States must ensure that in the investigation of incidents involving the use of force a distinction is made both in their legal systems and in practice between cases of excessive use of force and of racist killing ( Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 146, ECHR 2005 ‑ VII ).", "120. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute (see, mutatis mutandis, Shanaghan v. the United Kingdom, no. 37715/97, § 90, ECHR 2001-III, setting out the same standard with regard to the general obligation to investigate). The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence.", "121. In the present case, the Court has already found that the Slovakian authorities violated Article 2 of the Convention in that they failed to conduct a meaningful investigation into the death of Mr Šarišský (see paragraphs 94 –103 above). It therefore considers that it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and his death.", "122. The Court notes with concern the contemporaneous reports documented at paragraphs 57 et seq. above which relate to allegations of police brutality towards Roma in Slovakia. In respect of persons of Roma origin, it would not exclude the possibility that in a particular case the existence of independent evidence of a systemic problem could, in the absence of any other evidence, be sufficient to alert the authorities to the possible existence of a racist motive. However, in the present case the Court is not persuaded that the objective evidence is sufficiently strong in itself to suggest the existence of such a motive. It also notes that, unlike the situation obtaining in Nachova and Others v. Bulgaria, the authorities did not have before them any concrete information capable of suggesting that there had been any racial motive behind the applicant's arrest, detention, or, ultimately, his death ( Vasil Sashov Petrov v. Bulgaria, no. 63106/00, § 72, 10 June 2010 ). Moreover, there is no indication that the applicant made allegations of racial bias at any point during the investigation (compare with Karagiannopoulos v. Greece, no. 27850/03, § 78, 21 June 2007; Turan Cakir v. Belgium, no. 44256/06, § 80, 10 March 2009; Beganović v. Croatia, no. 46423/06, § 97, ECHR 2009 ‑ ... (extracts); and Sashov and Others v. Bulgaria, no. 14383/03, § 84, 7 January 2010 ).", "123. For these reasons, the Court does not consider that the authorities had before them information that was sufficient to bring into play their obligation to investigate possible racist motives on the part of the officers. It follows that there has been no violation of Article 14 of the Convention taken in conjunction with Article 2 in that respect.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "124. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "125. The applicant claimed 45,000 euros (EUR) in respect of non-pecuniary damages : EUR 30,000 in respect of the victim's suffering and EUR 15,000 in her personal capacity. The applicant contended that her claims were in line with the standards set by the Court in the cases of Akkoç v. Turkey, nos. 22947/93 and 22948/93, ECHR 2000 ‑ X and Nachova and Others v. Bulgaria (cited above).", "126. The applicant also claimed EUR 289,225 in respect of pecuniary damages. She submitted that although her husband was unemployed at the time of his death, he was young and in good health and therefore could have secured employment. She submitted that his death had impacted her financial situation and would continue to do so for the forty-one remaining years during which her husband would have been able to secure wages from employment. The claim for EUR 289,225 therefore represented past, present and future wage loss based on the age of death of the victim until the official retirement age in Slovakia (62 years).", "127. The Government contended that the applicant's claim for non-pecuniary damage was manifestly overstated.", "128. The Government submitted that the applicant's claim for lost earnings was unfounded as her husband was unemployed at the date of his death. Moreover, they submitted that the applicant had the opportunity to claim for pecuniary loss during the criminal proceedings against Lt. F. and/or in civil proceedings but her claims were struck out due to procedural irregularities.", "129. In respect of the applicant's claim for non-pecuniary damage, the Court recalls that it has found a violation of Article 2 of the Convention. It has also found that the authorities failed to provide the applicant with an effective remedy, contrary to Article 13. In the circumstances, having regard to awards made in comparable cases, the Court awards the applicant the full amount claimed.", "130. In respect of the applicant's claim for pecuniary loss, the Court observes that she has not submitted any details of her late husband's previous employment record or, as she has since remarried, of her current husband's employment situation. It is therefore impossible for the Court properly to assess the financial impact of her husband's death. Consequently, the Court finds that the applicant has not substantiated her claim for pecuniary loss.", "B. Costs and expenses", "131. The applicant claims EUR 10,962 in respect of legal costs and expenses.", "132. The Government submit that this claim is unreasonably high.", "133. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the applicants the sum of EUR 8,000 for the proceedings before the Court.", "C. Default interest", "134. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are the next-of-kin of several Roma who died or disappeared in the circumstances described below.", "A. Incident at sea and the ensuing investigation and criminal proceedings", "7. On the night of 15 August 1999 around seventy Roma boarded the boat “Miss Pat” on the Montenegrin coast with the intention of reaching Italy. A few hours later the boat sank owing to the large number of passengers.", "8. By 30 August 1999 one of the passengers had been found alive on the Montenegrin shore, and thirty-five bodies had been found in the sea, thirteen of which were identified by their relatives. The forensic specialists who had performed autopsies on the bodies by 30 August 1999 stated that the cause of death could not be established with certainty on the basis of autopsies alone. In their opinion, however, the cause of death was drowning.", "9. On 1 September 1999 the Court of First Instance ( Osnovni sud ) in Bar initiated a formal judicial investigation ( rješenje o sprovođenju istrage ) against seven individuals on suspicion of illegally crossing the State border in connection with reckless endangerment.", "10. By 21 October 1999 the investigating judge had (a) questioned two suspects who were available to the authorities at the time, as well as thirty other individuals in relation to the incident, including the eleventh applicant; (b) requested that some other witnesses be questioned by the relevant authorities in Serbia; and (c) asked for the autopsy reports, an expert opinion on the capacity of the boat and a report on the weather conditions on the night of the incident. The eleventh applicant was questioned on 10 September 1999. She stated that she had been living with her brother and sister-in-law and their children in Kosovo, but that her brother and sister-in-law had decided to go to Montenegro. They had not called her from Podgorica or mentioned that they had intended to go to Italy. She also stated that she had not recognised them amongst the bodies found, but had recognised her brother ’ s arm in one of the photographs shown to her during questioning. Being illiterate, she had “signed” the minutes of the hearing by giving a fingerprint.", "11. On 21 October 1999 the State prosecutor in Bar lodged an indictment with the Court of First Instance in Bar against the seven suspects.", "12. On 29 October 1999 the court decided that it lacked territorial competence to deal with the case and transferred it to the Court of First Instance in Kotor. On 6 December 1999 the High Court ( Viši sud ) in Podgorica declared that the court in Bar was territorially competent to process the case and the case was returned.", "13. By the end of 2002 the court in Bar had decided that two defendants still at large would be tried in their absence and appointed representatives for them. The remaining five defendants appeared before the court.", "14. Between 25 December 2002 and 24 September 2003 ten trial hearings ( glavni pretres ) were scheduled, five of which took place. Four were adjourned because some of the defence lawyers, defendants, witnesses and an interpreter did not attend court; there is no information in the case file about one of the hearings. During the hearings that did take place, the court questioned four defendants and eleven witnesses.", "15. On 24 September 2003 the court decided to recommence the trial hearing due to the passage of time. By 14 April 2004 ten hearings had been scheduled, six of which took place. Four were adjourned because one of the defence lawyers and some of the witnesses did not attend court. During the hearings that did take place, the court read out the indictment again, questioned four defendants and sixteen witnesses, including the eleventh applicant, and read out the earlier statements made by the witnesses; the fifth defendant chose to remain silent. The eleventh applicant was heard on 8 October 2003. She stated that she had come to Podgorica with her brother and his family and had had no idea that her brother and his wife had intended to go to Italy. When asked to explain the differences between that and her previous statement of 10 September 1999, she stated that she was certain that they had all been together since they had all been living together in one tent. She also confirmed that she was illiterate.", "16. On 14 April 2004 the Supreme State Prosecutor ( Vrhovni državni tužilac ) in Podgorica instructed the State prosecutor in Bar to specify the indictment in terms of the facts and legal classification of the criminal offences, after which the court in Bar would declare that it lacked competence to deal with the case and would transfer it to the High Court in Podgorica (hereinafter “the High Court”), as the competent court to deal with it. Accordingly, the indictment was amended and the case file transferred to the High State Prosecutor ( Viši državni tužilac ) and the High Court.", "17. On 26 May 2004 the High State Prosecutor requested that an investigation be opened ( zahtjev za sprovođenje istrage ) against the same seven people and another individual, Z, on suspicion of committing reckless endangerment.", "18. By 20 October 2004 the High Court had questioned four of the defendants, while the fifth had chosen to remain silent. It also ordered that the remaining three defendants be brought before the court.", "19. On 11 November 2004 an investigating judge of the High Court decided to initiate a formal judicial investigation against the eight individuals, a decision which was upheld by the High Court on 25 November 2004.", "20. On 25 February 2006 the High State Prosecutor urged the investigating judge to finish the investigation.", "21. On 28 March 2006 an expert witness issued an opinion on the capacity of the boat.", "22. On 31 October 2006 the High State Prosecutor charged eight defendants with reckless endangerment under Article 338 § 2 in connection with Article 327 §§ 1 and 3 of the Criminal Code (see paragraphs 43-44 below).", "23. Between 24 and 28 November 2006 the indictment was served on four of the defendants.", "24. On 15 January 2007 the president of the chamber informed the president of the High Court that a trial hearing could not be scheduled yet as the indictment had not yet been served on all the defendants.", "25. By 15 February 2008 the High Court had issued a national arrest warrant ( potjernica ) against one of the defendants, and had attempted to serve one on the other three, one of whom was in detention in Podgorica at the time. The other two were based in Serbia and Bosnia and Herzegovina respectively.", "26. On 3 April 2008 the High Court rejected the indictment against Z (the defendant based in Serbia), a decision which was upheld by the Court of Appeal on 26 May 2008.", "27. By 28 September 2009 the High Court had decided that the two defendants at large, one of whom was based in Bosnia and Herzegovina, would be tried in their absence.", "28. At the first trial hearing on 28 September 2009 one of the defendants, X, stated that he was illiterate and did not understand the indictment. At the request of his lawyer the hearing was adjourned until further notice, so that the indictment could be translated into Romani. By 31 October 2009 the translation of the indictment into Romani had become available.", "29. In the course of 2010 seven hearings were scheduled. One was held on 8 October 2010, during which the indictment was read out and four defendants were heard, the fifth having chosen to remain silent. Six hearings scheduled for 5 February, 29 April, 4 June, 2 July, 17 November and 17 December 2010 were adjourned because some of the defendants, defence lawyers, the interpreter for Romani and a witness did not attend court.", "30. On 25 January 2011 another judge of the High Court took over the case. In the course of 2011 eight hearings were scheduled, seven of which were adjourned: (a) three because there was no permanent court interpreter for Romani; (b) two because the defence lawyers and witnesses did not attend court; (c) one because one defendant and several defence lawyers did not attend court and an interpreter had not yet been appointed; and (d) one because of changes to the Criminal Procedure Code, which made the relevant court panel incomplete. One hearing was held on 21 November 2011, during which four defendants were heard and their earlier defence statements made in 1999, 2003, 2004 and 2010 read out. The fifth defendant chose to remain silent.", "31. In the course of 2012 seven hearings were scheduled, two of which were adjourned because one defendant, a defence lawyer, some of the witnesses, including the seventh applicant, and/or the interpreter did not attend court. Five hearings were held, two of which by 24 September 2012, when several witnesses were heard. On 24 September 2012 the trial hearing was recommenced due to “the passage of more than three months”. During that hearing and the subsequent two hearings four defendants and several witnesses were heard again, and a number of written documents were read out, including the indictment, the defendants ’ earlier statements and witness statements from 1999, 2003 and 2012, reports by the Kotor and Budva police directorates ( odjeljenja bezbjednosti ), as well as information provided by the Radio and Television of Montenegro and the Bar Public Information Centre. The fifth defendant remained silent.", "32. In the course of 2013 nine hearings were scheduled, five of which were adjourned because one of the defendants, two lawyers, an expert witness, a judge, and/or the interpreter did not attend. The lawyers were fined 500 euros (EUR) for their unjustified absence. By 18 December 2013 three hearings had been held, during which one expert witness was heard, and a number of other pieces of documentary evidence were read out, such as an earlier statement of another expert witness, earlier statements of other witnesses from 1999, 2003 and 2004, including the statements of the eleventh applicant, autopsy reports and reports from the Port of Bar of 1995 and 1998 relating to the boat. On 18 December 2013 the trial hearing was recommenced due to the passage of time. Four defendants and one of the expert witnesses were heard and their earlier statements read out.", "33. In the course of 2014 five hearings were scheduled, two of which were adjourned because the interpreter and one of the expert witnesses did not attend court and because one defendant was justifiably absent. By 4 June 2014 one hearing had been held, at which earlier statements of witnesses, including the eleventh applicant ’ s statements, official reports, autopsy reports and experts witness statements were read out. On 4 June 2014 the trial hearing was recommenced due to the passage of time. At that and the subsequent hearing held in 2014 the court read out the indictment, the defendants ’ earlier statements and some witness statements, including the eleventh applicant ’ s, as well as other written evidence. One of the witnesses was also heard.", "34. On 24 July 2014 the High Court acquitted all the accused for lack of evidence. On 10 November 2014 the High State Prosecutor appealed against that judgment. There is no information in the case file as to the outcome of the appeal.", "B. The Ombudsman ’ s involvement", "35. On an unspecified date prior to 7 December 2009 the Roma Centre complained to the Ombudsman, asking for the criminal proceedings to be expedited and the responsible persons punished, as well as for a DNA analysis of the bodies which had been buried.", "36. On 7 December 2009 the Ombudsman issued a report in this regard noting, in substance, that the investigation had lasted for more than seven years and that ten years after the impugned event the criminal proceedings had not yet been terminated, which was unjustified. He recommended that the High Court undertake all necessary steps to terminate the proceedings as soon as possible.", "37. On 21 December 2010 the Ombudsman enquired what had been done in the meantime. The judge in charge informed him of the hearings scheduled between October and December 2010.", "C. Other relevant facts", "38. On 19 August 1999 the only surviving passenger was found guilty of boarding the boat on 16 August 1999 with the intention of illegally crossing the border to Italy and was fined by the Misdemeanour Court ( Sud za prekršaje ) in Kotor.", "39. In the course of 2002 a number of family members of those who had disappeared, two of them applicants in the present case, urged that the proceedings at issue be expedited. Some of them claimed that their next-of-kins were alive but had been trafficked. It appears that some others also hoped that their family members might still be alive.", "40. On 15 June 2011 the president of the High Court requested the Ministry of Justice to appoint a permanent court interpreter for Romani as soon as possible, stressing that one of the reasons for the criminal proceedings in question having “lasted too long” had been the absence of an adequate interpreter for Romani.", "41. It would appear that on several occasions the Roma Centre requested the High Court to expedite the proceedings, and that on 16 August 2010 it issued a statement that the investigation had not been effective.", "42. The eleventh applicant ’ s initial representative submitted an authority form signed by her. He also specified that her two sons, two daughters-in-law and five grandchildren had died or disappeared in the impugned event." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Criminal Code ( Krivični zakonik, published in Official Gazette of the Republic of Montenegro - OG RM - nos. 70 ⁄ 03, 13 ⁄ 04, 47 ⁄ 06, and the Official Gazette of Montenegro - OGM - nos. 40 ⁄ 08, 25 ⁄ 10, 73 ⁄ 10, 32 ⁄ 11, 64 ⁄ 11, and 40 ⁄ 13)", "43. Article 327 § 1 provides, inter alia, that endangerment of a human life or a human body by a dangerous activity or by dangerous means is punishable by imprisonment of between six months and five years. Article 327 § 3 provides that if the offence is committed in a place where there is a large number of people ( veći broj ljudi ), it is punishable by imprisonment of between one and six years.", "44. Article 338 § 2 provides that if the offence defined in Article 327 §§ 1 to 3 results in the death of one or more persons, it is punishable by imprisonment of between two and twelve years.", "B. Criminal Procedure Code ( Zakonik o krivičnom postupku, published in OG RM nos. 71 ⁄ 03, 07 ⁄ 04, and 47 ⁄ 06)", "45. Article 8 provides, inter alia, that parties to criminal proceedings who do not speak the official language of the court may use their own language instead, in which case both a translation of all the documents as well as interpretation will be provided.", "46. Article 16 § 2 provides that the court has a duty to conduct proceedings without delay and to prevent any abuse of the rights of the parties.", "47. Articles 19, 20 and 44 provide, inter alia, that formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of publicly prosecutable offences the authorised prosecutor is the State prosecutor. His or her authority to decide whether or not to press charges is bound by the principle of legality, which requires that he or she must act whenever there is a reasonable suspicion that a publicly prosecutable offence has been committed.", "48. Articles 19 and 59 provide, inter alia, that should the State prosecutor decide that there is no basis on which to prosecute, he or she must inform the victim of that decision, and the latter then has the right to take over the prosecution of the case – as a “subsidiary prosecutor” – within eight days of being notified of that decision. When notifying the victim of the decision not to prosecute, the State prosecutor must inform him or her what actions he or she may undertake as subsidiary prosecutor.", "49. Article 62 provides that a subsidiary prosecutor has the same rights as the State prosecutor, except for those which the State prosecutor has as a State body.", "50. Article 266 provides that if the investigation is not terminated within six months, an investigating judge must inform the president of the court of the reasons for the delay. If needed, the president will undertake measures to terminate the investigation.", "51. Article 267 provides, inter alia, that a victim may file a request with an investigating judge to conduct an investigation.", "52. Article 272 provides that parties to proceedings and victims are entitled to complain about delays in the proceedings and other irregularities to the president of the court, who will look into the complaint and, if requested, inform him or her of what has been done in that regard.", "53. Article 273 provides that once an investigation is over, court proceedings may only be initiated on the basis of the indictment of the State prosecutor or the victim in his or her capacity as subsidiary prosecutor.", "54. Article 291 § 2 provides that the president of the chamber must schedule a trial hearing within two months of receiving the indictment. If the trial hearing is not scheduled within the time-limit the president of the chamber must inform the president of the court why, and the latter will then, if needed, undertake measures to schedule it.", "55. Articles 310 to 319 set out details as to the holding and adjournment of trial hearings, including in cases where various parties to the proceedings do not attend court. Article 317 § 3 provides, in particular, that if the trial hearing has been adjourned for more than three months or is to be held before another president of the bench, it must be started afresh and all witnesses reheard and documentary evidence reassessed ( i svi dokazi se moraju ponovo izvesti ).", "C. Courts Act ( Zakon o sudovima, published in OG RM nos. 05 ⁄ 02, 49 ⁄ 04, 22 ⁄ 08, 39 ⁄ 11, 46 ⁄ 13 and 48 ⁄ 13)", "56. Section 84 provides, inter alia, that the president of the court is responsible for organising the work of the court and undertakes measures to ensure prompt and timely performance of duties in the court.", "D. Obligations Act ( Zakon o obligacionim odnosima, published in OGM nos. 47 ⁄ 08 and 04 ⁄ 11)", "57. The Obligations Act, which entered into force in 2008, was partially amended in April 2017. The relevant provisions, as in force at the time, provided as follows.", "58. Sections 148 to 216 set out details as regards compensation claims.", "59. Sections 148 and 149 set out the different grounds for claiming compensation for both pecuniary and non-pecuniary damage. In particular, section 148(1) provided that whoever caused damage to somebody else was liable to compensation, unless he or she could prove that the damage was not his or her fault.", "60. Section 166(1) provided that any legal entity, including the State, was liable for any damage caused by one of “its bodies”.", "61. Sections 206 and 207 provided, inter alia, that anyone who suffered fear, physical pain or mental anguish as a consequence of the violation of his or her personal rights or owing to the death of someone close to them, was entitled, depending on the duration and intensity, to sue for damages in the civil courts and, in addition, request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.", "62. Section 208(1) and (2) provided that in the event of a person ’ s death the courts could award just satisfaction for mental anguish to their closest family, including their brothers and sisters, provided that they had been living together.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "63. The applicants complained, under various Articles of the Convention, that the relevant Montenegrin bodies had failed to promptly and effectively investigate the deaths and/or disappearances of their family members and prosecute those responsible. Being the master of the characterisation to be given in law to the facts of any case before it (see Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)), the Court considers that the applicants ’ complaint falls to be examined under Article 2 of the Convention, which reads as follows:", "“1. Everyone ’ s right to life shall be protected by law. ...”", "64. The Government denied that there had been a violation of the applicants ’ rights.", "A. The first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth and thirteenth applicants", "65. On 10 June 2014 the Government submitted their observations on the admissibility and merits. They were sent to the applicants, who were invited to appoint a lawyer, given that the initial representative was not a lawyer for the purposes of Rule 36(2) and 4(a), and submit written observations with any claims for just satisfaction by 23 September 2014.", "66. By a registered letter dated 28 November 2014 the Court reminded the applicants that their observations had not been submitted. They were invited to inform the Court by 5 January 2015 at the latest whether they wished to pursue their application and to do so unequivocally. They were invited to comply with the Court ’ s previous request by the same date if that was the case. They were also warned, in accordance with Article 37 § 1 (a) of the Convention, that the Court could strike a case out of its list of cases if it concluded that an applicant did not intend to pursue his or her application.", "67. Between 19 and 22 December 2014 the third, fifth, sixth, tenth, eleventh and thirteenth applicants received the Court ’ s letter. The rest of the letters were returned to the Court. The twelfth applicant was said to no longer live at the address provided initially, the seventh and eight applicants ’ address was non-existent and the first, second and ninth applicants “did not ask for the letter” ( nisu tražili ). Nothing was specified in respect of the fourth applicant, but it would appear that she did not ask for the letter either.", "68. The eleventh applicant complied with the Court ’ s request within the requisite time-limit. None of the other applicants responded.", "69. The Court considers that, in these circumstances, the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth, and thirteenth applicants may be regarded as no longer wishing to pursue the application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of their complaints to be continued.", "70. In view of the above, it is appropriate to strike the application out of the list in so far as it concerns the complaints of the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, twelfth and thirteenth applicants.", "B. The eleventh applicant", "1. Admissibility", "a. Compatibility ratione personae", "i. Want of an applicant", "α) The parties ’ submissions", "71. The Government submitted that the application was inadmissible for want of an applicant given that the eleventh applicant ’ s initial representative had not had a valid authorisation. They relied in this regard on the Court ’ s decision in Post v. the Netherlands ((dec.), no. 21727/08, 20 January 2009). In particular, the authority form submitted by the initial representative on her behalf was signed, whereas the second authority form, which was provided by the lawyer and notarised, contained her fingerprint instead and an explanation by the notary that she was illiterate. The Government averred that that clearly indicated that the signature in the first authority form had been forged.", "72. The eleventh applicant, for her part, confirmed that she had authorised the initial representative to lodge an application on her behalf, and had only appointed a lawyer instead when invited to do so by the Court. Notably, she had been told at the time that all she had to do in order to authorise the first representative had been to provide him with her ID, birth certificate and her deceased family members ’ birth certificates, which she had duly done. In any event, she had explicitly accepted and approved of all the actions undertaken by him on her behalf.", "73. The Serbian Government, which intervened in the case, made no comment in this regard.", "β) The Court ’ s conclusion", "74. The relevant general principles in this regard are set out in Lambert and Others v. France ([GC], no. 46043/14, § § 89-91, ECHR 2015 (extracts)).", "75. In particular, the Court notes that where applicants choose to be represented under Rule 36 § 1 of the Rules of Court rather than lodging an application themselves, Rule 45 § 3 requires them to provide a written authority to act, duly signed. It is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim within the meaning of Article 34 on whose behalf they purport to act before the Court (see Post, cited above; as regards the validity of an authority to act, see Aliev v. Georgia, no. 522/04, §§ 44-49, 13 January 2009).", "76. Turning to the present case, the Court notes that the first authority form, which was provided by the initial representative, was indeed signed by the eleventh applicant, whereas the second, which was provided by the lawyer, contained a fingerprint instead as well as confirmation by a notary that she was illiterate. It transpires from the case file that the applicant is in fact illiterate (see paragraphs 10 and 15 above).", "77. The Court considers that the present case is to be distinguished from Post (cited above by the Government), as in that case the applicant ’ s representative admitted that she had not had the applicant ’ s authority to act, the authority form had never been received by the Court, the applicant had never been in contact with the Court directly, and the case file had contained no other document indicating that the applicant had wished the representative to lodge an application with the Court on her behalf, or any indication why it would have been impossible for the applicant or her representative to submit a power of attorney.", "78. In the present case, however, the eleventh applicant explicitly and clearly confirmed directly to the Court that she had wanted the first representative to lodge an application on her behalf and to represent her from the outset (see, mutatis mutandis, Aliev, cited above, § 47). She also confirmed that she had authorised him to do so, that is to say she did everything she was requested to do at the time in order to authorise him to act (see paragraph 72 above). She also explicitly accepted all the actions undertaken by him.", "79. In view of the above, in spite of certain formal shortcomings in respect of the first authority form, the Court considers that there were no substantial shortcomings. In any event, it is not in dispute that the eleventh applicant retroactively validated all the actions undertaken by him on her behalf. In such circumstances, the Court must reject the Government ’ s objection in this regard.", "ii. Victim status", "α) The parties ’ submissions", "80. The Government submitted that the applicants had failed to establish their victim status. Notably, they had failed to prove that any of their family members had died or disappeared in the impugned event and the burden of proof in that regard was on them. The Government maintained that “the criminal proceedings [so far had] not offered a reliable answer as to the identity of the others, either those who had been found dead or those who [had] disappeared”. They submitted that it was therefore necessary to identify all those who claimed to be indirect victims of the impugned event and to request valid documentation proving that they were closely related to the victims found. Of all the applicants, only the eleventh applicant had provided documents suggesting that she was related to the alleged victims, and even they had been questionable. In addition, the eleventh applicant ’ s submissions as to which of her relatives had been on the boat and her statements made in court had been inconsistent (see paragraphs 42, 10 and 15 above, in that order).", "81. The eleventh applicant reiterated her complaint. She maintained in particular that her brother and sister-in-law had died or disappeared in the impugned event, and submitted her and her brother ’ s birth certificates. She also averred that she had participated in the domestic proceedings as a witness, and had been heard twice in that capacity, on 10 September 1999 and 8 October 2003 (see paragraphs 10 and 15 above).", "82. The Serbian Government made no comment in this regard.", "β) The Court ’ s conclusion", "83. The relevant principles in this regard are set out in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 97-100, ECHR 2014). In particular, the Court held that the close relatives of missing persons may lodge applications raising complaints concerning their disappearances, to the extent that such complaints fall within the Court ’ s competence (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 112 in fine, ECHR 2009).", "84. The Court notes that throughout the domestic proceedings the eleventh applicant claimed that her brother and sister-in-law had died or disappeared in the impugned event (see paragraphs 10 and 15 above). She also expressly repeated that claim in her observations submitted to the Court (see paragraph 116 below). In view of that, the Court considers that she was consistent in stating that her brother and his wife had been on the boat. The Court is prepared, therefore, to accept that the different information provided initially in this regard (see paragraph 42 above) was an innocent mistake rather than the result of any intention by her or her representative at the time to mislead the Court.", "85. As regards the Government ’ s objection that the eleventh applicant failed to prove that any of her relatives died or disappeared in the accident, the Court firstly notes that not everyone on the boat was found, given that there were at least seventy people on board and only thirty-five bodies were recovered (see paragraphs 7-8 above). Secondly, out of those thirty-five only thirteen were identified (see paragraph 8 above). It would appear from the case file that the victims found had been identified by their family members on the basis of recognition only, and it is clear that not all the bodies could be recognised owing to the post-mortem changes. The eleventh applicant submitted, and the Government did not contest, that no DNA analysis had ever been performed to identify the rest of the bodies, not even after she had stated in court that she had recognised her brother ’ s hand on one of the photographs of the bodies found (see paragraph 10 above). Thirdly, the applicant, for her part, claimed from the outset to the domestic authorities that her brother and sister-in-law had been on the boat, she had participated in the domestic proceedings as a witness and given statements to that effect, and had provided the Court with both her and her brother ’ s birth certificates. In such circumstances, in which the State, by its own admission, did not find all the victims and even failed to identify all those who had been found, the Court fails to see what more the eleventh applicant could have done that she had not done already.", "86. In view of the above, the Court rejects the Government ’ s objection in this regard.", "b. Compatibility ratione temporis", "i. The parties ’ submissions", "87. The Government maintained that only the events and actions undertaken after 3 March 2004 were within the Courts ’ jurisdiction ratione temporis.", "88. The eleventh applicant submitted that the application was compatible ratione temporis given that a number of procedural steps had been undertaken after the Convention had entered into force in respect of the respondent State, such as the investigation, which had begun on 26 May 2004, and the indictment, which had been issued on 31 October 2010. She relied in this regard on Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009) and Bajić v. Croatia (no. 41108/10, 13 November 2012).", "89. The Serbian Government submitted that the applicants ’ complaint was compatible ratione temporis given that most of the investigative steps had been carried out after the Convention had entered into force in respect of the respondent State, while the time between the impugned event and the entry into force of the Convention was reasonably short.", "ii. The Court ’ s conclusion", "90. The relevant principles in this regard are set out in Šilih (cited above, §§ 159-63), and Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, §§ 140-51, ECHR 2013).", "91. In particular, temporal jurisdiction is strictly limited to procedural acts which were or ought to have been implemented after the entry into force of the Convention in respect of a respondent State (“the critical date”), and it is subject to the existence of a genuine connection between the event giving rise to the procedural obligation under Article 2 and the critical date. Such a connection is primarily defined by the temporal proximity between the triggering event and the critical date, which must be separated only by a reasonably short lapse of time that should not normally exceed ten years (see Janowiec and Others, cited above, § 146) and it will only be established if much of the investigation – that is to say the undertaking of a significant proportion of the procedural steps to determine the cause of death and hold those responsible to account – took place or ought to have taken place in the period following the entry into force of the Convention (ibid.,§ 147).", "92. Turning to the present case, the Court notes that the complaint in respect of the procedural aspect of Article 2 of the Convention concerns the investigation of an event which took place in August 1999 and resulted in the deaths and/or disappearances of the eleventh applicant ’ s family members. It should thus be noted that less than four years and seven months passed between the triggering event and the Convention ’ s entry into force in respect of Montenegro on 3 March 2004 (see Bijelić v. Montenegro and Serbia, no. 11890/05, § 69, 28 April 2009), a relatively short lapse of time (see, mutatis mutandis, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 208, ECHR 2014 (extracts)).", "93. The investigation began in September 1999, shortly after the impugned event. Prior to the date of entry into force of the Convention in respect of the respondent State, few procedural acts were carried out in the context of the investigation. It was after that date, and especially from 14 April 2004 onwards, that the investigation took shape through the transfer of the case to the High Court as the court competent to deal with the case, the opening of a new judicial investigation, as well as a new indictment resulting in criminal proceedings (see, mutatis mutandis, Mocanu and Others, cited above, § 209 in fine ). In other words, the majority of the proceedings and the most important procedural measures were carried out after the critical date.", "94. Consequently, the Court finds that it has jurisdiction ratione temporis to examine the complaint raised by the eleventh applicant under the procedural aspect of Article 2 of the Convention, in so far as it relates to the criminal investigation conducted in the present case after the entry into force of the Convention in respect of Montenegro.", "c. Abuse of the right of petition", "95. The Government submitted that the application was inadmissible due to an abuse of the right of petition in view of its partly insulting and provocative content. They did not specify exactly what was insulting and provocative.", "96. The eleventh applicant made no comment in this regard.", "97. The Serbian Government made no comment in this regard.", "98. The Court has consistently held that any conduct of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009). However, the rejection of an application on grounds of abuse of the right of application is an exceptional measure (see Miroļubovs and Others, cited above, § 62) and has so far been applied only in a limited number of cases. In particular, the Court has rejected applications as abusive under Article 35 § 3 of the Convention if they were knowingly based on untrue facts or misleading information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; Pirtskhalaishvili v. Georgia (dec.), no. 44328/05, 29 April 2010; Khvichia v. Georgia (dec.), no. 26446/06, 23 June 2009; Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; and Řehák v. Czech Republic (dec.), no. 67208/01, 18 May 2004), or if they manifestly lacked any real purpose (see Jovanović v. Serbia (dec.), no. 40348/08, 7 March 2014), or if they contained offensive language (see, for example, Řehák, cited above) or if the principle of confidentiality of friendly-settlement proceedings had been breached (see, for example, Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005).", "99. Turning to the present case, it is observed that the Government did not specify which part of the application was insulting and provocative in their view. The Court can only assume that they were referring to the applicants ’ vague and unsubstantiated allegations of mass killings and ethnic persecution, which have already been examined by the Court as a separate complaint against the respondent State and declared inadmissible (see paragraph 5 above), of which the parties were duly informed. It therefore rejects the Government ’ s objection in this regard.", "d. Exhaustion of domestic remedies", "i. The parties ’ submissions", "100. The Government submitted that the applicants had not exhausted all effective legal remedies. Notably, they had not availed themselves of a civil action or lodged a criminal complaint with the State prosecutor. Furthermore, they could have taken over prosecution in a private capacity if that avenue had been unsuccessful.", "101. The eleventh applicant maintained that, under Article 2 of the Convention, where there was reason to believe that someone had passed away in suspicious circumstances, it was the State ’ s duty to conduct an efficient investigation and it could not be left to family members to lodge a formal complaint or take over the responsibility for the investigation. She relied in this regard on Nachova and Others v. Bulgaria ( [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005 ‑ VII). She also maintained that under domestic law she was entitled to compensation in connection with the deaths of her brother and sister-in-law, as she had been living with them.", "102. The Serbian Government made no comment in this regard.", "ii. The Court ’ s conclusion", "103. The relevant general principles in this regard are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-75, 25 March 2014).", "104. In particular, the Court has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. That means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned, but also of the general context in which they operate, as well as the applicant ’ s personal circumstances. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000 ‑ VII).", "105. The Court firstly notes in this regard that the Government failed to specify against whom the eleventh applicant should have brought a compensation claim or to provide any examples of domestic case-law in support of their submission that a civil claim would be an effective domestic remedy in this regard. The Court, for its part, has already found in an earlier case in which applicants had brought a compensation claim against the State on the basis of the provisions of the Obligations Act that the domestic courts neither acknowledged the breach as clearly as should have been necessary in the circumstances of that case nor afforded the applicants appropriate redress (see Milić and Nikezić v. Montenegro, nos. 54999/10 and 10609/11, §§ 75-76, 28 April 2015). As regards a compensation claim against private individuals, the Court notes that a plaintiff in such a case must, inter alia, identify the person believed to have committed the tort. In the instant case, however, it is still unknown who was responsible for the acts of which the applicant complained. Given the situation, there does not seem to have been any basis on which the eleventh applicant could have pursued a civil claim with any reasonable prospect of success (see, mutatis mutandis, İlhan, cited above, § 62).", "106. As regards a criminal complaint, the Court notes that under the relevant statutory provisions in force at the time formal criminal proceedings could be instituted at the request of an authorised prosecutor. In the present case it was the State prosecutor who had to act whenever there was a reasonable suspicion that a publicly prosecutable offence had been committed (see paragraphs 47, and 11, 16-17, and 22 above). A victim only had the right to take over prosecution if the State prosecutor decided that there was no basis on which to prosecute (see paragraph 48 above), which was not the case here. Given that the investigation had already been started by the State prosecutor of his own motion, the Court considers that the eleventh applicant could legitimately have expected that the necessary investigation would be conducted without an additional specific, formal complaint from herself (see, mutatis mutandis, İlhan, cited above, § 63). Also, it does not consider that a criminal complaint lodged by the eleventh applicant would have been capable of altering to any significant extent the course of the investigation that had been made (see, mutatis mutandis, Tanrıkulu v. Turkey [GC], no. 23763/94, § 110 in fine, ECHR 1999 ‑ IV).", "107. In view of the above, the Court rejects the Government ’ s objection in this regard.", "e. Six-month rule", "i. The parties ’ submissions", "108. The Government submitted that the applicants had not complied with the six-month time-limit. The criminal investigation had been started on 26 May 2004 and the indictment issued on 31 October 2006, while the applications had not been lodged until 2010. In addition, the eleventh applicant had only turned to the Court for the first time in January 2015, when she had filed her observations. In the Government ’ s opinion the previous submissions lodged by the initial representative could not be considered legally valid as he had had no proper power of attorney.", "109. The eleventh applicant maintained that she had submitted her application within six months.", "110. The Serbian Government maintained that the application had been submitted within six months, in view of certain steps undertaken in criminal proceedings, which created an illusion of continuity, and given that the applicants had not become aware that there had been no effective investigation of the deaths of their family members until 16 August 2010, when the Roma Centre had issued a statement to that effect.", "ii. The Court ’ s conclusion", "111. The relevant principles in this regard are set out in Mocanu and Others (cited above, §§ 258-69). In particular, the Court has held in cases concerning the obligation to investigate under Article 2 of the Convention that where a death has occurred, applicant relatives are expected to keep track of the progress of the investigation and lodge their applications with due expedition once they are or should have become aware of the lack of any effective investigation (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III; and Varnava and Others, cited above, § 158). As long as there is some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise (see Mocanu and Others, cited above, § 269, and Varnava and Others, cited above, § 165).", "112. Turning to the present case, the Court has already accepted that the eleventh applicant ’ s initial representative was acting on her behalf from the outset, 23 March 2011, when the application was lodged. It therefore rejects the Government ’ s submission that the eleventh applicant only addressed the Court for the first time by means of her observations.", "113. Furthermore, it has already been noted that after the Convention entered into force in respect of Montenegro the investigation was recommenced and new criminal proceedings were initiated, in the course of which some hearings were held and others adjourned. It is observed in this regard that the first trial hearing took place in September 2009. Even though the second took place in October 2010, the Court considers that the applicant could not have known immediately after the first hearing that the next few hearings would be adjourned. In other words, it was not unreasonable for her to wait some time after the first hearing and see how the proceedings would develop and how diligently they would be conducted. After the second hearing held in October 2010, all the other hearings scheduled as of November 2010 were again systematically adjourned for more than a year, for various reasons, none of which were attributable to the applicants (see paragraphs 29-30 above).", "114. In view of the above, the Court considers that the period of six months could not have started running before November 2010 at the earliest, and that the issue of compliance with the six-month time-limit therefore does not arise given that the eleventh applicant lodged the application on 23 March 2011. The Government ’ s objection in this regard is therefore dismissed.", "f. The Court ’ s conclusion", "115. The Court notes that the eleventh applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "a. The eleventh applicant", "116. The eleventh applicant she submitted that the State had failed to conduct an effective investigation as more than fifteen years since the impugned event the relevant authorities had only identified thirteen bodies and still had not found those responsible for the deaths of her brother and sister-in-law. She also maintained that the criminal proceedings had been neither speedy nor effective, which had been the result of a lack of willingness on the part of the High Court to act speedily and a strategy by the defence to prolong the proceedings.", "b. The Government", "117. The Government submitted that the obligation of the State was not an obligation of result but of means, that is to say that the investigation be thorough and the authorities undertake all reasonable measures at their disposal to secure evidence of the impugned event.", "118. They maintained that in the present case the competent authorities had undertaken all reasonable measures at their disposal to secure all possible evidence and shed light on the impugned event as far as possible, including hearing evidence from a large number of people in the courts.", "119. The Government further averred that the circumstances of the case were rather specific and that it had been impossible to investigate the “crime scene”, collect forensic evidence and undertake other investigative measures. Only one witness had survived the impugned event, other potential witnesses had been unavailable ( nedostupni ), the direct victims had not been citizens of Montenegro but citizens of other countries merely in transit through Montenegro, and because of all the abuses of the Roma population which unfortunately took place, cooperation with them was more difficult. In addition, complex criminal cases, as this one definitely was, required a certain amount of time.", "120. In view of all this, the Government maintained that the investigation and the proceedings as a whole had been conducted efficiently and in accordance with Article 2.", "c. The Serbian Government", "121. The Serbian Government maintained that the respondent State had failed to carry out an effective investigation of the impugned event. In particular, four years after the event the indictment had been given a new legal classification, the proceedings had had to be started afresh and before another court, and the domestic bodies had failed to ensure the presence of all the accused, which had caused numerous adjournments of the case. In view of this, they submitted that the criminal proceedings as a whole had been in breach of Article 2 of the Convention.", "2. The Court ’ s conclusion", "122. The Court reiterates that the obligation in Article 2 to protect the right to life imposes a procedural obligation upon the State to investigate deaths, not only when they occur at the hands of State agents, but also at the hands of private or unknown individuals (see, for example, Branko Tomašić and Others v. Croatia, no. 46598/06, § 62, 15 January 2009; Toğcu v. Turkey, no. 27601/95, § 109 in fine, 31 May 2005; and Menson v. the United Kingdom (dec.), no. 47916/99, 6 May 2003).", "123. The essential purpose of an investigation is to “secure the effective implementation of the domestic laws which protect the right to life” and ensure the accountability of those responsible. In order to be effective, an investigation must be capable of leading to the identification and punishment of those responsible. Although it is not an obligation of result but of means, any deficiency in the investigation which undermines its ability to establish the circumstances of the case or the person responsible will risk falling foul of the required standard of effectiveness (see, inter alia, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 183, ECHR 2012). Where an official investigation leads to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. It should in no way be inferred from the foregoing that Article 2 may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence. On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. 48939/99, §§ 95-96, ECHR 2004 ‑ XII). Given that the criminal trial is still under way, the issue to be assessed is not whether the judicial authorities, as guardians of the laws laid down to protect lives, were determined to sanction those responsible, if appropriate, but whether they had proceeded with exemplary diligence and promptness (see Mučibabić v. Serbia, no. 34661/07, § 132, 12 July 2016). While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating an alleged infringement of the right to life may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Mučibabić, cited above, § 132; see, also, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 108, 4 May 2001; McCaughey and Others v. the United Kingdom, no. 43098/09, § 130, ECHR 2013; and Hemsworth v. the United Kingdom, no. 58559/09, § 69, 16 July 2013).", "124. Turning to the present case, the Court notes that the eleventh applicant had an arguable claim that her relatives had lost their lives as a result of an act of reckless endangerment committed by third parties. Even though it has temporal jurisdiction to examine the complaint only in so far as it concerns the events after 3 March 2004 (see paragraph 94 above), the Court will nevertheless, for reasons of context, succinctly take note of all relevant events prior to that date (see Mučibabić, cited above, § 130, and Mladenović v. Serbia, no. 1099/08, § 52, 22 May 2012).", "125. The Court notes that within less than three months of the impugned event (a) autopsies were performed on the bodies found and the relevant reports in that regard issued, (b) a formal judicial investigation was conducted, during which the investigating judge heard thirty-two people, including two suspects, and asked for expert opinions on the capacity of the boat, the autopsy reports, and a weather report on the night of the incident, and (c) an indictment was issued against seven suspects.", "126. By the end of 1999 the case file had been transferred to another court, but the High Court declared the Court of First Instance in Bar competent to deal with the case, after which the file was returned. In the next three years, that is to say by the end of 2002, it was decided that two defendants who were at large would be tried in their absence and representatives were appointed for them. Between 25 December 2002 and 14 April 2004 eleven hearings took place and eight were adjourned for various procedural reasons, there being no information in the case file on one of the hearings. During that time the proceedings had to be recommenced once, on 24 September 2003, due to the passage of time, and defendants and a number of witnesses were therefore heard twice.", "127. After the Convention entered into force in respect of the respondent State first the indictment was changed in April 2004, and then the case file was transferred to the High Court, as the competent court (see paragraph 16 above). A new formal judicial investigation into the impugned incident was commenced on 11 November 2004, and a new indictment issued on 31 October 2006. During those nearly two years only one piece of evidence was obtained, namely an opinion of an expert witness on the capacity of the boat. While it may well be that that piece of evidence was sufficient for the indictment to be issued and no other evidence needed to be obtained, the Court does not see why it took the domestic authorities more than a year and four months to obtain that piece of evidence (which was initially requested as early as in 1999, see paragraph 10 above) and an additional seven months to issue the indictment (see paragraphs 19-22 above).", "128. It is noted in this connection that after the new indictment was issued in October 2006, the first hearing was held on 28 September 2009, nearly three years later. Moreover, it was the only hearing held in 2009. During those three years the domestic authorities tried to serve the indictment on the defendants. The Court notes that the indictment was not successfully served even on the defendant who was in detention in Podgorica (see paragraph 25 above), and for some other defendants it was clear that they had already been at large since 2002 (see paragraph 13 above).", "129. The Court further observes that between 28 September 2009 and 9 July 2014 fifteen hearings were held, while a total of twenty-two hearings were adjourned for various procedural reasons. While perhaps not all the adjournments may be attributed to the respondent State, certainly none was attributable to the eleventh applicant. Moreover, the trial was recommenced on at least three occasions because delays in proceedings necessitated a fresh trial, despite the relevant statutory provision providing that courts have a duty to conduct proceedings without delay (see paragraphs 31-33 and 46 above). The Ombudsman considered unjustified the length of the investigation and the ensuing criminal proceedings as early as in December 2009 and recommended that the High Court terminate the proceedings as soon as possible (see paragraph 35 above). Even though the president of the High Court also recognised that the proceedings in question had already “lasted too long” in June 2011 (see paragraph 40 above), the proceedings are still pending.", "130. The Court further observes that more than ten years and seven months after the new indictment was issued, and", "more than seventeen years and nine months after the impugned event, the criminal proceedings in question appear to still be pending at second instance, the defendants having been acquitted by the first-instance court in July 2014 for lack of evidence (see paragraph 34 above). The Court reiterates that violations have also been found where a trial continued unduly (see Opuz v. Turkey, no. 33401/02, § 151, ECHR 2009, a case where the criminal proceedings at issue had lasted for more than six years and were still pending). In that regard, the Court would stress that the passage of time inevitably erodes the amount and quality of evidence available and the appearance of a lack of diligence casts doubt on the good faith of the investigative efforts (see Trubnikov v. Russia, no. 49790/99, § 92, 5 July 2005). Moreover, the very passage of time is definitely liable to compromise the chances of an investigation being completed (see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). It also prolongs the ordeal for members of the family (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002 ‑ II). The Court considers that in Article 2 cases concerning proceedings instituted to elucidate the circumstances of an individual ’ s death, lengthy proceedings are a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State ’ s procedural obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify such a course of proceedings (see Mučibabić, cited above, § 135). Indeed, in the present case, the Court considers that the Government have failed to justify such lengthy proceedings following the ratification date.", "131. In view of the above, the Court considers that the delays cannot be regarded as compatible with the State ’ s obligation under Article 2, and that the investigation and the subsequent criminal proceedings have not complied with the requirements of promptness and efficiency. There has accordingly been a violation of Article 2 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "132. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "133. The eleventh applicant claimed 1,000 euros (EUR) in respect of pecuniary damage and EUR 17,500 for non-pecuniary damage.", "134. The Government contested her claim.", "135. The Court does not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejects the claim. On the other hand, it awards the eleventh applicant EUR 12,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "136. The eleventh applicant also claimed EUR 500 for costs and expenses incurred before the Court.", "137. The Government contested her claim.", "138. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 for the proceedings before the Court.", "C. Default interest", "139. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "8. The applicants, who are Greek nationals of Roma origin, were born in 1980 and live in Mesolonghi ( Western Greece ).", "I. THE CIRCUMSTANCES OF THE CASE", "A. Outline of the events", "9. On 8 May 1998, at approximately 00 .45 a.m., a patrol car from the Mesolonghi police station responded to a telephone complaint reporting the attempted burglary of a kiosk. The call had been made by the grandson of the owner of the kiosk, Mr Pavlakis. Upon arriving at the scene, the latter found the first applicant attempting to break into the kiosk with an iron bar while the second applicant was apparently acting as a lookout. He struggled with the second applicant, who subsequently stated that Mr Pavlakis had punched him in the face.", "10. At that point three police officers, Mr Sompolos, Mr Alexopoulos and Mr Ganavias, arrived. The first applicant claimed that he was initially handcuffed without being beaten. Then, an officer removed his handcuffs and repeatedly beat him on the back and the head with a truncheon. He stopped when the first applicant complained that he had a medical condition and was feeling dizzy.", "11. Following their arrest, the applicants were taken to the Mesolonghi police station, where officers Tsikrikas, Avgeris, Zalokostas, Skoutas and Kaminatos were present. The first applicant alleged that as he was being led to his cell one officer beat him twice with a truncheon and another slapped him in the face.", "12. At 10.00 a.m. the first applicant was taken to the interview room, where allegedly three police officers punched him in the stomach and the back, trying to extract confessions to other crimes and information about who was dealing in drugs in the area. According to the first applicant, the police officers took turns beating him, slapping him and hitting him all over his body. The first applicant further alleged that another police officer beat him with the iron bar that had been used in the attempted burglary. He alleged that this officer also pushed him against the wall, choking him with the iron bar and threatening to sexually assault him, saying “I will f... you”, while trying to lower his trousers.", "13. The second applicant said that he was also abused throughout his interrogation. During the early hours of the day, he was allegedly beaten with a truncheon on his back and kicked in the stomach by an officer who later returned to beat him again. Subsequently, the second applicant identified the officer as Mr Tsikrikas. The second applicant also testified that the police officers “inserted a truncheon in [his] bottom and then raised it to [his] face, asking [him] whether it smelled”.", "14. The applicants stated that they were both able to hear each other ’ s screams and cries throughout their interrogation. The first applicant testified before the domestic court : “I could hear Koutropoulos crying in the other room”. The second applicant stated: “I screamed and cried when they were beating me. I could also hear Bekos ’ s screams and cries”. They also claimed that they suffered repeated verbal abuse about their Roma origins. In his sworn deposition dated 3 July 1998 the first applicant testified before the public prosecutor that the officer who had choked him with the iron bar said to him “you guys f... your sisters” and “your mothers are getting f... by others” (see also paragraph 25 below).", "The Government disputed that the applicants had been assaulted or subjected to racial abuse while in police detention.", "15. The applicants remained in detention until the morning of 9 May 1998. At 11.00 a.m. they were brought before the Mesolonghi Public Prosecutor. The first applicant was charged with attempted theft and the second applicant with being an accomplice. The Public Prosecutor set a trial date and released the applicants. In November 1999 the applicants were sentenced to thirty days ’ and twenty days ’ imprisonment respectively, in each case suspended for three years.", "16. On 9 May 1998, the applicants went to the regional hospital in order to obtain medical evidence of their injuries. However, the intern they saw at the hospital was only able to verify that they both had bruises. In order to acquire stronger evidence of their injuries, the applicants consulted a forensic doctor in Patras. The latter issued a medical certificate dated 9 May 1998, in which he stated that the applicants bore “moderate bodily injuries caused in the past twenty-four hours by a heavy blunt instrument...” In particular, the first applicant had “two deep red (almost black) parallel contusions with areas of healthy skin, covering approximately 10 cm stretching from the left shoulder joint to the area of the deltoid muscle and the right shoulder joint. He complains of pain in his knee joint. He complains of pain in the left parietal area”. The second applicant had “multiple deep red (almost black) parallel ‘ double ’ contusions with areas of healthy skin covering approximately 12 cm stretching from the left shoulder joint along the rear armpit fold at the lower edge of the shoulder blade, a contusion of the aforementioned colour measuring approximately 5 cm on the rear left surface of the upper arm and a contusion of the aforementioned colour measuring approximately 2 cm on the right carpal joint. He complains of pain on the right side of the parietal area and of pain in the midsection. He complains that he is suffering from a torn meniscus in the right knee, shows pain on movement and has difficulty walking”. The applicants produced to the Court pictures taken on the day of their release, showing their injuries. The Government questioned the authenticity of these pictures and affirmed that they should have first been produced to the domestic authorities. They also questioned the credibility of the forensic doctor who examined the applicants and submitted that he had convictions for perjury.", "17. On 11 May 1998 the Greek Helsinki Monitor and the Greek Minority Rights Group sent a joint open letter to the Ministry of Public Order protesting against the incident. The letter bore the heading “subject matter: incident of ill-treatment of young Roma (Gypsies) by police officers”; it stated that members of the above organisations had had direct contact with the two victims during a lengthy visit to Roma camps in Greece and that they had collected approximately thirty statements concerning similar incidents of ill-treatment against Roma. The Greek Helsinki Monitor and the Greek Minority Rights Group Reports urged the Minister of Public Order in person to ensure that a prompt investigation of the incident was carried out and that the police officers involved be punished. They expressed the view that precise and detailed instructions should be issued to all police stations in the country regarding the treatment of Roma by the police. Reports of the incident were subsequently published in several Greek newspapers.", "B. Administrative investigation into the incident", "18. On 12 May 1998, responding to the publicity that had been generated, the Ministry of Public Order launched an informal inquiry into the matter.", "19. After the incident received greater public attention, the Greek police headquarters requested that the internal investigation be upgraded to a Sworn Administrative Inquiry ( Ενορκη Διοικητική Εξέταση ), which started on 26 May 1998.", "20. The report on the findings of the Sworn Administrative Inquiry was issued on 18 May 1999. It identified the officers who had arrested the applicants and found that their conduct during the arrest was “lawful and appropriate”. It concluded that two other police officers, Mr Tsikrikas and Mr Avgeris had treated the applicants “with particular cruelty during their detention”. The report noted that the first applicant had consistently identified the above officers in his sworn depositions of 30 June and 23 October 1998 and that the second applicant had also consistently and repeatedly identified throughout the investigation Mr Tsikrikas as the officer who had abused him.", "21. More specifically, it was established that Mr Tsikrikas had physically abused the applicants by beating them with a truncheon and/or kicking them in the stomach. It further found that although the two officers had denied ill-treating the applicants, neither officer was able to “provide a convincing and logical explanation as to where and how the above plaintiffs were injured, given that according to the forensic doctor the ill-treatment occurred during the time they were in police custody”.", "22. As a result, it was recommended that disciplinary measures in the form of “temporary suspension from service” be taken against both Mr Tsikrikas and Mr Avgeris. The inquiry exculpated the other police officers who had been identified by the applicants. Despite the above recommendation, neither Mr Tsikrikas nor Mr Avgeris were ever suspended.", "23. On 14 July 1999 the Chief of the Greek Police fined Mr Tsikrikas 20,000 drachmas (less than 59 euros) for failing to “take the necessary measures to avert the occurrence of cruel treatment of the detainees by his subordinates”. The Chief of the Greek Police acknowledged that the applicants had been ill-treated. He stated that “the detainees were beaten by police officers during their detention ... and were subjected to bodily injuries”.", "C. Criminal proceedings against police officers", "24. On 1 July 1998 the applicants and the first applicant ’ s father filed a criminal complaint against the Deputy Commander in Chief of the Mesolonghi police station and “all other” officers of the police station “responsible”.", "25. On 3 July 1998 the first applicant gave a sworn deposition relating to his allegations of ill-treatment. He claimed that during his arrest, he had been beaten on the head with a truncheon by a “tall, blond” policeman, who also gave him a beating in the police station and that he had been subjected to racial insults (see paragraph 14 above).", "26. On 18 December 1998 the Mesolonghi Public Prosecutor asked the Mesolonghi investigating judge to conduct a preliminary inquiry into the incident ( προανάκριση ). The findings of the inquiry were then forwarded to the Prosecutor of the Patras Court of Appeal. In January 2000 the Patras Court of Appeal ordered an official judicial inquiry into the incident ( κύρια ανάκριση ).", "27. On 27 January 1999 and 1 February 2000 the first applicant stated that the behaviour of the police officers “was not so bad”, that he wanted “this story to be over” and that he did not want “the police officers to be punished”. On the same dates the second applicant repeated that he had received a beating at the hands of Mr Tsikrikas, but said that the police officers ’ behaviour was “rightfully bad” and that he did not want them to be prosecuted. He apologised to the owner of the kiosk and said that he wanted “this story to be over” because he has joining the army and wanted “to be on the safe side”.", "28. On 31 August 2000 the Mesolonghi Public Prosecutor recommended that three police officers, Mr Tsikrikas, Mr Kaminatos and Mr Skoutas, be tried for physical abuse during interrogation.", "29. On 24 October 2000 the Indictment Division of the Mesolonghi Criminal Court of First Instance ( Συμβούλιο Πλημμελειοδικών ) committed Mr Tsikrikas for trial. It found that “[the] evidence shows that Mr Tsikrikas ill-treated [the applicants] during the preliminary interrogation, in order to extract a confession from them for the attempted theft ... and any similar unsolved offences they had committed in the past”. The Indictment Division further stated that Mr Tsikrikas had failed to provide a plausible explanation as to how the applicants were injured during their interrogation and noted that they had both identified Mr Tsikrikas, without hesitation, as the officer who had ill-treated them. On the other hand, it decided to drop the criminal charges against Mr Kaminatos and Mr Skoutas on the ground that it had not been established that they were present when the events took place (bill of indictment no. 56/2000).", "30. Mr Tsikrikas ’ s trial took place on 8 and 9 October 2001 before the three-member Patras Court of Appeal. The court heard several witnesses and the applicants, who repeated their allegations of ill-treatment (see paragraphs 10-14 above ). Among others, the court heard Mr Dimitras, a representative of the Greek Helsinki Monitor, who stated that the said organisation was monitoring the situation of Roma in Greece and that the incident was reported to him during a visit to the Roma/Gypsy camps. He claimed that he was horrified when he saw the injuries on the applicants ’ bodies and that the latter were initially afraid to file a complaint against the police officers. Mr Dimitras also referred to the actions subsequently taken by the Greek Helsinki Monitor in order to assist the applicants. The court also read out, among other documents, the Greek Helsinki Monitor ’ s and the Greek Minority Rights Group ’ s open letter to the Ministry of Public Order (see paragraph 17 above).", "31. On 9 October 2001 the court found that there was no evidence implicating Mr Tsikrikas in any abuse and found him not guilty (decision no. 1898/2001). In particular, the court first referred to the circumstances surrounding the applicants ’ arrest and to the subsequent involvement of members of the Greek Helsinki Monitor in the applicants ’ case, noting their role in monitoring alleged violations of human rights against minorities. Taking also into account the forensic doctor ’ s findings, the court reached the following conclusion :", "“... Admittedly, the second applicant had clashed with Mr Pavlakis. Further, given the applicants ’ light clothing, it was logical that they were injured during the fight that took place when they were arrested. Even if some of the applicants ’ injuries were inflicted by police officers during their detention, it has not been proved that the accused participated in this in one way or the other, because he was absent when they arrived at the police station and did not have contact with them until approximately two hours later, on his arrival at the police station. In his sworn deposition dated 3 July 1998, the first applicant stated that in the process of his arrest he had been beaten with a truncheon by a tall, blond police officer (a description that does not match the features of the accused) and that the same police officer had also beaten him during his detention. However, the accused was not present when the applicants were arrested. If the applicants had indeed been beaten by police officers during their detention, they would have informed their relatives who arrived at the police station that same night. Thus, the accused must be found not guilty.”", "32. Under Greek law, the applicants, who had joined the proceedings as civil parties, could not appeal against this decision.", "II. REPORTS OF INTERNATIONAL ORGANISATIONS ON ALLEGED DISCRIMINATION AGAINST ROMA", "33. In its country reports of the last few years, the European Commission against Racism and Intolerance at the Council of Europe ( ECRI ) has expressed concern about racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia.", "34. The Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, prepared by the European Union (EU) network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of EU member States, such as Austria, France, Greece, Ireland, Italy and Portugal.", "35. In its second report on Greece, adopted on 10 December 1999 and published on 27 June 200 0, ECRI stated, inter alia :", "“ 26. There have been consistent reports that Roma/Gypsies, Albanians and other immigrants are frequently victims of misbehaviour on the part of the police in Greece. In particular, Roma/Gypsies are often reported to be victims of excessive use of force -- in some cases resulting in death -- ill-treatment and verbal abuse on the part of the police. Discriminatory checks involving members of these groups are widespread. In most cases there is reported to be little investigation of these cases, and little transparency on the results of these investigations. Although most of these incidents do not generally result in a complaint being filed by the victim, when charges have been pressed the victims have reportedly in some cases been subjected to pressure to drop such charges. ECRI stresses the urgent need for the improvement of the response of the internal and external control mechanisms to the complaints of misbehaviour vis à vis members of minority groups on the part of the police. In this respect, ECRI notes with interest the recent establishment of a body to examine complaints of the most serious cases of misbehaviour on the part of the police and emphasises the importance of its independence and of its accessibility by members of minority groups.", "27. ECRI also encourages the Greek authorities to strengthen their efforts as concerns provision of initial and ongoing training of the police in human rights and anti-discrimination standards. Additional efforts should also be made to ensure recruitment of members of minority groups in the police and their permanence therein ...", "...", "31. As noted by ECRI in its first report, the Roma/Gypsy population of Greece is particularly vulnerable to disadvantage, exclusion and discrimination in many fields ...", "...", "34. Roma/Gypsies are also reported to experience discrimination in various areas of public life ... They also frequently experience discriminatory treatment and sometimes violence and abuse on the part of the police ... ”", "36. In its third report on Greece, adopted on 5 December 2003 and published on 8 June 200 4, ECRI stated, inter alia :", "“ 67. ECRI notes with concern that since the adoption of its second report on Greece, the situation of the Roma in Greece has remained fundamentally unchanged and that overall they face the same difficulties – including discrimination - in respect of housing, employment, education and access to public services ...", "...", "69. ECRI welcomes the fact that the government has taken significant steps to improve the living conditions of Roma in Greece. It has set up an inter-ministerial committee for improving the living conditions of Roma ...", "70. ... ECRI deplores the many cases of local authorities refusing to act in the interests of Roma when they are harassed by members of the local population. It is also common for the local authorities to refuse to grant them the rights that the law guarantees to members of the Roma community to the same extent as to any other Greek citizen ...", "...", "105. ECRI expresses concern over serious allegations of ill-treatment of members of minority groups, such as Roma and both authorised and unauthorised immigrants. The ill-treatment in question ranges from racist insults to physical violence and is inflicted either at the time of arrest or during custody. ECRI is particularly concerned over the existence of widespread allegations of improper use of firearms, sometimes resulting in death. It is equally concerned over reports of ill-treatment of minors and expulsion of non-citizens outside of legal procedures.", "106. The Greek authorities have indicated that they are closely monitoring the situation and that mechanisms are in place to effectively sanction such abuses. For example, the Internal Affairs Directorate of the Greek Police was established in 1999 and is responsible for conducting investigations, particularly into acts of torture and violation of human dignity. The police –specifically police officers working in another sector than that of the person under suspicion - and the prosecution equally have competence over such matters and must inform the above-mentioned body when dealing with a case in which a police officer is implicated. The Greek Ombudsman is also competent for investigating, either on request or ex officio, allegations of misbehaviour by a police officer, but he is only entitled to recommend that appropriate measures be taken. ECRI welcomes the fact that the chief state prosecutor recently reminded his subordinates of the need for cases of police ill-treatment, particularly involving non-citizens, to be prevented and prosecuted with the appropriate degree of severity. The authorities have pointed out that instances of ill-treatment were primarily due to difficult conditions of detention. ECRI notes with satisfaction cases of law enforcement officials having been prosecuted, and in some cases penalised, for acts of ill-treatment. However, human rights NGOs draw attention to other cases where impunity is allegedly enjoyed by officials responsible for acts of violence, whose prosecution has not lead to results or even been initiated. ECRI deplores such a situation and hopes that it will no longer be tolerated .”", "37. In their joint report published in April 2003 (“Cleaning Operations – Excluding Roma in Greece ” ), the European Roma Rights Center and the Greek Helsinki Monitor, which represent the applicants in the instant case, stated, inter alia :", "“ ERRC/GHM monitoring of policing in Greece over the last five years suggests that ill-treatment, including physical and racist verbal abuse, of Roma in police custody is common. Although Greek authorities deny racial motivation behind the ill-treatment of Roma, Romani victims with whom ERRC/GHM spoke testified that police officers verbally abused them using racist epithets.", "Anti-Romani sentiment among police officers often leads to instances of harassment, inhuman and degrading treatment, verbal and physical abuse, and arbitrary arrest and detention of Roma at the hands of police. The ERRC and GHM regularly document ill-treatment of Roma at the hands of the police, either at the moment of arrest or in police custody. Police officers ’ use of racial epithets in some cases of police abuse of Roma is indicative that racial prejudice plays a role in the hostile treatment to which officers subject Roma ... ”" ]

[ "III. RELEVANT DOMESTIC LAW", "38. According to Article 2 § 1 of the Greek Constitution, the “value of the human being” is one of the fundamental principles and a “primary obligation” of the Greek State.", "39. Article 5 § 2 of the Constitution reads as follows:", "“All persons living within the Greek territory shall enjoy full protection of their life, honour and liberty irrespective of nationality, race or language and of religious or political beliefs. Exceptions shall be permitted only in cases provided for by international law ... ”", "40. Law no. 927/1979 (as amended by Law no. 1419/1984 and Law no. 2910/2001) is the principal implementing legislation on the prevention of acts or activities related to racial or religious discrimination.", "IV. RELEVANT INTERNATIONAL LAW", "41. European Union Council Directive 2000/43/CE of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/CE of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, provide, in Article 8 and Article 10 respectively:", "“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.", "2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.", "3. Paragraph 1 shall not apply to criminal procedures.", "...", "5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.”", "THE LAW", "I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION", "42. The applicants complained that during their arrest and subsequent detention they were subjected to acts of police brutality which inflicted on them great physical and mental suffering amounting to torture, inhuman and/or degrading treatment or punishment. They also complained that the Greek investigative and prosecuting authorities failed to carry out a prompt and effective official investigation into the incident. They argued that there had been a breach of Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "A. The submissions of the parties", "43. The applicants submitted that they had suffered serious bodily harm at the hands of the police and that the investigation into the incident and the ensuing judicial proceedings were ineffective, deficient and inconclusive. They stressed that at the material time they were young and vulnerable. They had also received threats during the course of the investigation. This was the reason why, at some point, they claimed that they did not wish to pursue their complaints against the police officers.", "44. The Government referred to the findings of the domestic court and submitted that the applicants ’ complaints were wholly unfounded. Their moderate injuries were the result of the struggle that took place during their arrest. The applicants themselves had stated that the conduct of the police officers was justified and that they did not want to see them prosecuted. The investigation into the incident was prompt, independent and thorough, and led to a fine being imposed on Mr Tsikrikas. Criminal charges were also brought against him. Several witnesses and the applicants were heard in court. The fact that the accused was acquitted had no bearing on the effectiveness of the investigation.", "B. The Court ’ s assessment", "1. Concerning the alleged ill-treatment", "45. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V, and the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim ’ s conduct (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79).", "46. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).", "47. In the instant case the applicants complained that during their arrest and subsequent detention they were subjected to acts of police brutality. Admittedly, on the day of their release from police custody, the applicants bore injuries. According to the Court ’ s case-law, “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention” ( Aksoy v. Turkey, judgment of 18 December 1996, Reports 1 996–VI, p. 2278, § 61).", "48. The Court considers that in the present case the domestic authorities have failed to provide such an explanation. It notes in this respect that the three-member Patras Court of Appeal which tried the only police officer who had been committed to trial attributed the applicants ’ injuries to the struggle that took place during their arrest and considered that “if the applicants had indeed been beaten by police officers during their detention, they would have reported this fact to their relatives”; in the Court ’ s view this reasoning is less than convincing, in particular taking into account that the administrative investigation that was conducted into the incident established that the applicants had been treated “with particular cruelty during their detention” and the acknowledgement by the Chief of the Greek Police that the applicants had been beaten by police officers during their detention.", "49. The question which therefore arises next is whether the minimum level of severity required for a violation of Article 3 of the Convention can be regarded as having been attained in the instant case (see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 84, ECHR 2000-VII). The Court recalls that the assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Tekin v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1517, § 52).", "50. In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will also have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55).", "51. In the light of the above circumstances, the Court considers that the serious physical harm suffered by the applicants at the hands of the police, as well as the feelings of fear, anguish and inferiority which the impugned treatment had produced in them, must have caused the applicants suffering of sufficient severity for the acts of the police to be categorised as inhuman and degrading treatment within the meaning of Article 3 of the Convention.", "52. The Court concludes that there has been a breach of Article 3 of the Convention in this regard.", "2. Concerning the alleged inadequacy of the investigation", "53. The Court recalls that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).", "54. As regards the present case, the Court notes that on several occasions, during both the administrative inquiry that was conducted into the incident and the ensuing judicial proceedings, it has been acknowledged that the applicants were ill-treated while in custody. However, no police officer was ever punished, either within the criminal proceedings or the internal police disciplinary procedure for ill-treating the applicants. In this regard the Court notes that the fine of less than 59 euros imposed on Mr Tsikrikas was imposed not on the grounds of his own ill-treatment of the applicants but for his failure to prevent the occurrence of ill-treatment by his subordinates (see paragraph 23 above). It is further noted that neither Mr Tsikrikas nor Mr Avgeris were at any time suspended from service, despite the recommendation of the report on the findings of the administrative inquiry (see paragraphs 20-22 above). In the end, the domestic court was satisfied that the applicants ’ light clothing was the reason why the latter got injured during their arrest. Thus, the investigation does not appear to have produced any tangible results and the applicants received no redress for their complaints.", "55. In these circumstances, having regard to the lack of an effective investigation into the credible allegation made by the applicants that they had been ill-treated while in custody, the Court holds that there has been a violation of Article 3 of the Convention in this respect.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "56. The applicants complained that they had not had an effective remedy within the meaning of Article 13 of the Convention, which stipulates:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "57. In view of the grounds on which it has found a violation of Article 3 in relation to its procedural aspect (see paragraphs 53 to 55 above), the Court considers that there is no need to examine separately the complaint under Article 13 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "58. The applicants complained that the ill-treatment they had suffered, along with the subsequent lack of an effective investigation into the incident, were in part due to their Roma ethnic origin. They alleged a violation of Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The submissions of the parties", "59. The applicants acknowledged that in assessing evidence the standard of proof applied by the Court was that of “proof beyond reasonable doubt”, but noted that the Court had made it clear that that standard had not be interpreted as requiring such a high degree of probability as in criminal trials. They affirmed that the burden of proof had to shift to the respondent Government when the claimant established a prima facie case of discrimination.", "60. Turning to the facts of the instant case, the applicants claimed that the nature of the incident itself, the racist language used by the police and the continuous failure of the domestic authorities to sanction anti-Roma police brutality clearly demonstrated a compelling case of racially motivated abuse and dereliction of responsibility. In this respect the applicants reiterated that the police officers had explicitly used racist language and had referred to their ethnic origin in a pejorative way. They further argued that the discriminatory comments which the police officers shouted at them during their detention had to be seen against the broader context of systematic racism and hostility which law-enforcement bodies in Greece repeatedly displayed against Roma. This attitude had been widely documented by intergovernmental and human rights organisations.", "61. The Government emphasised that the Court had always required “proof beyond reasonable doubt” and that in the instant case there was no evidence of any racially motivated act on the part of the authorities. They firmly denied that the applicants had been ill-treated; however, even assuming that the police officers who were involved in the incident had acted in a violent way, the Government believed that their behaviour was not racially motivated but was tied to the fact that the applicants had previously committed an offence.", "62. The Government further contended that in its latest report on Greece (see paragraph 36 above), ECRI drew the attention of the Greek authorities to the situation of the Roma, highlighting in particular problems of discrimination in respect of housing, employment, education and access to public services. ECRI also stressed the importance of overcoming local resistance to initiatives that benefit Roma but welcomed the fact that the government had taken significant steps to improve the living conditions of Roma in Greece. The Government stressed that there was no mention in the report of any other discrimination suffered by the Roma in respect of their rights guaranteed under the Convention. Lastly, they affirmed that the Greek Constitution expressly proscribed racial discrimination and pointed out that the State had recently undertaken action for the transposition into the Greek legal order of the anti-racism Directives 2000/43 and 2000/78 of the European Communities.", "B. The Court ’ s assessment", "1. Whether the respondent State is liable for degrading treatment on the basis of the victims ’ race or ethnic origin", "63. Discrimination is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002 ‑ IV ). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment ( Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, 6 July 2005).", "64. Faced with the applicants ’ complaint of a violation of Article 14, as formulated, the Court ’ s task is to establish whether or not racism was a causal factor in the impugned conduct of the police officers so as to give rise to a breach of Article 14 of the Convention taken in conjunction with Article 3.", "65. The Court reiterates that in assessing evidence it has adopted the standard of proof “beyond reasonable doubt” (see paragraph 47 above); nonetheless, it has not excluded the possibility that in certain cases of alleged discrimination it may require the respondent Government to disprove an arguable allegation of discrimination and – if they fail to do so – find a violation of Article 14 of the Convention on that basis. However, where it is alleged – as here – that a violent act was motivated by racial prejudice, such an approach would amount to requiring the respondent Government to prove the absence of a particular subjective attitude on the part of the person concerned. While in the legal systems of many countries proof of the discriminatory effect of a policy or decision will dispense with the need to prove intent in respect of alleged discrimination in employment or the provision of services, that approach is difficult to transpose to a case where it is alleged that an act of violence was racially motivated (see Nachova and Others v. Bulgaria, cited above, § 157).", "66. Therefore, turning to the facts of the present case, the Court considers that whilst the police officers ’ conduct during the applicants ’ detention calls for serious criticism, that behaviour is of itself an insufficient basis for concluding that the treatment inflicted on the applicants by the police was racially motivated. Further, in so far the applicants have relied on general information about police abuse of Roma in Greece, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the treatment inflicted on the applicants was motivated by racism (see Nachova and Others v. Bulgaria, cited above, § 155). Lastly, the Court does not consider that the failure of the authorities to carry out an effective investigation into the alleged racist motive for the incident should shift the burden of proof to the respondent Government with regard to the alleged violation of Article 14 in conjunction with the substantive aspect of Article 3 of the Convention. The question of the authorities ’ compliance with their procedural obligation is a separate issue, to which the Court will revert below (see Nachova and Others v. Bulgaria, cited above, § 157).", "67. In sum, having assessed all relevant elements, the Court does not consider that it has been established beyond reasonable doubt that racist attitudes played a role in the applicants ’ treatment by the police.", "68. It thus finds that there has been no violation of Article 14 of the Convention taken together with Article 3 in its substantive aspect.", "2. Whether the respondent State complied with its obligation to investigate possible racist motives", "69. The Court considers that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State ’ s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of a racially induced violence (see, mutatis mutandis, Nachova and Others v. Bulgaria, nos. 43577/98 and 43579/98, §§ 158-59, 26 February 2004).", "70. The Court further considers that the authorities ’ duty to investigate the existence of a possible link between racist attitudes and an act of violence is an aspect of their procedural obligations arising under Article 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 of the Convention to secure the fundamental value enshrined in Article 3 without discrimination. Owing to the interplay of the two provisions, issues such as those in the present case may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], cited above, § 161).", "71. In the instant case the Court has already found that the Greek authorities violated Article 3 of the Convention in that they failed to conduct an effective investigation into the incident. It considers that it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and the abuse suffered by the applicants at the hands of the police.", "72. The authorities investigating the alleged ill-treatment of the applicants had before them the sworn testimonies of the first applicant that, in addition to being the victims of serious assaults, they had been subjected to racial abuse by the police who were responsible for the ill-treatment. In addition, they had before them the joint open letter of the Greek Helsinki Monitor and the Greek Minority Rights Group protesting about the ill-treatment of the applicants, which they qualified as police brutality against Roma by the Greek police, and referring to some thirty oral testimonies concerning similar incidents of ill-treatment of members of the Roma community. The letter concluded by urging that precise and detailed instructions should be given to all police stations of the country regarding the treatment of Roma by the police (see paragraph 17 above).", "73. The Court considers that these statements, when combined with the reports of international organisations on alleged discrimination by the police in Greece against Roma and similar groups, including physical abuse and the excessive use of force, called for verification. In the view of the Court, where evidence comes to light of racist verbal abuse being uttered by law enforcement agents in connection with the alleged ill-treatment of detained persons from an ethnic or other minority, a thorough examination of all the facts should be undertaken in order to discover any possible racial motives (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], cited above, § 164).", "74. In the present case, despite the plausible information available to the authorities that the alleged assaults had been racially motivated, there is no evidence that they carried out any examination into this question. In particular, nothing was done to verify the statements of the first applicant that they had been racially verbally abused or the other statements referred to in the open letter alleging similar ill-treatment of Roma; nor do any inquiries appear to have been made as to whether Mr Tsikrakas had previously been involved in similar incidents or whether he had ever been accused in the past of displaying anti-Roma sentiment; nor, further, does any investigation appear to have been conducted into how the other officers of the Mesolonghi police station were carrying out their duties when dealing with ethnic minority groups. Moreover, the Court notes that, even though the Greek Helsinki Monitor gave evidence before the trial court in the applicants ’ case and that the possible racial motives for the incident cannot therefore have escaped the attention of the court, no specific regard appears to have been paid to this aspect, the court treating the case in the same way as one which had no racial overtones.", "75. The Court thus finds that the authorities failed in their duty under Article 14 of the Convention taken together with Article 3 to take all possible steps to investigate whether or not discrimination may have played a role in the events. It follows that there has been a violation of Article 14 of the Convention taken together with Article 3 in its procedural aspect.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "76. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "77. The first applicant claimed 4,540.80 euros (EUR) for loss of income over a period of twelve months after the incident. The second applicant claimed EUR 2,250 for loss of income over a period of six months after the incident. They further submitted that due to their injuries they were unable to resume their previous occupations.", "78. The Government submitted that the applicants had not duly proved the existence of pecuniary damage and that their claims on this point should be dismissed.", "79. The Court notes that the claims for pecuniary damage relate to loss of income, which was allegedly incurred over a period of twelve and six months respectively after the incident, and to alleged subsequent reduction of income. It observes, however, that no supporting details have been provided for these losses, which must therefore be regarded as largely speculative. For this reason, the Court makes no award under this head.", "2. Non-pecuniary damage", "80. The applicants claimed EUR 20,000 each in respect of the fear, pain and injury they suffered.", "81. The Government argued that any award for non-pecuniary damage should not exceed EUR 10,000 for each applicant.", "82. The Court considers that the applicants have undoubtedly suffered non-pecuniary damage which cannot be compensated solely by the findings of violations. Having regard to the specific circumstances of the case and ruling on an equitable basis, the Court awards each applicant EUR 10,000, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "83. The applicants made no claim for costs and expenses.", "C. Default interest", "84. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant, Belmondo Cobzaru, is a Romanian national, born in 1973. He lives in the town of Mangalia ( Constanţa ).", "1. Facts as submitted by the applicant", "8. On 4 July 1997 at around 7.30 p.m. the applicant and his girlfriend Steluţa M. arrived at the flat which they were sharing and which belonged to Steluţa. The applicant then left the flat for about 20 minutes to get some money, as he and Steluţa were planning to go out that evening. However, when he came back, he found the door locked. He asked his neighbours whether they had seen Steluţa, but was told that nobody had seen her. Fearing that she might have attempted to take her life, as she had already done in the past, the applicant forced open the door of the flat in the presence of his neighbour, Rita G. He found nobody there, so decided to go to the police to enquire about her fate. As he was leaving the apartment block, he met Steluţa's brother-in-law, Crinel M., accompanied by three men armed with knives, who attempted to attack him, but from whom he managed to escape.", "9. On 4 July 1997 at around 8 p.m. Crinel M. called the police and lodged a complaint against the applicant. According to the complainant, the applicant had tried to break into Steluţa's flat, but had run away when Crinel M. appeared. The complaint was certified by the police officer Dumitru CA.", "10. Dumitru CA sent a police patrol to conduct an on-site investigation into the facts complained of by Crinel M. The report drafted by the police patrol concluded that there were no traces of rummaging or violence in the flat. Rita G., who was present during the investigation, stated that the applicant had broken into the flat in her presence, fearing that Steluţa might have committed suicide.", "11. A short time after he escaped from Crinel M., that is, between 8 and 9 p.m., the applicant learned that the police were looking for him and went to the Mangalia City Police Department, accompanied by his cousin Venuşa L.", "He reported to the police officer on duty, Dumitru CA., that some individuals had attempted to beat him up as he was leaving his flat, and that although he had managed to escape, he was still afraid that Crinel M. might beat him up. After he presented his identity card, he was told to wait. Other policemen were also present.", "12. At around 10 p.m. police officers Gheorghe G., Curti D. and Ion M. came back from the on-site investigation they had carried out at Steluţa's flat. Gheorghe G. grabbed the applicant by his hair and pulled him upstairs to an office. Gheorghe G. and Curti D. punched him in the head until his nose started to bleed, and he was thrown to the ground and kicked. A newspaper was placed on the back of his neck and he was hit with a wooden stick. Four plainclothes officers observed the assault, but took no steps to prevent or halt it. The police told the applicant that the fact that his father was the local leader of a Roma association would not help him and forced him to sign a statement according to which he had been beaten up by Crinel M. and other individuals. Then he was told to leave and to come back the next day. The police kept his identity card.", "13. The applicant left, but as he was feeling very weak, he stopped and sat in front of the police station. Gheorghe G. came out and told him to go home. Seeing that the applicant was in bad shape, Venuşa invited him back with her and offered him a coffee. The applicant showed her the bumps on his head and the other marks of the blows to his back.", "14. Later that evening the applicant was admitted to the emergency ward of Mangalia Hospital with injuries diagnosed as craniocerebral trauma. He was transferred to Constanţa County Hospital where an X-ray was performed. He was informed that a further scan was necessary, but this was never performed.", "15. On 7 July 1997 the applicant was discharged from hospital, allegedly at the request of someone whose name the hospital staff could not disclose.", "16. On 8 July 1997 the applicant was examined by a forensic medical expert of the Forensic Institute of Constanţa, who noted in his report that the applicant had severe headaches and stomachaches, difficulty in walking, bruises around both eyes, on his fingers, on the back of his right hand, on his chest, on his right thigh and calf, and a haematoma on his head. The report concluded that the injuries had been caused by being hit “with painful and hard objects”. The doctor said that the applicant would need 14-15 days to recover.", "17. On 8 July 1997 the applicant lodged a complaint with the head of the Mangalia Police Department against police officers Curti D. and Gheorghe G.. He alleged that after he had managed to escape from Crinel M. and his friends, he had gone home, but as he had found out that the police were looking for him, he had gone to the police station. There, Gheorghe G. and Curti D. had beaten him and made him sign a statement, after which they had told him to go home and come back the next day.", "The complaint was registered on 9 July 1997 and forwarded to Major P.", "18. On 10 or 11 July 1997 Major P. took written statements from the police officers involved in the applicant's questioning: Gheorghe G., Curti D. and Ion M. All police officers denied, in succinct terms, having beaten the applicant. None of them mentioned having seen any bruises on the applicant's face upon his arrival at the police station. The statements were dated 11 July, but Major P. certified them as having been made on 10 July.", "19. In a statement certified by Major P. as having been made on 11 July 1997 Dumitru CA., a police officer on duty on 4 July 1997, explained that at 8.15 p.m. he had received a telephone call from Crinel M., who had told him that the applicant had forcibly entered Steluţa M.'s flat and had subsequently fled. The duty officer then sent to the flat a police patrol, composed of three police officers: Gheorghe G., Curti D. and Ion M. In the meantime the applicant arrived at the police station, accompanied by his cousin, Venuşa L. He told Dumitru CA. that he had forcibly entered the flat because he thought his girlfriend was inside. On his way out, on the staircase of the building, a number of individuals had approached him and tried to catch him, but he had run away and come to the police in order to avoid being beaten up by them. The police officer told the applicant and his cousin to wait in the waiting room. Police officer Gheorghe C. was there as well. At around 10 p.m. the police patrol returned from the flat and took the applicant to their office on the first floor for questioning. After approximately half an hour, the applicant was sent home and asked to come back the next morning. Dumitru CA. made no mention of the bruises which the applicant had allegedly had on his face upon arrival at the police station.", "20. By a letter dated 10 July 1997 Major P. forwarded the preliminary investigation file to the Military Prosecutor's Office in Constanţa. The case file contained the following documents:", "( i ) an undated statement by the applicant according to which, after he had left Steluţa's flat in the evening of 4 July 1997, he had met her relatives, who had beaten him up;", "(ii) the report dated 4 July 1997, 8.15 p.m. drawn up by police officer Dumitru CA. stating that Crinel M. had complained to the police that the applicant had broken into Steluţa's flat (see paragraph 9 above );", "(iii) a statement dated 4 July 1997 by Crinel M. from which it appeared that he had threatened the applicant in the evening of 4 July 1997 and had even thrown a stone at him, which had missed its target, but that he had definitely not beaten him up;", "(iv) the on-site investigation dated 4 July 1997;", "(v) a statement dated 4 July 1997 by Rita G., confirming the applicant's allegation, namely that at around 6 p.m., he had broken into Steluţa's flat in her presence, out of concern that she might have committed suicide, and that he had left when he had seen that Steluţa was not there; no mention was made of any physical assault against the applicant;", "(vi) a police report dated 7 July 1997 issued by Gheorghe G., listing the clothes belonging to Steluţa allegedly torn up by the applicant on 28 June 1997;", "(vii) a written notification issued on 7 July 1997 by the police requesting that the Forensic Institute examine Steluţa M., who “had been beaten up by Cobzaru Belmondo on 3 July 1997”;", "(viii) Steluţa's statement dated 9 July 1997 from which it appeared that on 3 July the applicant had beaten her up while she was at his flat, and that on 4 July he had taken her to her flat and told her not to leave; as soon as he had gone, Steluţa had gone onto the roof of the building where she had remained for about two hours; from there she had seen the applicant come back and break into the flat; as he had found nobody, he had gone away. Steluţa further stated that as the applicant was leaving the building, he had met Crinel M., who “had beaten him up, asking him why he had broken into the flat”; no details were given as to the alleged beating; at the end of her statement she mentioned again that the applicant had broken into her flat with a screwdriver he had borrowed from a neighbour, but that when he saw Crinel M., he had run away;", "(ix) a statement dated 9 July 1997 by Elena, Steluţa's mother, according to which the relationship between the applicant and Steluţa had already deteriorated; on 28 June 1997 the applicant had torn up some clothes belonging to Steluţa and on 4 July 1997, while Steluţa was on the roof of the building, the applicant had broken into the flat but had not stolen anything;", "(x) the statements dated 10 or 11 July 1997 made by police officers Gheorghe G., Ion M., Curti D. and Dumitru CA. ( see paragraphs 18 and 19 above ).", "21. On 17 July 1997 the applicant and his father, president of the Association of Roma in Mangalia, lodged a complaint with the Department for National Minorities and requested an investigation in respect of the police officers who had beaten the applicant. They submitted a medical certificate issued on 8 July 1998, a copy of a newspaper article describing the applicant's allegations of ill-treatment and the statements of Venuşa, who had accompanied the applicant to the police station on 4 July 1997 and who had seen him coming out of the police station in excruciating pain. The complaint was forwarded to the Military Prosecutor's Office in Constanţa on 23 July 1997.", "22. On 21 July 1997 the applicant's father lodged a complaint with the Constanţa Military Prosecutor's Office.", "23. On 28 July 1997 the applicant lodged a separate criminal complaint with the Bucharest Military Prosecutor's Office. He also claimed pecuniary and non-pecuniary damages. The complaint was registered the same day with the Prosecutor General's Office and forwarded on 14 August 1997 to the Constanţa Military Prosecutor's Office.", "24. On 18 August 1997 the military prosecutor charged with the investigation interviewed the police officers and the applicant. Police officers Curti D. and Gheorghe G. maintained their statements made before the Mangalia police, and the applicant maintained his allegations of ill ‑ treatment. He complained, moreover, that he had been forced to sign a statement according to which he had been hit by Crinel Marin and his girlfriend's other relatives.", "25. On 18 September 1997 the military prosecutor took a statement from Venuşa L. She stated that on 4 July 1997 she and a friend, Valentina T., had accompanied the applicant to the police station and that about 30 minutes later the applicant had come out and complained to them that he had been beaten by the police with a wooden stick. He had also shown them the bruises on his hand, back and fingers.", "26. On 29 September 1997 the General Prosecutor's Office in Bucharest urged the Constanţa military prosecutor in charge of the investigation to complete the investigation and render a final decision by 12 December 1997.", "27. On 6 October 1997 the Constanţa military prosecutor went to the Mangalia City Police Department, where he took statements from the following witnesses:", "( i ) witnesses Amet F. and Nuri M. stated that they had heard that an altercation had taken place between Crinel M. and the applicant; Amet F. further stated that he had seen Crinel M. chasing the applicant with a stone in his hand;", "(ii) police officer Dumitru CI., who gave a written statement according to which he was at the police station on 4 July 1997 when the applicant arrived there at around 9.30 p.m., and saw that the applicant had bruises on his face when he entered the police station; he had explained to the duty police officer, Dumitru CA., that he had been hit by someone when breaking into the flat;", "(iii) Ion M. was interviewed again and stated this time that when the applicant had arrived at the police station, at around 9.30 p.m., he had bruises on his face and declared that he had been hit by someone when breaking into the flat;", "(iv) police officer Marius I., who had also participated in the on-site investigation at Steluţa's flat on 4 July 1997, stated that the applicant had arrived at the police station after the team of policemen had come back from the on-site investigation and that he had noticed that the applicant had obvious bruises on his face, which had been caused a short time beforehand;", "(v) Crinel M. confirmed that on 4 July 1997 he had seen the applicant breaking into Steluţa's flat and that after making an unsuccessful attempt to catch the applicant, he had only managed to throw some stones at him, which had missed their target; he further confirmed that some neighbours had witnessed the incident, including Rita G.", "The prosecutor did not put any questions to the police officers who had submitted written statements.", "28. On 12 November 1997 the military prosecutor of Constanţa refused to open a criminal investigation in respect of the applicant's complaints against police officers Gheorghe G. and Curti D., on the ground that the facts had not been established. The prosecutor noted that both the applicant and his father were known as “antisocial elements prone to violence and theft”, in constant conflict with “fellow members of their ethnic group” and that it was in this context that in the evening of 4 July 1997 the applicant had broken into his girlfriend's flat and had destroyed many of her clothes. It further found that, according to various testimonies, including those of the police officers from the Mangalia Police Department, the applicant's girlfriend, her mother and Nuri M., the applicant had been hit by Crinel M. for breaking into Steluţa's flat. The prosecutor found that it was for “obvious reasons” that Crinel M., a “gypsy as well”, had denied having beaten the applicant. The prosecutor considered that the statement given by Venuşa L., from which it appeared that the applicant had come out of the police station with bruises on various parts of his body, could not be taken into consideration since she was also a gypsy – and, moreover, the applicant's cousin – and therefore her testimony was insincere and subjective.", "29. By separate decisions of 26 February and 27 July 1998 the public prosecutor of the Mangalia County Court discontinued the proceedings instituted against the applicant by his girlfriend and her brother-in-law for physical assault and material damage.", "30. On 4 March 1998 the applicant lodged an appeal against the decision of 12 November 1997 refusing to open a criminal investigation. The appeal was registered on 11 March 1998 by the military section of the Prosecutor General's Office. They sent it to the military prosecutor of the Bucharest Court of Appeal, who, in turn, sent it back to the Constanţa Chief Military Prosecutor.", "31. On 4 May 1998 the Constanţa Chief Military Prosecutor dismissed the applicant's appeal on the ground that no evidence had been adduced that the police officers had beaten the applicant, “a 25-year-old gypsy” “well known for causing scandals and always getting into fights”. He found that, on the contrary, the applicant's injuries “might have been caused during the altercation which he had had with fellow members of his ethnic group. As a matter of fact, there were indications that the young man's father, who had been very insistent under the hypothetical title of a leader of an ethnic local association, had tried to use the complaint against the policemen to extinguish the other conflict”.", "32. On 23 September 1998 the applicant lodged an appeal with the military section of the Prosecutor General's Office.", "33. On 18 November 1998 the Chief Prosecutor of the military section of the Prosecutor General's Office informed him that his appeal had been dismissed and that the decision was final.", "2. Facts as submitted by the Government", "34. The Government submitted that the applicant had been beaten up by Crinel M. and that these facts had been confirmed by some of the witnesses heard during the investigation, in particular by the applicant's girlfriend, who had seen the applicant being beaten up by Crinel M. from the roof of the building, and by three police officers, who had noted very recent marks of violence on the applicant's face when he arrived at the police station. The Government pointed out in this connection that the applicant's allegation that he had bruises on his face had been contradicted by the medical forensic examination, which did not reveal any such marks.", "35. The Government also denied that Major P. had pre-dated the statements given to him on 10 July by the police officers questioned, and contended that the date of 11 July 1997 which the police officers wrote in their statements was obviously a mistake." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL SOURCES", "1. Relevant domestic law and practice", "36. The relevant provisions of the Code of Criminal Procedure in force at the time when the facts occurred read as follows:", "Article 10", "“Criminal proceedings cannot be instituted and, if instituted, cannot be continued if", "(a) the act was not committed at all;", "(...)", "( c) the act was not committed by the defendant;", "...”", "Article 14", "“The aim of the civil action is to establish the civil liability of the accused and the liability for damages of any other person who can be held legally responsible.", "The civil action can be brought together with the criminal action in a criminal trial, by way of joining the proceedings.”", "Article 15", "“The person who has suffered civil damage can join the criminal proceedings...", "He or she can do so either during the criminal investigation... or before the court...”", "Article 22", "“The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act.”", "Article 19", "“(1) The victim who has not joined the criminal proceedings instituted before the court can lodge an action with a civil court ...", "“(2) The civil proceedings will be suspended until the criminal case is decided.", "...”", "Article 278", "“Complaints about decisions and acts of the prosecutor ... shall be examined by the chief prosecutor at the Prosecutor's Office. If it is the chief prosecutor who took the decision ... the complaint shall be examined by the higher Prosecutor's Office ... ”", "Article 343 § 3", "“In case of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action.", "Civil damages cannot be awarded if the accused is acquitted on the ground that the impugned act did not occur or was not committed by the accused.”", "37. In its decision no. 486 of 2 December 1997, the Constitutional Court ruled that Article 278 of the Code of Criminal Procedure was constitutional only in so far as it did not deny anyone who was dissatisfied with a decision of the Prosecutor's Office direct access to a court in accordance with Article 21 of the Constitution.", "38. Law no. 281 of 24 June 2003 amended the Code of Criminal Procedure. It introduced, inter alia, Article 278(1) regulating appeals to the courts against the prosecutor's decision. It prescribes the time-limit for lodging an appeal, the competent court and the procedure to be followed.", "39. The relevant provisions of the Civil Code are worded as follows:", "Article 998", "“Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”", "Article 999", "“Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.”", "40. The Government submitted a number of cases in which the domestic courts had decided that the prosecutor's decision, based on Article 10 (b) of the Code of Criminal Procedure, not to open a criminal investigation on account of the absence of intention – as an element of the offence – did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question.", "41. The Government submitted a single case, dating back to 1972, in which the Supreme Court had decided that the prosecutor's decision, based this time on Article 10 (a) and (c) of the Code of Criminal Procedure, not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant, should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question. However, the Supreme Court's decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action.", "42. The common view of the criminal-procedure specialists is that a civil court cannot examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in Article 10 (a) and (c) of the Code of Criminal Procedure that the acts were not committed at all or were not committed by the defendant (see Criminal Procedural Law – General Part, Gheorghe Nistoreanu and Others, p. 72, Bucharest 1994, and A Treaty on Criminal Procedural Law – General Part, Nicolae Volonciu, pp. 238-39, Bucharest 1996).", "43. The common view of the civil-procedure specialists and of some criminal-procedure specialists is that the prosecutor's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph, does not prevent a civil court from examining a civil action brought against the defendant and from making its own assessment on the facts which were committed and by whom. However, the view is that when making this assessment, civil courts have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation (see The Civil Action and the Criminal Trial, Anastasiu Crişu, RRD no. 4/1997, and Criminal Procedural Law, Ion Neagu, p. 209, Bucharest 1988).", "2. International documents on the situation of the Roma community in Romania", "44. In its Resolution No. 1123/1997 on the honouring of obligations and commitments by Romania, the Parliamentary Assembly of the Council of Europe urged the Romanian Government “to promote a campaign against racism, xenophobia and intolerance and take all appropriate measures for the social integration of the Roma population”.", "45. The European Union's Commission noted in the 1998 Regular Report on Romania's progress towards Accession, that “discrimination against the large Roma minority in Romania remains widespread” and that in “general terms, the protection of minorities in Romania remains satisfactory, with the major exception of Roma”.", "46. In its Regular Report on Romania's progress towards Accession of 8 November 2000, the European Commission stated, inter alia, that", "“Roma remain subject to widespread discrimination througout Romanian society. However, the Government's commitment to addressing this situation remains low and there has been little substantial progress in this area since the last regular report”.", "47. In its publication “Roma - Justice Delayed, Justice Denied”, issued in 1998, Amnesty International reported cases of killings, beatings and other forms of ill-treatment of Roma and criticised the failure of law enforcement officers to protect Roma from racist violence in Romania.", "48. US Department Yearly Reports on Romania from 2000 until 2006 reported routine police brutality - including beatings - and racial harassment of the Roma population, and noted that investigations of police abuses generally were lengthy, inconclusive and rarely resulted in prosecution or punishment.", "49. In its second report on Romania adopted on 22 June 2001, the European Commission against Racism and Intolerance (ECRI) found that:", "“Grave problems ... persist throughout the country as regards police attitudes and behaviour towards members of the Roma/Gypsy community. ECRI deplores in particular that cases of police violence against members of the Roma/Gypsy community, including the use of firearms, continue to occur, and have led to serious and sometimes lethal injuries...", "Such abuses, although well-documented and reported to the authorities by the non-governmental organisations and individuals, do not appear to be thoroughly investigated or sanctioned: cases which are investigated are usually dismissed...”", "50. On 24 June 2005 ECRI adopted a third report on Romania, in which it stated the following on the progress made by the Romanian authorities in improving the situation of Roma:", "“... As regards the existence of a body responsible for looking into complaints made against police officers or law enforcement officials, the Romanian authorities have told ECRI that a procedure has been set in motion for that purpose within the Ministry of the Interior itself. [...] However, although the Romanian authorities have acknowledged that large numbers of police officers have been arrested for wrongful behaviour, they have provided no information on the victims. Furthermore, ECRI notes with concern that despite the existence of these procedures, the Romanian authorities have stated that no complaints have been recorded against police officers or law enforcement officials for discriminatory acts. It therefore wonders whether this does not reflect a lack of confidence among the general public in the authorities'capacity to punish the perpetrators of such acts. ”", "51. In a report on his first visit to Romania between 5 to 9 October 2002, the Council of Europe's Commissionner for Human Rights stated, inter alia, with regard to the Roma community in Romania :", "“47. The Roma/Gypsy community suffers greatly from poverty, unemployment, lack of schooling, lack of access to health care and justice and discrimination in all its forms. Likewise, according to Roma/Gypsy organisations, one of this community's growing concerns is the \"anti ‑ Roma/Gypsy phenomenon\", which is gaining ground both in Romania and in Europe .”", "52. In his follow-up report on Romania for the period 2002-2005, the Commissioner described as follows the general situation of the Roma community:", "“ 54. According to the 2002 census, 535,250 persons were registered as Roma, representing 2.5% of the Romanian population. Nonetheless, the UNHCR estimated in 2004 that the Roma population actually numbered between 1.8 and 2.5 million persons.", "[...]", "56. From a general point of view, the Roma situation continues to be a cause for concern. The NGOs and the representatives of the Roma community continue to report violence on the part of the police and discrimination and state that a negative image of the Roma is spread by the media and a part of the political class.", "[...]”.", "THE LAW", "I. ADMISSIBILITY", "53. The Government raised an objection of non-compliance with the six-month rule. While conceding that Article 278 of the Criminal Procedure Code provided that a complaint could be lodged against the decision of a prosecutor with the superior prosecutor and thereafter with the Prosecutor General, they submitted that the applicant's complaint lodged with the Prosecutor General's Office on 23 September 1998 was not an effective remedy. As a consequence, the six-month time-limit laid down by Article 35 of the Convention had started to run on 4 May 1998, when the Constanţa Chief Military Prosecutor confirmed the decision not to press charges, and not, as suggested by the applicant, on 18 November 1998, when the military section of the Prosecutor General's Office informed him that they had dismissed his appeal.", "They further asked the Court to dismiss the application for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention and argued that, in accordance with the Constitutional Court's decision no. 486 of 2 December 1997, the applicant could have brought an action before a court challenging the military prosecutors'decision not to press charges.", "54. The applicant claimed that he had simply followed the internal law, which allowed him to appeal up to the Prosecutor General's Office.", "In reply to the alleged possibility of challenging before a court a decision not to press charges, he stressed that in a number of decisions adopted by the Supreme Court subsequent to the Constitutional Court's decision of 4 May 1998, it had been held that complaints before a court against a prosecutor's decision not to press charges were inadmissible.", "55. The Court observes that Article 278 of the Code of Criminal Procedure provides that the prosecutor's decisions can be challenged before the superior prosecutor, which is precisely what the applicant did. It further recalls that it has previously dismissed an analogous objection by the Government of non-exhaustion of domestic remedies in a similar case (see Notar v. Romania (dec.), no. 42860/98, 13 November 2003). The Court finds no reason to reach a different conclusion in the instant case. It therefore dismisses the Government's objections.", "56. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "57. The applicant complained that he had been subjected to ill-treatment while in police custody, in violation of Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "58. The Government contested the applicant's allegations. They submitted that the applicant was not formally arrested, but came of his own volition to the police station, where he stayed no more than two hours. The police had no obligation whatsoever to subject the applicant to a medical examination in order to establish his state of health at the time of his arrival at the police station. They further stated that the medical forensic certificate submitted by the applicant referred only to lesions on those parts of the body normally covered by clothing. It did not refer to bruises on the applicant's face. This certificate was consonant with Venuşa L.'s statement, according to which upon his arrival at the police station, the applicant had no traces of violence on the uncovered parts of the body. On the other hand, according to the Government, distinct pieces of evidence, such as the statements made by Steluţa M and by police officer Dumitru CI., indicated that the applicant had been in a fight with Crinel M. prior to his arrival at the police station. The Government concluded that there was not enough evidence to indicate that the applicant was in good health when he arrived at the police station.", "59. The applicant contended that he had been in police custody at least for the purpose of Article 3, since he could not have left the building without the permission of the police officers questioning him and they had kept his identity card. Therefore, the authorities had to give an alternative explanation for the injuries on his body. Many of the injuries were on his head and fingers, and therefore visible. The applicant stressed that the Government's allegations that the injuries had been caused by Crinel M. were full of inconsistencies. First of all, Crinel M. had himself denied having hit the applicant, while admitting that the applicant “would have deserved it”. Moreover, no investigations were ever initiated against Crinel M. for physically assaulting the applicant, although the military prosecutor made this finding with respect to the injuries on the applicant's body. The applicant argued that it was only in October 1997, more than four months after the events, that some police officers stated that they had seen bruises on his body upon his arrival at the police station. Such statements could therefore be seen as attempts to protect their colleagues.", "60. The Court reiterates that Article 3 enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 of the Convention even in the event of a public emergency threatening the life of the nation (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p. 3288, § 93).", "61. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92).", "62. In considering whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers, cited above, § 74). The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.", "63. The Court considers that the degree of bruising found by the doctors who examined Mr Cobzaru ( see paragraphs 14 and 16 above ) indicates that the latter's injuries, whether caused by the police or by someone else, were sufficiently serious to amount to ill-treatment within the scope of Article 3 (see, for example, A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 21, and Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, pp. 9 and 26, §§ 13 and 39). The Government did not dispute that the applicant's injuries, assuming that it were proved that they had been deliberately inflicted on him while under police control, reached a level of severity sufficient to bring them within the scope of Article 3.", "It remains to be considered whether the State should be held responsible under Article 3 in respect of these injuries.", "64. The Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "65. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, cited above, Series A no. 336, § 32, and Avşar, cited above, § 283) even if certain domestic proceedings and investigations have already taken place.", "66. The Court observes that shortly after he left the police station in the evening of 4 July, the applicant was admitted to Mangalia Hospital with injuries diagnosed as craniocerebral trauma. On 7 July 1997 he was discharged from the hospital. On 8 July 1997 a forensic doctor examined him and found bruises around his eyes, on the fingers of his right hand, on his chest, on his right thigh and calf, and a haematoma on his head. The applicant alleged that all these injuries had been caused by the policemen during the time he spent in the police station, whereas the Government alleged that it was Crinel M. who had hit the applicant shortly before the latter arrived at the police station.", "67. It is not disputed that the applicant was the victim of violence on 4 July 1997 either shortly prior to his arrival at the police station or during his stay at the police station. Having regard to the seriousness of the injuries sustained by the applicant, the Court finds it inconceivable that, had the applicant arrived at the police station with bruises on his body, the policemen would not have noticed them. Moreover, had the police noticed any bruises, they would normally have questioned him as to their origin and either taken him to the hospital or called a doctor.", "68. The Court observes that, despite the Government's allegation, there is no evidence of anyone hitting the applicant before he entered the police station. In particular, no evidence gathered by the police immediately after the incident, that is, in July 1997, suggests that the applicant had been hit by Crinel M., save for the applicant's statement of 4 July 1997, which he withdrew on 8 July, alleging that it had been made under pressure from the police.", "It was not until 6 October 1997 that three policemen presented a new version of the events, stating that the applicant arrived at the police station after the policemen had come back from the on-site investigation of 4 July 1997, and that he had bruises on his body upon arrival. None of the eyewitnesses to the altercation between the applicant and Crinel M. confirmed the new version presented by the police, namely, that Crinel M. had beaten the applicant up. As to Crinel M., he consistently denied having beaten the applicant up.", "69. Turning to the findings of fact made by the prosecutors, the Court finds that they were entirely based on the accounts of October 1997 given by the police officers accused of ill-treatment or their colleagues. Not only did the prosecutors accept without reserve the submissions of these police officers, they also appear to have disregarded crucial statements, such as those of Rita G., eyewitness to the altercation between the applicant and Crinel M., and of Venuşa L., who had accompanied the applicant to the police station. The latter stated in July and September 1997 that the applicant had had no bruises before going to the police, but had presented marks of violence when he left the police station.", "70. The investigation carried out by the domestic authorities appears to have had other shortcomings. In particular, except for Rita G., none of the other neighbours who had witnessed the incident between the applicant and Crinel M. was questioned. Nor was the police officers Gheorghe C. mentioned in Dumitru CA.'s statement of 11 July 1997 ( paragraph 19 ).", "71. It is also noteworthy that the applicant himself was never questioned about the origin of his bruises, either when allegations were made that it was Crinel M. who had beaten him up, or after he had complained to the prosecutor that it was the police who had beaten him up. Similarly, none of the police officers who had declared that the applicant had bruises upon his arrival at the police station was asked to explain why he had not been questioned about the origin of his bruises either on his arrival at the police station on 4 July 1997 or later, when they learned that he had been admitted to hospital. No explanation was provided by the authorities as to why no steps had been taken to investigate his alleged beating by Crinel M.", "72. The Court also notes that the decision of 4 May 1998 of the Constanţa Chief Military Prosecutor not only failed to clarify the issue of who was responsible for the applicant's injuries, but in addition formulated certain accusations against various individuals without adducing any evidence in support of those accusations.", "73. Finally, the Court notes a number of contradictions in the investigation file: whereas Dumitru CA. declared on 11 July 1997 that the applicant arrived at the police station before the police patrol had come back, police officer Marius I. stated on 6 October 1997 that the applicant had arrived after the team of policemen had come back from the investigation (see paragraphs 20 and 27 ). Moreover, the prosecutor's decision of 12 November 1997 refusing to open a criminal investigation in respect of the police officers mentioned that it was on 4 July 1997 that the applicant had destroyed some of his girlfriend's clothes, whereas Steluţa's mother stated on 9 July 1997 that this had happened on 28 June ( see paragraphs 20 and 28).", "74. In the light of the above and on the basis of all the material placed before it, the Court considers that the Government have not satisfactorily established that the applicant's injuries were caused otherwise than by the treatment inflicted on him while he was under police control at the police station on the evening of 4 July 1997, and concludes that these injuries were the result of inhuman and degrading treatment. Accordingly, there has been a violation of Article 3 of the Convention.", "75. Having regard to the above-mentioned deficiencies identified in the investigation, the Court also concludes that the State authorities failed to conduct a proper investigation into the applicant's allegations of ill-treatment. Thus, there has been a violation of Article 3 of the Convention also under its procedural head.", "III. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION", "76. The applicant maintained that the investigation conducted by the authorities was insufficient to meet the Convention standards. In this respect, he invoked Article 6 § 1 of the Convention, which provides, in so far as relevant:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”", "and Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "77. The Government contended that the alleged assault on the applicant on 4 July 1997 had been adequately investigated and that therefore the Romanian legal system had not failed to afford the applicant an effective remedy.", "A. Article 6 § 1 of the Convention", "78. The Court observes that the applicant's grievance under Article 6 § 1 of the Convention is inextricably bound up with his more general complaint concerning the manner in which the investigating authorities treated his complaint that he had been beaten up by the police on 4 July 1997 and the repercussions which this had on his access to effective remedies. It accordingly finds it appropriate to examine this complaint in relation to the more general obligation on States under Article 13 to provide an effective remedy in respect of violations of the Convention (see, among other authorities, Kaya v. Turkey, judgment of 19 February 1998, Reports 1998 ‑ I, p. 329, § 105 ).", "79. The Court therefore finds it unnecessary to determine whether there has been a violation of Article 6 § 1.", "B. Article 13 of the Convention", "80. The Court reiterates that Article 13 of the Convention guarantees the availability, at the national level, of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law; in particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Tekdağ v. Turkey, no. 27699/95, §95, 15 January 2004).", "81. The Court reiterates that Article 13 of the Convention requires that where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. The Contracting States are afforded some discretion as to the manner in which they comply with their Convention obligations under this provision. As a general rule, if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI; see also Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002 ‑ I ).", "82. However, the scope of the State's obligation under Article 13 varies depending on the nature of the applicant's complaint, and in certain situations the Convention requires a particular remedy to be provided. Thus, in cases of suspicious death or ill-treatment, given the fundamental importance of the rights protected by Articles 2 and 3, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the acts of ill-treatment (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-162, ECHR 2002 ‑ IV; Assenov and Others v. Bulgaria, cited above, § 114 et seq.; and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005).", "83. On the basis of the evidence adduced in the present case, the Court has found that the State authorities were responsible for the injuries sustained by the applicant on 4 July 1997. The applicant's complaints to the domestic authorities in this regard were based on the same evidence and were therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52). The authorities thus had an obligation to carry out an effective investigation into his allegations against the police officers. For the reasons set out above no effective criminal investigation can be considered to have been carried out in accordance with Article 13, the requirements of which are broader than the obligation to investigate imposed by Article 3 (see mutatis mutandis, Buldan v. Turkey, no. 28298/95, § 105, 20 April 2004; Tanrıkulu v. Turkey, no. 23763/94, § 119, ECHR 1999-IV; and Tekdağ, cited above, § 98). Consequently, any other remedy available to the applicant, including a claim for damages, had limited chances of success and could be considered as theoretical and illusory, and not capable of affording redress to the applicant. While the civil courts have the capacity to make an independent assessment of fact, in practice the weight attached to a preceding criminal inquiry is so important that even the most convincing evidence to the contrary furnished by a plaintiff would often be discarded and such a remedy would prove to be only theoretical and illusory (see Menesheva v. Russia, no. 59261/00, § 77, 9 March 2006, and Corsacov v. Moldova, no. 18944/02, § 82, 4 April 2006). This is illustrated by the fact that among the numerous examples of domestic case-law submitted by the Government, some dating back to the 1970s, there has not even been one case showing that a civil court would not consider itself bound by a decision of the prosecuting authorities finding that the State agents had not committed ill-treatment.", "The Court can therefore conclude that, in the particular circumstances of the case, the possibility of suing the police for damages is merely theoretical.", "84. The Court therefore finds that the applicant has been denied an effective remedy in respect of his alleged ill-treatment by the police. Consequently, there has been a violation of Article 13 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLES 3 AND 13 OF THE CONVENTION", "85. The applicant complained that the ill-treatment he suffered and the refusal of the military prosecutor to indict the police officers responsible for the ill-treatment was in substantial part due to his Roma ethnicity, and therefore inconsistent with the requirement of non-discrimination laid down by Article 14 taken together with Articles 3 and 13. Article 14 of the Convention provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "86. The applicant maintained that the ill-treatment he was subjected to by the police while he was inside the Mangalia police station and the passive conduct of the authorities resulted mainly from the fact that he was of Roma origin. He contended that his ethnic origin was known to the police officers. He also alleged that his ethnic origin was openly and repeatedly referred to by the investigating authorities as a factor militating against his complaint of police abuse. The applicant stressed that his allegation should be evaluated within the context of the well-documented and repeated failure of the Romanian authorities to remedy instances of anti-Roma violence and to provide redress for discrimination.", "87. The Government considered the applicant's complaint to be unsubstantiated.", "88. The Court's case-law on Article 14 establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of its enrichment. (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 ‑ VII).", "89. The Court further recalls that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events (see, Nachova and others v. Bulgaria, cited above, § 160).", "90. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, Nachova and others v. Bulgaria, cited above, with further references).", "91. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use its best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see, Nachova and others v. Bulgaria, cited above, § 160 ).", "92. Faced with the applicant's complaint under Article 14, the Court's task is to establish first of all whether or not racism was a causal factor in the applicant's ill-treatment by the police and in relation to this, whether or not the respondent State complied with its obligation to investigate possible racist motives. Moreover, the Court should also examine whether in carrying out the investigation into the applicants'allegation of ill-treatment by the police, the domestic authorities discriminated against the applicant and if so, whether the discrimination was based on his ethnic origin.", "93. As to the first limb of the complaint, in particular the allegation that the ill-treatment was based on racial prejudice, the Court recalls that in assessing evidence in this connection, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States'responsibility under the Convention. In the proceedings before it, the Court puts no procedural barriers on the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties'submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, Nachova and others v. Bulgaria, cited above, § 147 and further references).", "94. The Court notes that the applicant did not refer to any specific facts in order to substantiate his claim that the violence he sustained was racially motivated. Instead, he claimed that his allegation should be evaluated within the context of documented and repeated failure by the Romanian authorities to remedy instances of anti-Roma violence and to provide redress for discrimination.", "95. However, the expression of concern by various organisations about the numerous allegations of violence against Roma by Romanian law enforcement officers and the repeated failure of the Romanian authorities to remedy the situation and provide redress for discrimination does not suffice to consider that it has been established that racist attitudes played a role in the applicant's ill-treatment.", "96. Turning to the other aspect of the applicant's allegation, namely the State's obligation to investigate possible racist motives, the Court notes that it has already found that the Romanian authorities violated Article 3 of the Convention in that they failed to conduct a meaningful investigation into the applicant's ill-treatment (see paragraphs 69 to 75 above).", "It also notes that there was no allegation of any racist verbal abuse having been uttered by the police during the incident involving the use of force against the applicant. Therefore, contrary to the situation in the case of Nachova and others (judgment cited above, § 166), the prosecutors in the present case did not have before them prima facie plausible information of hatred-induced violence requiring investigation into possible racist motives in the events.", "97. However, the Court observes that the numerous anti-Roma incidents which often involved State agents following the fall of the communist regime in 1990, and other documented evidence of repeated failure by the authorities to remedy instances of such violence were known to the public at large, as they were regularly covered by the media. It appears from the evidence submitted by the applicant that all these incidents had been officially brought to the attention of the authorities and that as a result, the latter had set up various programmes designed to eradicate such type of discrimination. Undoubtedly, such incidents, as well as the policies adopted by the highest Romanian authorities in order to fight discrimination against Roma were known to the investigating authorities in the present case, or should have been known, and therefore special care should have been taken in investigating possible racist motives behind the violence.", "98. Not only was there no attempt on the part of the prosecutors to verify the behaviour of the policemen involved in the violence, ascertaining, for instance, whether they had been involved in the past in similar incidents or whether they had been accused of displaying anti-Roma sentiment, but the prosecutors made tendentious remarks in relation to the applicant's Roma origin throughout the investigation (see paragraphs 28 and 31 above ). No justification was advanced by the Government with regard to these remarks.", "99. The Court has already found that similar remarks made by the Romanian judicial authorities regarding an applicant's Roma origin were purely discriminatory and took them into account as an aggravating factor in the examination of the applicants'complaint under Article 3 of the Convention in the case of Moldovan and Others v. Romania (no. 2) (nos. 41138/98 and 64320/00, judgment of 12 July 2005, §§ 108 to 114 and 120 and 121).", "100. In the present case, the Court finds that the tendentious remarks made by the prosecutors in relation to the applicant's Roma origin disclose a general discriminatory attitude of the authorities, which reinforced the applicant's belief that any remedy in his case was purely illusory.", "101. Having regard to all the elements above, the Court finds that the failure of the law enforcement agents to investigate possible racial motives in the applicant's ill-treatment combined with their attitude during the investigation constitutes a discrimination with regard to the applicant's rights contrary to Article 14 taken in conjunction with Articles 3 in its procedural limb and 13 of the Convention.", "It follows that there has been a violation of Article 14 of the Convention taken together with Articles 3 under its procedural head and 13.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "102. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "103. The applicant claimed 60,000 euros (EUR) in respect of non ‑ pecuniary damage.", "104. The Government requested the Court to dismiss the applicant's claims since they were exaggerated and unsubstantiated.", "105. The Court notes that the applicant suffered numerous injuries at the hands of State agents, such as cranial trauma and bruises around his eyes, on the fingers of his right hand, on his chest, and on his right thigh and calf. The Court has found the authorities of the respondent State to be in breach of Article 3 on account of the ill-treatment inflicted on the applicant by State agents and on account of the authorities'failure to investigate the applicant's allegations. It has further found that the applicant was denied an effective remedy in respect of his alleged ill-treatment by the police in breach of Article 13 and that the applicant was discriminated against based on his ethnic origin in the enjoyment of his rights under Article 3 and 13. In these circumstances, it considers that the applicant's suffering and frustration cannot be compensated for by a mere finding of a violation. Having regard to its previous case-law in respect of Article 3 (see in particular, Khudoyorov v. Russia, no. 6847/02, ECHR 2005 ‑ X (extracts); Matko v. Slovenia, no. 43393/98, judgment of 2 November 2006; and Dilek Yilmaz v. Turkey, no. 58030/00, judgment of 31 October 2006 ) and making its assessment on an equitable basis, the Court awards him EUR 8,000.", "B. Costs and expenses", "106. The applicant claimed a further EUR 14,271 for legal costs and expenses incurred both at the domestic level and during the proceedings before the Court by his representatives, to be paid directly to them as follows:", "( i ) the European Roma Rights Centre requested EUR 605 for 15 hours'legal work spent reviewing the evidence and pleadings, advising on strategy, and drafting the submissions to the Court;", "(ii) the applicant also submitted a contract of legal assistance concluded with his lawyer, Ms Macovei, according to which the latter would be paid according to certain fees per hour, based on a schedule of hours actually worked. A detailed document was submitted indicating the precise dates and the number of hours worked in preparing the case, which amounted to 116 hours in all, and the hourly fee for each type of activity : EUR 5 per hour for simple letters and other secretarial activities, EUR 20 per hour for travel expenses necessarily incurred, EUR 45 per hour for meetings, interviews and written statements and EUR 120 per hour for research on case-law and legislation, studying the case-file's documents, drafting the observations on the admissibility and merits and just satisfaction. Detailed time- sheets of the hours actually worked were also submitted, including time-sheets and costs of travelling between Bucharest and Mangalia and for the meetings between the lawyer and the applicant and his father. The total fees requested by the lawyer amounted to EUR 13,366;", "(iii) finally, the Romanian Helsinki Committee requested EUR 300 for technical support and various correspondence.", "107. The applicant's representatives argued that the number of hours spent by them on the case was not excessive and was justified by its complexity and abundance of detail. The time was also justified by the repeated attempts to obtain access to the medical file and by the fact that all the correspondence with the Court was conducted in a foreign language.", "108. As to the hourly fees, the representatives argued that it was within the average of the fees which are normally charged by law firms in Bucharest, that is, EUR 200 per hour. In addition, an hourly fee of EUR 120 was reasonable, having regard to the lawyer's reputation as an expert in the field of human rights.", "109. The Government did not dispute the number of hours spent by the applicant's representatives, given the complexity of the case. However, they considered that the lawyer's hourly rate of EUR 120 was excessive, and referred in this respect to a number of Bulgarian cases where the Court had granted fees amounting to hourly rates of EUR 40-50. They further submitted that the applicant had not submitted any contract with the European Roma Rights Centre as an objective basis for calculating its fees. Finally, they submitted that the amount of EUR 300 requested by the Helsinki Committee was not supported by any proof.", "110. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum ( see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 200 6 ). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Chamber may reject the claim in whole or in part.", "111. In the present case, having regard to the above criteria, to the itemised list submitted by the applicant and to the number and complexity of issues dealt with and the substantial input of the lawyers from 1999 until today, the Court awards the applicant the requested amount, as follows: EUR 605 to the European Roma Rights Centre, EUR 13,366 to Ms Monica Macovei and EUR 300 to the Romanian Helsinki Committee, to be paid separately to a bank account indicated by each of the applicant's representatives.", "C. Default interest", "112. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant is of Roma ethnic origin and lives in Nea Zoe, in Aspropyrgos (western Attica ), in a Roma settlement.", "A. Outline of the events", "6. On 28 January 2002, between 11 a.m. and 1 p.m., the Police Directorate of western Attica, on the initiative of Aspropyrgos police station, conducted a large-scale police operation in the Roma settlement of Nea Zoe. The operation was aimed at arresting persons who, according to information obtained by the police, were involved in drug trafficking. Thirty-two police officers and one judicial official took part in this operation, in the course of which eleven Roma dwellings were searched and four individuals arrested.", "7. The applicant, who was two and a half months pregnant, was in the settlement at the time of the operation.", "1. The applicant's version", "8. The applicant and other Roma women were rounded up by the police for a body search. According to her statement, whilst the police operation was taking place the applicant waited her turn to be searched by the police who were searching other residents of the settlement. She noticed that certain police officers were taunting a disabled Roma who was a relative of hers.", "9. As she moved to approach the police officers, she was forcefully pushed back by one of them while another one kicked her in the back, in spite of the fact that she had shouted that she was pregnant. As a result of the kick, the applicant felt an intense pain in the abdominal area and started bleeding. Although the bleeding was obvious to all the police officers present, the applicant was not taken to hospital. Not having any personal documents – as she was at the time an unregistered stateless person – and being alone, she felt she could not go to the hospital on her own for fear of being refused treatment.", "10. The next day she informed members of the Greek Helsinki Monitor that she had been kicked by a police officer and that she was bleeding. One of them then rushed her to Elena Venizelou Maternity Clinic, where she was admitted immediately. She underwent a number of medical tests.", "11. On 1 February 2002 the applicant suffered a miscarriage and was kept under medical supervision until 5 February 2002, when she was discharged from the hospital.", "2. The Government's version", "12. According to the version of events given by the Government, the police officers who participated in the police operation of 28 January 2002 did not use force against civilians. Neither the four persons arrested nor any other individual who was in the settlement during the operation had been assaulted or subjected to racial abuse. The presence of a judicial officer guaranteed the police officers'proper conduct.", "B. Medical report", "13. According to the medical report drawn up at the end of the examination, “the applicant was admitted to the hospital on 29 January 2002, 10 weeks pregnant, with haemorrhaging from her uterus (risk of spontaneous abortion). On 2 February 2002 there was a complete expulsion of the foetus and on 4 February 2002 her uterus was cleaned”.", "C. Criminal proceedings", "14. On 1 February 2002 counsel for the applicant lodged a criminal complaint with the Athens public prosecutor against the police officer who had allegedly used violence against the applicant and whose identity was unknown to her. In the complaint the applicant joined the proceedings as a civil party seeking damages, asked to be examined by a forensic doctor and named three persons who could testify as witnesses. She also included the address and telephone numbers of her lawyers.", "15. On 10 February 2002 the Athens public prosecutor sent a letter to the commander of Aspropyrgos police station requesting that a preliminary inquiry ( προανάκριση ) be launched into the allegations contained in the applicant's criminal complaint so as to identify the unknown perpetrators, who would be charged with inflicting serious bodily harm under Articles 308 § 1 (a) - 309 of the Greek Criminal Code.", "16. On 11 March 2002 two witnesses named by the applicant submitted a written testimony to the police officer in charge of the preliminary inquiry. On the same date the applicant submitted a written memorandum to the police requesting that the police officers from Aspropyrgos police station be excluded from conducting the preliminary inquiry since officers from that station had participated in the operation in question and it was most likely that one of them had ill-treated her.", "17. By a letter dated 12 March 2002 the commander of Aspropyrgos police station informed the Athens public prosecutor of the applicant's request and asked him to make a decision and issue the relevant order as to whether he should continue to conduct the preliminary inquiry. It cannot be ascertained from the case file whether the public prosecutor replied. However, Aspropyrgos police station continued with the preliminary inquiry.", "18. On 1 May 2002 two police officers, the head of the security division of Aspropyrgos police station and the head of the anti- crime unit of Elefsina police station respectively, testified before the police officer conducting the preliminary inquiry. Both officers stated that they did not have any knowledge of ill-treatment inflicted upon the applicant.", "19. On 28 November 2002 the investigation file was forwarded to the Athens public prosecutor. In the covering letter the Aspropyrgos police station commander repeated the applicant's request that the police officers serving at his police station be prevented from conducting the preliminary inquiry.", "20. On 10 September 2003 the Athens public prosecutor requested the Elefsina magistrate ( πταισματοδίκης ), the competent judicial authority, to summon the applicant and any other witnesses she wished to call.", "21. On 16 January 2004 a court bailiff visited the settlement where the applicant lived in order to summon her and another woman to testify before the Elefsina magistrate on 26 January 2004. The court bailiff stated that she was unable to find either the applicant or the other witness and that she had been informed by police officers from Aspropyrgos police station that the two women had moved to “an unknown address”.", "22. On 26 January 2004 the Elefsina magistrate returned the case file to the Athens public prosecutor.", "23. On 3 July 2004 the Athens public prosecutor closed the file with the indication “Perpetrator unknown”. The authorities did not inform the applicant or her legal representatives that the file had been closed. On 28 July 2004, when making an enquiry at the Athens public prosecutor's office, the Greek Helsinki Monitor was informed that the case had been closed.", "24. On 1 September 2004 the Greek Helsinki Monitor sent a letter to the Aspropyrgos police station commander, enclosing a copy of the bailiff's statement and enquiring as to how the police officers could have been aware of the applicant's change of address.", "25. In his reply dated 6 September 2004 the Aspropyrgos police station commander commented on the court bailiff's reference to Aspropyrgos police station's having informed her that the applicant had moved to “an unknown address”. According to the station commander, the reference was general and vague and thus could not be confirmed and the records of the police station did not contain any relevant information.", "D. Administrative investigation into the incident", "26. In the meantime, on 5 March 200 2, responding to the publicity that had been generated, the Chief of the Greek Police launched an informal investigation in order to clarify whether the police operation of 28 January 2002 had involved unlawful or excessive use of force by members of the police. The investigation was conducted under the direct supervision of the Deputy Director of Police, A. V. , who had been actively involved in the police operation of 28 January 2002. As he stated in his report : “[T]he general supervision and coordination of the police actions had been orally assigned by the commander of the Police Directorate of western Attica to the undersigned, who prepared the action plan and personally supervised the police officers'action on the operational level.”", "27. Police officer A. V. proceeded to question five senior police officers who had participated in the operation in question. According to their statements, they had not witnessed any of their colleagues ill-treating the Roma residents.", "28. On 6 March 2002 the police went to the applicant's settlement in order to serve her with a summons for interview, but did not find her.", "29. On 7 March 2002 the report on the findings of the informal investigation was issued. According to the report, the presence of a judicial officer during the police operation guaranteed that, in the event of incidents of police brutality, the public prosecutor would be informed. Furthermore, according to officer A. V .'s findings : “the complaints are exaggerated ... It is in fact a common tactic employed by the athinganoi ( Greek word for Roma) to resort to the extreme slandering of police officers with the obvious purpose of weakening any form of police control.” The report concluded that, given that a criminal investigation had already been initiated, it was advisable to suspend the disciplinary proceedings until either a criminal court had ruled on the case or the alleged perpetrator had been identified. In accordance with this recommendation, the disciplinary proceedings were suspended." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "30. The Greek Ombudsman issued a report on 12 October 2004 entitled “Disciplinary / administrative investigations into allegations against police officers”. It stated as follows in relation to investigations into complaints raising serious issues, such as excessive use of force and/ or police brutality :", "“ 4. Failure to conduct Sworn Administrative Inquiry ( Ενορκη Διοικητική Εξέταση, – SAI)", "The fact that informal investigations are more frequently conducted - informal investigations represent some 66% of the investigations carried out in total - raises the important question whether the methods of investigation used by the Greek Police are adapted to the offences complained of. In a number of cases where an informal investigation was carried out, although the nature of the offence complained of required an SAI, the Ombudsman observed that although there were elements that would have justified disciplinary proceedings against police officers, the Greek Police refused to carry out an SAI. ... Such complaints [concerning allegations of ill-treatment or police brutality ] could not be easily rejected on the basis of an informal investigation, given that they are often substantiated with forensic examinations or other medical certificates. ... In the following examples, an SAI was not carried out although the nature of the offences required it : ( a) use of physical force: e.g. ... striking and subsequent miscarriage of a pregnant woman of Roma origin ... The Greek Ombudsman observed that the Greek Police omit, on a regular basis, to institute disciplinary proceedings even in cases where the existence of strong objective evidence, such as witness statements, photographs, forensic reports, medical certificates etc. , cannot be denied. Such evidence cannot be summarily overruled but needs to be examined thoroughly through the formal procedure of an SAI. Cases with strong evidence requiring an SAI that was never conducted: (a) forensic or medical reports: e.g. ... a pregnant woman of Roma origin suffered a miscarriage after being struck ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION", "31. The applicant complained under Article 3 of the Convention that she had been subjected to acts of police brutality which had caused her great physical and mental suffering amounting to torture, inhuman and/or degrading treatment or punishment. She also complained under the same provision, taken together with Article 13 of the Convention, that the Greek investigating and prosecuting authorities had failed to carry out an effective and impartial official investigation into the incident which could have led to the identification and punishment of the police officers responsible. The applicant therefore claimed that she had been denied an effective domestic remedy for her sufferings.", "Article 3 of the Convention provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13 of the Convention reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "32. The Government requested the Court to declare the case inadmissible as the applicant had failed to exhaust domestic remedies. In particular, they submitted that the fact that the Athens public prosecutor had closed the file with the indication “Perpetrator unknown” did not mean that the outcome of the case was definitively decided. According to domestic law, when the perpetrator of an alleged offence was not identified, the preliminary inquiry remained pending until new evidence was brought before the authorities. Thus, when the applicant was informed that the case had been closed, she should have appeared before the public prosecutor in order to testify and request the reopening of the case. By failing to do so, she had not assisted the authorities in their investigations and had not exhausted an effective remedy.", "33. The applicant disagreed with the Government's objection. She argued that she had sought a criminal prosecution by lodging a complaint, but that avenue had proved ineffective. She submitted that the investigation had not been effective, and in particular that the investigating authorities had failed to take timely steps to collect evidence and identify the perpetrators. She further noted that the prosecutor had closed the file two years and five months after the incident. In the light of the ineffectiveness of the criminal investigation there had been no point in the applicant's waiting any longer before lodging an application before the Court, as in fact any delay would have entailed a serious risk of having her application before the Court rejected on the grounds that it failed to comply with the time-limit of six months.", "34. The Court finds that the question of exhaustion of domestic remedies is closely linked to the merits of the applicant's complaint under Articles 3 and 13 of the Convention. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits of the complaint.", "35. The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The submissions of the parties", "36. The applicant submitted that her miscarriage had been the result of the unnecessary and disproportionate use of force by the police officers involved in the police operation of 28 January 2002. She also complained of the failure of the investigating and prosecuting authorities to carry out a prompt, comprehensive and effective official investigation capable of leading to the identification and punishment of the police officer responsible.", "37. The Government pointed out that since the miscarriage suffered by the applicant had not occurred while she was in police custody, the police authorities could not be held responsible for it. According to the Government, the presence of a judicial officer during the police operation guaranteed that no incident of police brutality could have occurred. Furthermore, the Government argued that the applicant had failed to produce a medical report stating that there were signs of physical violence on her body that could have provoked the miscarriage, such as bruises. The Government also referred to the lack of a medical examination by a forensic doctor and the applicant's failure to assist the investigating authorities. As regards the effectiveness of the investigation, the Government emphasised that the applicant had not appeared to testify before the competent judicial authority and that she was solely responsible for the fact that the Athens public prosecutor had closed the file.", "2. The Court's assessment", "a. Concerning the alleged ill-treatment", "i. General principles", "38. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999 ‑ V, and the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79).", "39. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).", "ii. Application of those principles to the present case", "40. The Court reiterates that it is not disputed that the applicant was present in the Roma settlement during the police operation and that she was admitted to hospital the following day with bleeding from her uterus. However, the circumstances under which the bleeding occurred are not entirely clear and the Court notes that there are some elements in this case which cast doubt on whether the applicant suffered treatment prohibited by Article 3.", "41. Firstly, the medical report produced by the applicant only states that she was bleeding and that she suffered a miscarriage, without mentioning the existence of bruises or other injuries and without reference to reasons that may have caused the bleeding. Furthermore, the Court notes that the applicant has not produced any other cogent evidence in support of her allegations of ill-treatment, such as objective eye-witness testimonies.", "42. In conclusion, since the evidence before it does not enable the Court to find beyond all reasonable doubt that the miscarriage suffered by the applicant was the result of the alleged ill-treatment inflicted by police officers, the Court considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 on account of the alleged torture.", "b. Concerning the alleged inadequacy of the investigation", "i. General principles", "43. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity ( see Assenov and Others v. Bulgaria, cited above, p. 3290, § 102, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).", "44. The investigation must be effective as well in the sense that it is capable of leading to a determination of whether the force used by the police was or was not justified in the circumstances ( see Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, § 87, and Corsacov v. Moldova, no. 18944/02, § 69, 4 April 2006 ).", "45. The investigation into arguable allegations of ill-treatment must also be thorough. This means that the authorities must make serious attempts to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, p. 3290, §§ 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, §§ 104 et seq., and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000 ).", "46. The procedural limb of Article 3 is invoked, in particular, where the Court is unable to reach any conclusions as to whether there has been treatment prohibited by Article 3 of the Convention, deriving, at least in part, from the failure of the authorities to react effectively to such complaints at the relevant time (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, § 178, 24 February 2005 ).", "ii. Application of those principles to the present case", "47. The Court considers at the outset that the medical evidence and the applicant's complaints, which were both submitted to the competent domestic authorities, created at least a reasonable suspicion that her miscarriage might have been caused by excessive use of force. As such, her complaints constituted an arguable claim in respect of which the Greek authorities were under an obligation to conduct an effective investigation.", "48. As regards the present case, the Court observes that two separate sets of proceedings were conducted: criminal proceedings against the unknown perpetrators on the applicant's initiative and an administrative informal investigation following the publicity given to the incident. However, the Court is not persuaded that those proceedings were sufficiently thorough and effective to meet the above requirements of Article 3.", "49. In particular, concerning the criminal proceedings, the Court notes some discrepancies capable of undermining their reliability and effectiveness. Firstly, the Court notes that contrary to its established case-law, the preliminary inquiry launched into the applicant's allegations was conducted by police officers serving in the same police station as the ones who had participated in the police operation in question, even though the applicant had requested that they be excluded (see, mutatis mutandis, Oğur v. Turkey [GC], no 21594/93, §§ 91-92, ECHR 1999 - III).", "50. Secondly, the Court observes omissions as to the assessment of evidence by the investigating authority. In particular, the only witnesses examined were two members of the Greek Monitor Helsinki and two police officers. Moreover, the authorities omitted to take into account the medical report produced by the applicant and they did not order a forensic examination with a view to establishing the injury sustained by the applicant, despite the latter's request. The Government relied on the lack of such a medical examination to claim that the applicant's allegations were unsubstantiated; however, in the Court's view, it is the investigating authorities'obligation to take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical certificates apt to provide a full and accurate record of the injuries and an objective analysis of the medical findings, in particular as regards the cause of the injuries ( see Batı and Others v. Turkey, nos. 33097/96 and 57834/0 0, § 134, ECHR 2004 ‑ IV ). Any deficiency in the investigation which undermines its ability to establish the cause of injury or the person responsible will risk falling foul of this standard and could not in any event be imputable to the applicant.", "51. Moreover, the Court is further struck by the fact that the case was closed because the authorities could not locate the applicant even though her lawyers'contact details had been previously communicated to them. The Court cannot agree with the Government that the applicant was the only person responsible for the preliminary inquiry's failing to identify the perpetrator because she had not assisted the investigating authorities. Having regard to its case-law, the Court cannot accept the submission that the progress and the effectiveness of proceedings concerning allegations of ill-treatment could depend entirely on the victim's conduct.", "52. Finally, the Court notes that the criminal proceedings as a whole were very slow, with long periods of inactivity. In particular, it observes that on 28 November 2002, that is to say, ten months after the complaint was lodged, the investigation file containing the testimony of four witnesses was forwarded to the Athens public prosecutor. It took the prosecutor almost a year to request the competent judicial authority to summon the applicant to testify. However, it was not until four months later that the court bailiff visited the settlement in order to summon the applicant to testify. Finally, on 3 July 2004, two years and five months after the complaint was lodged, the Athens public prosecutor closed the file without carrying out any further inquiries. In view of this substantial delay in the conduct of the preliminary inquiry, the Court finds that the Greek authorities cannot be considered to have acted with sufficient promptness or with reasonable diligence, with the result that the perpetrator of alleged acts of violence remained unidentified.", "53. As far as the administrative proceedings are concerned, the Court observes that despite the seriousness of the applicant's allegations, the authorities did not consider it necessary to conduct a sworn administrative inquiry (see the report issued by the Greek Ombudsman in Relevant domestic Law and practice ). On the contrary, they conducted an informal investigation that ended in less than one day and was carried out by the Deputy Director of Police, who had been actively involved in the police operation in question. It is apparent from the relevant report that the agent based his conclusions on the testimonies given by five police officers involved in the incident. Neither the applicant nor any of the other alleged victims of police brutality were examined.", "54. In the light of the above-mentioned shortcomings in the administrative and judicial investigations, the Court concludes that they were not effective. The Court rejects, therefore, the Government's objection based on exhaustion of domestic remedies (see paragraphs 32 - 34 above), and holds that there has been a violation of Article 3 of the Convention under its procedural limb, in that both investigations into the alleged ill-treatment were ineffective.", "55. Lastly, the Court considers that, in view of the grounds on which it has found a violation of Article 3 in relation to its procedural aspect, there is no need to examine separately the complaint under Article 13 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION", "56. The applicant further complained that the ill-treatment she had suffered and the subsequent lack of an effective investigation into the incident were in part due to her Roma ethnic origin. She alleged a violation of Article 14 of the Convention, which provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "57. The Government contested that argument.", "A. Admissibility", "58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The submissions of the parties", "59. The applicant argued that the police officers'and the judicial authorities'perception of her as a Roma (Gypsy) had been a decisive factor in their attitude and acts.", "60. The Government pointed out that the Court had always required “proof beyond reasonable doubt” and that in the present case there was no evidence of any racially motivated act on the part of the authorities.", "2. The Court's assessment", "61. Discrimination is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 ‑ VII).", "62. The Court recalls that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 ‑ VII.).", "63. Turning to the present case, the Court's task is to establish whether in carrying out the investigation into the applicant's allegation of ill-treatment by the police, the domestic authorities discriminated against the applicant and if so, whether the discrimination was based on her ethnic origin.", "64. In this respect, the Court considers unacceptable that not only was there no attempt on the part of the investigating authorities to verify whether the behaviour of the policemen involved in the incident displayed anti-Roma sentiment, but the Deputy Director of Police made tendentious general remarks in relation to the applicant's Roma origin throughout the administrative investigation.", "65. In particular, the Court is struck by the report on the findings of the informal administrative investigation. It considers that the general assertion that complaints raised by Roma were exaggerated and formed part of their “common tactic to resort to the extreme slandering of police officers with the obvious purpose of weakening any form of police control” discloses a general discriminatory attitude on the part of the authorities which reinforced the applicant's belief that the lack of an effective investigation into the incident was due to her Roma ethnic origin. No justification was advanced by the Government with regard to these remarks.", "66. Having regard to all the elements above, the Court finds that the failure of the authorities to investigate possible racial motives for the applicant's ill-treatment, combined with their attitude during the investigation, constitutes discrimination with regard to the applicant's rights which is contrary to Article 14 taken in conjunction with Article 3 in its procedural limb.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "67. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "68. The applicant claimed EUR 25,000 in respect of the physical, psychological and emotional pain she had suffered.", "69. The Government argued that the amount claimed was excessive and disproportionate on the basis of the criteria established by the Court's case-law.", "70. The Court considers that the applicant undoubtedly suffered non-pecuniary damage which cannot be compensated solely by the findings of violations. Having regard to the specific circumstances of the case and ruling on an equitable basis, the Court awards EUR 2 0 ,000 under this head, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "71. The applicant also claimed EUR 1, 000 for the costs and expenses incurred before the Court, in respect of which a bill of costs was produced.", "72. The Government did not agree with the amount claimed, stating, inter alia, that it was excessive.", "73. According to the Court's settled case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were also reasonable as to quantum (see, for example, Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003-VIII).", "74. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs for the proceedings before the Court.", "C. Default interest", "75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1987 and lives in Gulia, a village with an 80% Roma population in the commune of Dolhasca, Suceava county.", "A. The ill-treatment inflicted on the applicant", "6. On 3 April 2001 the deputy mayor, four police officers from the Dolhasca Police Force and their chief, six public guards from Dolhasca and a driver, left in three cars to enforce a by-law against owners whose cattle were grazing on public pasture. Three of the public guards were wearing black uniforms with hoods and carrying truncheons. At around 8 pm, on their way back to Dolhasca Police Station, they entered C.C. ’ s bar in Gulia to check the owner ’ s documents. A conflict arose between the authorities and the 20 ‑ 30 Roma gathered in front of the bar. The parties ’ submissions differ as to the sequence of events.", "1. Applicant ’ s version of the facts", "7. F.L., a villager of Roma origin, was just leaving the bar as the police entered. Sergeant D.T. asked him whether he was a “Gypsy ( ţigan ) or Romanian”. When F.L. answered that he was a Gypsy, the deputy mayor asked the police officers and the public guards to teach him and the other Roma “ a lesson ”. The police and public guards started beating F.L. and other Roma who happened to be in the vicinity of the bar.", "8. The applicant, who had just bought something from a nearby shop, ran away with other children, but was tripped up by D.T. who started beating, kicking and hitting him on the back of his head and pushed him into a ditch. The applicant told D.T. that he had just undergone head surgery and that the beating could endanger his life. D.T. continued beating him until the applicant lost consciousness. Several persons, including the applicant ’ s schoolmates witnessed the incident. The deputy mayor and police officers were heard shouting racist remarks.", "9. The officials left the premises, leaving the applicant unconscious on the ground. A.S., V.D. and I.C., witnesses to the incident, carried him to his parents ’ home.", "2. Government ’ s version of the facts", "10. The deputy mayor entered C.C. ’ s bar with a police officer and complained about the insalubrious conditions in the premises and that C.C. allowed people to drink excessively.", "11. C.C. asked his customers to leave the bar. During the discussions with the authorities, C.C. and his wife urged their customers, who were gathered in front of the bar, to antagonise the officials. The customers became aggressive. The police officers surrounded the deputy mayor in order to protect him. The officials returned quickly to their cars and left the premises immediately. The deputy mayor ’ s car, which was the last to leave, was attacked by the locals with bats.", "B. Applicant ’ s medical examination", "12. On the evening of 3 April 2001 the applicant was taken by his parents to Sfânta Maria Hospital in Iaşi.", "13. On 6 April 2001 he was examined by a doctor from the Iaşi Forensic Institute. The certificate issued recorded the following:", "“ - On the exterior upper side of the left elbow : a discontinuous excoriation of 1,2x 1 cm with red haematic crust.", "- The space between the scapula and the vertebras : purple transversal linear ecchymoses, ranging from 9x3,2 cm to 5,52x 2,8 cm, two on the right side, one on the left side.", "- On the exterior side of the right arm: one red transversal linear ecchymosis of 5,5x 2 cm.", "- The subject states that he is experiencing pain in the right parietal epicranius but there are no visible exterior post ‑ traumatic lesions ...", "Conclusion", "Stoica Constantin presents with ecchymoses, thoracic concussion and excoriation, inflicted by a linear blunt instrument, which could date from 3 April 2001.", "He needs three to five days of medical care to recover.”", "14. With regard to his medical history, the applicant was diagnosed with brain disease and was operated upon on 20 December 1999. On 12 April 2001, the Commission for the Protection of Handicapped Persons established that he had a first- degree disability which required permanent supervision and a personal assistant.", "C. Investigations into the incidents", "15. On 4 April 2001, the 3 April incidents between the Roma and the authorities were discussed in the Mayor ’ s office with representatives of the Prefect ’ s Office, the Government and the Roma Party. Several persons gave evidence, including the applicant ’ s mother and eyewitnesses. On 5 April 2001 a report was sent to the Suceava Police Inspectorate (“the Suceava Police”).", "16. On 9 April 2001 the Romani CRISS, acting on behalf of the applicant, asked the commander of the Suceava Police to open criminal investigations into the incidents. The same day, they expressed their concern to the Prefect about the racist motivation behind the incidents.", "17. On 18 April 20 0 1 the Prefect informed the Romani CRISS that the Mayor ’ s investigation of 4 April, in which his representative had also taken part, had excluded the possibility of any racist motivation being behind these incidents.", "18. On 18 April 2001 the applicant ’ s father lodged, on behalf of his son, a criminal complaint with the Bacău Military Prosecutor, against D.T., the other police officers and the deputy mayor.", "19. On 5 June 2001 the Ombudsman, informed of the events by Romani CRISS, requested the opening of investigations by the Suceava Police, the Bacău Military Prosecutor, the Suceava Child Protection Agency and Suceava County Council and asked for compensation and aid for the applicant ’ s family.", "20. On 20 August 2001 the Suceava Child Protection Agency informed the Ombudsman that conciliation proceedings had been started and that 2,000,000 old Romanian lei (ROL) had been awarded to the applicant ’ s family in aid for assistance in the psychological and medical recovery of the applicant.", "21. On 29 May 2001 the Romani CRISS filed a criminal complaint with the Bacău Military Prosecutor against D.T. and the other persons allegedly responsible for the incidents, accusing them of abusive behaviour.", "1. Investigations by the Suceava Police", "22. The Suceava Police, hierarchically superior to Dolhasca Police Force, started the investigations into the case.", "23. On 7 May 2001 evidence was heard from villagers D.D. and F.L., eyewitnesses, F.S., the applicant ’ s mother and A.S., the father of another alleged victim.", "They stated that either police officers or public guards had tripped up and then beaten the applicant.", "24. Two police officers and the deputy mayor gave evidence on 8 May 2001. They stated that C.C. criticised the deputy mayor, alleging that he had won Roma votes by making false promises which he had reneged upon when elected. These words had roused the Roma gathered in front of the bar to protest against the officials, to insult them in Romani and to attack their cars as they were leaving. They stated that no villager had been beaten by any of the police officers and public guards that night and that all the officials had left the premises in a hurry by car.", "25. Villager L.D. testified the same day that he had seen D.T. beating the applicant on his back and chest and that the officer had stopped when he had seen the witness approaching.", "26. On 16 May 2001, the police heard evidence from the applicant. He reiterated that he had been tripped up and had fallen and that D.T. had punched him in the stomach, kicked him in the back and beaten him with a truncheon.", "27. Giving evidence on the same day D.T. denied that he had beaten the applicant, declared that he had not even been carrying his truncheon that day and gave the same version of the facts as the other police and public guards.", "28. Two police officers and four passers-by gave evidence that day, all stating that no violence had been used by the authorities.", "29. On 1 June 2001 the Suceava Police sent its final report to the Bacău Military Prosecutor. It proposed not to press charges against the accused persons.", "30. On 11 June 2001 the Suceava Police informed the Ombudsman and the Romani CRISS that the proceedings concerning the accusations of abusive behaviour against sergeant D.T. were pending, and that the final decision would be taken by the Military Prosecutor ’ s Office.", "On 11 July 200 1 the Suceava Police informed the Ombudsman that the case had been sent to the Bacău Military Prosecutor with recommendation not to press charges.", "2. Investigations by the Military Prosecutor", "31. On 20, 21 and 31 August, 3 and 13 September 2001 the prosecutor heard evidence from several persons: C.C., the owner of the pub, and E.C., his wife, the applicant, his father, D.S., and mother, D.F., four villagers who had witnessed the conflict, the deputy mayor (twice), the eleven police officers and guards, including D.T. and four passers-by. All of them maintained the version of events they had given to the Suceava Police. The Roma involved contended, mainly, that they had seen the police officers and public guards using violence against some of the Roma children present while the officials denied the allegations. The passers -by supported the authorities ’ version. The school principal and the head of the Roma Party stated that the Roma refused to send their children to school after the incidents, for fear of reprisal.", "32. C.C. stated the following:", "“20 to 30 Roma armed with bats, axes etc. gathered around the three cars. I yelled at the deputy mayor: ‘ We voted for you in the elections and now you come to kill our people! ’ As the situation became tenser ... I yelled at the Roma present not to come close to the three cars and then I sought to protect the deputy mayor and the other officials until they got into their cars and left for Dolhasca.", "The cars were not hit, but Roma were insulting the occupants of the cars until they left. I did not see any Roma getting beaten that evening by the police or public guards, but I heard later that D.S. ’ s son ( the applicant ) had been beaten by the police officers ...", "While I was present, none of the police officers or public guards hit, insulted or threatened the Roma. It is not true that the conflict that evening was of a racial nature ... ”", "33. His wife, E .C., confirmed his statements.", "34. The applicant ’ s father stated in particular that:", "“Scared of what was happening in front of the pub ... my son came out [ of the store] and started running home, but a public guard tripped him up and then Sergeant D.T. savagely beat him ...", "My son ... ran home on the evening of 3 April 2001, out of fear, although he knew that he was not allowed to run [due to his medical condition].”", "35. The applicant declared that:", "“Seeing what was happening, I got scared and started running home. After 4-5 steps, the police officer D.T. tripped me up, so I fell to the ground.", "After I fell I saw that officer D.T. wanted to hit my head with a truncheon, so I told him ‘ don ’ t hit my head, I have had head surgery ’. He did not listen and hit me several times with the truncheon and with his fists and kicked me all over my body, on my back and chest.”", "36. On 23 August 2001 the Suceava Police informed the military prosecutor that the Dolhasca police officers had not filed a report in order to have criminal investigations started against the Roma for insulting behaviour, for the following reason :", "“ [T] he way in which some of the Roma acted is pure Gypsy behaviour ( pur ţigănesc ) and does not constitute the crime of insulting behaviour.”", "37. On 2 October 2001 the Bacău Military Prosecutor decided not to prosecute, as the evidence did not confirm the alleged violence against the applicant. The relevant parts of his decision state as follows:", "“ At a certain point, bothered by the [ deputy mayor ’ s] criticism, C.C. became verbally aggressive, complaining to the deputy mayor about certain aspects of his professional activity. C.C. came out of his bar and, speaking in Romani, incited the twenty-thirty Roma there present against the two officials [the deputy mayor and one of the police officers who accompanied him].", "Considering that the situation was likely to degenerate, as the Roma were becoming extremely aggressive and violent, and as they were armed with blunt objects, the police officers surrounded the deputy mayor to protect him, then they got into their cars and left in a hurry towards the centre of Dolhasca.", "The Roma nationals ( cetăţeni) attacked the last vehicle, where the deputy mayor was seated, with blunt objects, but no damage was caused since the vehicle was already leaving the area.", "C. C. declared that he had not seen any Roma being beaten by the police that evening.", "He also denied that the incidents amounted to racial conflict. His statement corroborates those of the police officers and public guards [who testified in the case].", "Eyewitness statements in support of the applicant shall be disregarded as unreliable in so far as the evidence in the file shows that these persons arrived at the scene of the incidents after the three cars had left.", "Moreover these witnesses ’ statements are contradictory and do not corroborate the statements made by [the applicant and his father ] who alleged that [the applicant] had been punched, kicked and beaten with the truncheon all over his body, including on his head ...", "This conclusion tallies with the medical certificate in the file ...", "The [applicant ’ s] witnesses ’ statements show that when the incident started [the applicant] ran home, against the medical recommendations that had been made to him ... ”", "It also considered that C.C. ’ s statements, supported by those given by the police officers and public guards, confirmed that the conflict had not been racially motivated.", "38. On 3 October the military prosecutor informed Romani CRISS of its decision, stating that “the evidence gathered showed that the applicant was not injured, insulted or threatened by the police officers ”.", "39. The applicant ’ s mother and Romani CRISS contested the conclusion reached in the investigations.", "40. On 14 May 2002 the prosecutor ’ s decision was confirmed by the Military Prosecutor ’ s Office attached to the Supreme Court of Justice, on the ground that the case indicated that no violence had been inflicted on persons of Roma origin.", "3. Other complaints", "41. On 19 February 2002 the applicant ’ s father asked Romani CRISS to file a complaint with the competent authorities about some incidents that had occurred during the investigations. He alleged that, on 3 September 2001 the military prosecutor who had dealt with the case had tried to intimidate witnesses and physically assaulted the Romani CRISS representative. Consequently, some witnesses had refused to testify. Moreover, he claimed that members of the police were trying to persuade them to give up their complaints by harassing the family. On 7 December 2001 a police patrol had come to the applicant ’ s house at around midnight but had left when told that the applicant ’ s father was not home. In February 2002 D.T. had allegedly threatened and punched the applicant ’ s grandfather.", "42. On 19 February 2002 Romani CRISS forwarded the complaint to the Suceava Police, which dismissed it as unsubstantiated on 20 March 2002." ]

[ "II. RELEVANT DOMESTIC LAW", "43. The relevant provisions of the Code of Criminal Procedure and of the police and military prosecutor Ruler are set out in Dumitru Popescu v. Romania ( (no. 1), no. 49234/99, § § 43-46, 26 April 2007 ) and Barbu Anghelescu v. Romania ( no. 46430/99, § 40, 5 October 2004 ).", "44. The relevant provisions of the Criminal and Civil Codes concerning the means of obtaining compensation for alleged ill-treatment are set out in Kalanyos and Others v. Romania ((dec.), no. 57884/00, 19 May 2005 ).", "45. In the same decision, as well as in paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above there is a description of the development of the law concerning complaints against decisions of the prosecutor (Article 278 of the Code of Criminal Procedure and Article 278 1 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004 ).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "46. The applicant complained of the ill-treatment allegedly inflicted on him on 3 April 2001 by the police and considered that the ensuing criminal investigation had not been effective. He relied on Article 3 of the Convention, which reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility", "47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "48. The Government did not contest the applicant ’ s injuries but contended that, based on the conclusion of the domestic investigations, the alleged violence had not been committed by the officials, in so far as neither the identity of the perpetrators nor the exact date on which the violence had been committed could be established with certainty.", "49. Citing Klaas v. Germany ( judgment of 22 September 1993, Series A no. 269, p. 17, § 29 in fine ); and Ribitsch v. Austria (judgment of 4 December 1995, Series A no. 336, p. 24, § 32), the Government argued that it was not normally within the province of the Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it was for those courts to assess the evidence before them.", "50. In the Government ’ s opinion the prosecutor had been right to disregard the statements of eyewitnesses in support of the applicant as they were evidently biased and less credible. They also pointed out the contradictions between the witnesses ’ statements and those of the applicant.", "51. Furthermore, the Government considered that the investigation carried out by the authorities had been adequate and effective. They pointed out that the prosecutors had heard testimony from the parties and witnesses, that the applicant had been examined by a doctor and that the facts had been carefully weighed. The Bacau Military Prosecutor ’ s decision had been re ‑ examined and confirmed by the Military Prosecutor attached to the Supreme Court of Justice.", "They based their argument on the case Velikova v. Bulgaria ( no. 41488/98, § 80, ECHR 2000 ‑ VI ).", "52. Moreover, the Government noted that there had been no hierarchical or institutional link between the accused police officers, all from the Dolhasca Police, and the investigators, all from the Suceava Police, and contended that the mere fact that both the prosecutor and the accused persons were part of the military forces could not in itself prove the lack of impartiality and independence of the investigators (see Bursuc v. Romania, no. 42066/98, §§ 1 03, 12 October 2004 ).", "53. The applicant considered that the investigation files contained sufficient elements to conclude that the violence had been inflicted by the police. In his view, the decision to set aside the eyewitnesses ’ statements was unfounded. In any case, the authorities had failed to provide a credible alternative explanation as to the origin of his injuries. In his opinion the following elements should be taken into account as aggravating factors in the assessment of the seriousness of the ill-treatment he had been subjected to: he was 14 years old at the time; he was severely ill; in his particular condition the attack had made him seriously fear for his life; and he was of Roma origin ( in the context of the organised harassment of Roma by the Romanian authorities ). He also pointed out that the authorities had acted late at night and that the use of force had been neither necessary nor proportionate in the circumstances.", "54. In so far as the investigations carried out were concerned, the applicant submitted that they had failed to comply with the standards set out by the Court in the case of Assenov and Others, and that they had taken too long (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII).", "55. In his view, the Suceava Police could not have been impartial in their investigation as they were the hierarchical superior of the Dolhasca Police. Furthermore, he doubted the impartiality of the military prosecutor.", "56. The applicant reiterated that in the decision of 2 October 2001 the Bacau Military Prosecutor had merely summarised the police officers ’ statements, which were sometimes identical to the last word, and had disregarded, without plausible reason, the eyewitnesses ’ statements. He also argued that only a few of the Roma present had been asked to testify and that some of them had been intimidated by the police and prevented from giving testimony.", "57. Lastly, the applicant noted that although the police officers had declared that they had been attacked by Roma armed with bats, no official investigation into the allegations had been opened. He concluded that these statements had merely been an attempt to justify the police actions.", "2. The Court ’ s assessment", "58. The Court notes from the outset that it is common ground that the applicant suffered injuries on or around the date of the incidents. However, the parties disagreed on whether or not the injuries were caused by police officers.", "59. The Court reiterates that Article 3 enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 of the Convention even in the event of a public emergency threatening the life of the nation (see Assenov and Others, cited above, p. 3288, § 93 ).", "60. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92).", "61. In considering whether a particular form of treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821, § 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers, cited above, § 74). The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.", "62. The Court considers that the degree of bruising found by the doctor who examined the applicant ( see paragraph 13 above ) indicates that the latter ’ s injuries, whether caused by the police or by someone else, were sufficiently serious to amount to ill-treatment within the scope of Article 3 (see, for example, A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, § 21, and Ribitsch, cited above, pp. 9 and 26, §§ 13 and 39).", "It remains to be considered whether the State should be held responsible under Article 3 in respect of these injuries.", "63. The Court reiterates its jurisprudence confirming the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.", "64. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny (see Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007 ) even if certain domestic proceedings and investigations have already taken place.", "65. In the present case the Court notes that the applicant was admitted to the hospital soon after the events and that the medical report indicated the injuries sustained. The applicant filed a criminal complaint against police officers who he accused of having beaten him. His declarations are coherent and supported by the medical report and some witness testimonies. It is, nonetheless, true that the witnesses gave conflicting testimonies; all the officials and some of the passers-by denied that any violence had occurred while all the villagers stated that it had. Lastly, the criminal investigation conducted in the case concluded that the officers were not responsible for the injuries.", "66. There had been no official admission of any act of violence against the applicant.", "67. However, the Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others, cited above, § 102).", "68. The Court notes that a criminal investigation was carried out in the case. It remains to be assessed whether it was effective, as required by Article 3.", "69. From the outset, the Court notes that the investigations lasted for one year, and considers that this length is not in itself problematic (see paragraph 54 above ).", "70. As to the effectiveness of the investigations, the Court notes the following.", "71. Although twenty to thirty villagers were present during the incidents, only three testified before the Suceava Police and five testified before the military prosecutor. All police officers and public guards present gave evidence.", "72. There is no explanation as to why the other villagers did not testify during the investigation. They were either not called to testify, or, as the applicant claims, they were intimidated by the police. Either way, the fact that they did not give testimony casts doubt as to how thoroughly the police investigated the case.", "73. The Court is also concerned about the way the villagers ’ statements were discarded by the military prosecutor.", "Firstly, according to the Government ( see paragraph 5 0 above ) the prosecutor was right to discard those statements as they were evidently biased and less credible. However, the Court cannot but notice that the prosecutor did not explain why the villagers ’ statements would be less credible than those of the police officers, as all participants could be considered equally biased due to their opposing positions in the proceedings (alleged victims against alleged perpetrators).", "74. Moreover, the prosecutor ’ s conclusion that those villagers had not been present during the incident is contradicted by the evidence in the case, including these persons ’ statements before the same prosecutor.", "75. The Court also considers that the alleged contradictions between the applicant ’ s statements and those of the witnesses were not adequately examined by the prosecutor, who only noted, briefly, the differences concerning the applicant being allegedly beaten over the head. He failed to address the common points of the statements, including of those that the prosecutor relied on (see paragraphs 32 and 37 above), from which it could have been inferred that the applicant had in fact sustained injuries all over his body.", "76. Lastly, the Court considers as does the applicant that the fact that the police officers did not report the Roma ’ s alleged insulting behaviour sheds doubt on their version of the facts.", "The police officers ’ explanation for their reference to the “ pure Gypsy” behaviour will be examined below ( see paragraphs 111-132 below).", "77. Another point of concern is the fact that the investigators limited themselves to exonerating the police officers and thus failed to identify those responsible for the applicant ’ s injuries. This is particularly serious bearing in mind that the applicant was a minor at the date of the events and also severely disabled.", "78. It is true that if the violence had not been perpetrated by police officers but by a private individual, the criminal prosecution of the person responsible could only have been started at the request of the victim ( plângere prealabilă, Article 180 of the Romanian Criminal Code). However, no such complaint could be lodged if the police did not identify the alleged perpetrators of the crimes. Therefore, in the case under review, the applicant could not immediately lodge a criminal complaint against those who had allegedly beaten him.", "79. Lastly, the Court recalls that it has already established that the applicable law at the date of the facts made the hierarchical and institutional independence of the military prosecutor doubtful (see Barbu Anghelescu, §§ 40-30 and 70; Bursuc, §§ 104 and 107; and Dumitru Popescu (no. 1), §§ 74-78, judgments cited above ).", "80. In the light of the above and on the basis of all the material placed before it, the Court considers that the Government have not satisfactorily established that the applicant ’ s injuries were caused otherwise than by the treatment inflicted on him by the police officers, and concludes that these injuries were the result of inhuman and degrading treatment (see also Cobzaru, cited above, § 74). Accordingly, there has been a violation of Article 3 of the Convention.", "81. Having regard to the above-mentioned deficiencies identified in the investigation, the Court also concludes that the State authorities failed to conduct a proper investigation into the applicant ’ s allegations of ill ‑ treatment (see also Cobzaru, cited above, § 75). Thus, there has been a violation of Article 3 of the Convention also under its procedural head.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "82. The applicant further complained that, because of the decision not to prosecute of 2 October 2001, he could not file a civil action for compensation against the police officer who had beaten him. He relied on Article 6 § 1 of the Convention, which reads as follows :", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal...”", "A. The parties ’ submissions", "83. The Government submitted that the investigations conducted by the authorities in the case had been effective and that the police officers accused of ill-treatment had been exonerated based on all the evidence adduced in the file.", "84. They contended that after the decision of the prosecutor of 2 October 2001, the applicant could have lodged an action with the civil courts, based on Articles 998-999 of the Civil Code. Such an action would have had prospects of success, since the civil courts were not bound by the prosecutor ’ s decision. It would have allowed the applicant to establish the police officers ’ civil responsibility.", "85. Relying on the case Van Oosterwijck v. Belgium ( judgment of 6 November 1980, Series A no. 40, pp. 18-19, § 37), they pointed out that the applicant ’ s negative opinion of the prospects of success alone could not of itself justify or excuse failure to exercise a remedy.", "86. The applicant contended that the findings of a criminal investigation were binding on the civil courts in so far as they concerned the existence of the facts alleged, the person responsible and his or her liability, which rendered such remedy ineffective in his particular case.", "B. The Court ’ s assessment", "87. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-IV).", "88. The Court makes reference to its findings under Article 13 below, according to which the appeal before the courts against the prosecutor ’ s decision is an effective remedy in this case (see paragraphs 99-110 below).", "89. In these circumstances, the Court considers that the applicant should have challenged the prosecutor ’ s decision of 2 October 2001 and that it is not for this Court to speculate either on the outcome of such appeal or on its influence on the civil courts called to settle the compensation (see, mutatis mutandis, Moldovan and Others (no. 2), nos. 41138/98 and 64320/01, § 120, ECHR 2005 ‑ VII (extracts); Menesheva v. Russia, no. 59261/00, § 76, 9 March 2006; and Corsacov v. Moldova, no. 18944/02, § 82, 4 April 2006).", "90. It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "91. The applicant also complained that the authorities ’ failure to carry out an effective investigation capable of providing redress for the ill ‑ treatment suffered by the applicant constituted a violation of Article 13 of the Convention. Furthermore, he complained that he could not effectively challenge, before a court, the decision not to prosecute taken by the military prosecutor in favour of the police officer who had allegedly injured him.", "Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "92. The Court notes that this complaint has two distinct branches : the ineffectiveness of the criminal investigation and the lack of appeal against the military prosecutor ’ s decision. It will deal with each one separately.", "A. Effectiveness of the investigation", "1. Admissibility", "93. The Court notes that these aspects of the complaint are linked to the complaint examined under the procedural head of Article 3 and must therefore likewise be declared admissible.", "2. Merits", "94. As to the merits, the Court recalls that it has concluded that there was a procedural violation of Article 3 in respect of the same aspects (see paragraph 81 above ). Therefore, it does not deem it necessary in the present case to make a separate finding under Article 13 of the Convention for this branch of the complaint (see, mutatis mutandis, Šečić v. Croatia no. 40116/02, § 61, ECHR 2007 ‑ ... ).", "B. Appeal against the prosecutor ’ s decision", "95. The Court considers that a separate issue arises under Article 13 in so far as the applicant complained that he could not lodge a complaint against the prosecutor ’ s decision not to institute criminal proceedings, in particular bearing in mind the fact that the applicant alleged that the prosecutor ’ s decision prevented him from seeking damages before the civil courts. This matter has not been examined under the procedural head of Article 3, above.", "The Court will therefore examine it further.", "1. The parties ’ submissions", "96. The Government pleaded non-exhaustion of domestic remedies as the applicant had not availed himself of the possibility of challenging, before a court, the military prosecutor ’ s decision not to prosecute. They noted that this new appeal, provided by Article 278 1 of the Code of Criminal Procedure, had been introduced by Law no. 281 of 24 June 2003 and had been available to the applicant from 1 July 2003.", "97. Citing Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001 ‑ IX) and Nogolica v. Croatia ( (dec.), no. 77784/01, ECHR 2002 ‑ VIII ), they considered that the applicant had to exhaust this remedy, although it had been available only after the present application had been lodged with the Court.", "98. The applicant submitted that there were no special circumstances in his case that would allow for an exception to the rule that the remedy must exist prior to the lodging of the application. He further claimed that the Government had not proved the effectiveness of this remedy.", "2. The Court ’ s assessment", "a) Admissibility", "99. The Court considers that the Government ’ s argument raises issues as to the effectiveness, from the applicant ’ s perspective, of complaining against the prosecutor ’ s decision. It is thus closely linked to the merits of the complaint under examination. Therefore the Court joins the preliminary objection to the merits of the applicant ’ s complaint.", "100. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "b) Merits", "101. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability, at the national level, of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 of the Convention is thus to require the provision of a domestic remedy to deal with the substance of an “arguable claim” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 of the Convention varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, p. 2285, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106).", "102. In view of the Court ’ s findings with regard to Article 3 above, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52). Thus, it remains to be established whether the applicant had an effective remedy available in Romanian law so as to challenge the prosecutor ’ s decision not to indict the police officers.", "103. The Court recalls that in the present case the incidents between the applicant and the police took place on 3 April 2001, the criminal complaint was lodged on the 18 April 2001 and the Military Prosecutor decided not to prosecute on 2 October 2001, decision confirmed by the hierarchically superior Prosecutor ’ s Office on 15 May 2002. On 1 January 2004, Law no. 281/2003 became applicable.", "104. The Court reiterates that the rule on the exhaustion of domestic remedies is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity - that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 65, and the Aksoy, cited above, p. 2275, § 51).", "It is true that in order for the exhaustion rule to come into operation, the effective remedy must exist at the date when the application is lodged with the Court. However this rule is subject to exceptions which might be justified by the specific circumstances of each case (see Baumann v. France, no 33592/96, 22 May 2001, § 47, unreported, Brusco, cited above ). The Court has accepted that this was the case when at the national level a new law, specifically designed to provide direct redress to violations of fundamental procedural rights, was introduced with retroactive effect and put thus an end to a structural problem that existed in the national legal system before its adoption (see Içyer v. Turkey (dec.), no. 18888/02, §§ 83 ‑ 84, ECHR 2006 ‑ I; Charzyński v. Poland (dec.), no. 15212/03, §§ 40 ‑ 41, ECHR 2005 ‑ V; and mutatis mutandis Ismayilov v. Azerbaijan, no. 4439/04, § 38, 17 January 2008).", "105. Turning to the present case, the Court has already established that before the amendments to the Code of Criminal Procedure of 2003 (Law no. 281/2003), the interested parties had no effective possibility of challenging the prosecutor ’ s decision before a court (see Rupa v. Romania (dec.), no. 58478/00, 14 December 2004; and Kalanyos and Others, cited above).", "106. However, after the introduction of the above amendments persons in the applicant ’ s situation could avail themselves of the new remedy introduced by Law no. 281/2003 which set a one-year time-limit for interested parties to appeal against a prosecutor ’ s decision taken before the entry into force of this Law. The newly introduced provision describes in details the procedure to be followed before the courts and the applicable time ‑ limits. It gives the courts the power to control the investigation carried out by the prosecutor in the case, and to hear evidence.", "107. The Court notes that this new provision has removed the obstacles that were decisive when the Court found that the complaint mechanism available before the 2003 amendments did not comply with all the requirements of an effective remedy (see also, mutatis mutandis, Nogolica, cited above). Moreover the new appeal was specifically designed to provide direct redress for similar complaints to the one raised by the applicant.", "108. Furthermore this appeal became applicable less than three years from the date of the incidents. The Court considers that this period is not lengthy enough to seriously alter the recollection of facts by those involved and thus to reduce the effectiveness of the courts ’ examination of facts (see, mutatis mutandis, Dumitru Popescu (no. 1), cited above, § 56).", "109. In the light of these circumstances and recalling the subsidiary character of the Convention machinery, the Court considers that the applicant should have challenged before the courts the prosecutor ’ s decision in the case once the remedy provided by Law no. 281/2003 came into force.", "110. Accordingly, the Court considers that in the present case there has been no violation of Article 13 of the Convention in so far as it refers to the impossibility of lodging an appeal against the military prosecutor ’ s decision not to press charges.", "IV. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLES 3 AND 13 OF THE CONVENTION", "111. The applicant complained that the ill-treatment that he had suffered and the decision not to prosecute the police officer who had beaten him had been predominantly due to his Roma ethnicity, contrary to the principle of non ‑ discrimination set forth in Article 14 of the Convention taken together with Articles 3 and 13.", "Article 14 of the Convention reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties ’ submissions", "112. The Government considered that nothing in the file could prove discrimination against the applicant. They contended that the alleged flaws in the criminal investigations had not been caused by the applicant ’ s ethnicity.", "113. Lastly, they contended that the word “Gypsy” had a pejorative connotation only in certain contexts, and, even then mainly in the oral language.", "114. The applicant made reference to the broader situation of Roma in Romania, as reflected in various reports by NGOs, the Council of Europe and the European Commission (for a summary of these reports, see Cobzaru, cited above, §§ 44-52). He also contended that the word “ ţigan ” was offensive, in particular when used to differentiate the person from a person of Romanian ethnicity, as it had happened in this case (see paragraph 7 above).", "115. The applicant also contended that racist remarks in official police documents had gone unnoticed by the prosecutors (see paragraph 36 above) and considered that the Prefect was undully quick in ruling out a racist motive behind the incidents (see paragraph 17 above).", "B. The Court ’ s assessment", "1. Admissibility", "116. The Court notes that this complaint is linked to those examined under Articles 3 and 13 and must therefore likewise be declared admissible.", "2. Merits", "117. The Court ’ s case-law on Article 14 establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations ( Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII).", "118. Faced with the applicant ’ s complaint of a violation of Article 14, as formulated, the Court ’ s task is to establish whether or not racism was a causal factor in the impugned conduct of the authorities during the events and the ensuing investigation, so as to give rise to a breach of Article 14 of the Convention taken in conjunction with Article 3.", "119. The Court will start by looking into the alleged racial motives behind the conduct of the investigations. In this context, it reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention.", "Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State ’ s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, § 160, and Šečić, §§ 66-67, judgments cited above ).", "120. In the present case, the military prosecutor addressed, to a certain extent, the potential racist implications of the incidents. It remains to be seen if the authorities used best endeavours to assess the racist aspects of the case.", "121. The Court notes that the military prosecutor concluded that there had been no racial aspect to the incidents, based solely on C.C. ’ s and the police officers ’ estimation of the conflict. He disregarded the fact that the same witnesses had declared that C.C. had complained to the deputy mayor that he had come before elections to win Roma votes and had reneged on his promises when elected. The Court considers that this remark cannot be regarded as completely racially neutral.", "Moreover, it finds problematic the fact that only the villagers, mainly Roma, were considered to be biased in their statements during the criminal investigations, while the police officers ’ statements were integrated into the military prosecutor ’ s reasoning and conclusion (see paragraph 73 above ).", "122. The Court is dissatisfied that the military prosecutor did not address in any way the remarks from the Suceava Police report describing the villagers ’ alleged aggressive behaviour as “purely Gypsy”, although such remarks are clearly stereotypical.", "123. The Court is also concerned, as is the applicant, with the levity with which the Prefect concluded that the incidents of 3 April 2001 had had no racist motivation.", "124. Consequently, the Court considers that the authorities did not do everything in their power to investigate the possible racist motives behind the conflict.", "125. The Court will further look into the implication of this finding for the examination of the allegations of a “substantive” violation of Article 14.", "126. The Court reiterates that in assessing evidence it has adopted the standard of proof “beyond reasonable doubt” (see paragraph 63 above ); nonetheless, it has not excluded the possibility that in certain cases of alleged discrimination it may require the respondent Government to disprove an arguable allegation of discrimination and – if they fail to do so – find a violation of Article 14 of the Convention on that basis ( see Nachova and Others, cited above, § 157, and Bekos and Koutropoulos v. Greece, no. 15250/02, § 65, ECHR 2005 ‑ XIII (extracts) ).", "127. Lastly, the Court acknowledges that where it is alleged – as here – that a violent act was motivated by racial prejudice, shifting the burden of proof to the respondent Government might amount to requiring the latter to prove the absence of a particular subjective attitude on the part of the person concerned (see Nachova and Others, § 157, and Bekos and Koutropoulos, § 65, judgments cited above ).", "128. In the present case it is not disputed that the incidents of 3 April 2001 took place between Roma villagers and police forces. The applicant himself is of Roma origin. The police officers stopped in front of a pub owned by C.C., a Roma ethnic, and the dispute that arose, as related by the villagers or, to a certain extent, as reported by the police officers, were not racially neutral. The Court reiterates that the villagers claimed the police officers were asking F.L. whether he was “Gypsy or Romanian” before beating him, at the deputy mayor ’ s request to teach the Roma “a lesson” (see paragraph 7 above).", "Likewise, C.C. ’ s dispute with the deputy mayor that evening, had at its core racist elements.", "Furthermore, the Court considers that the remarks from the Suceava Police report describing the villagers ’ alleged aggressive behaviour as “pure Gypsy”, are clearly stereotypical and prove that the police officers were not racially neutral, either during the incidents or throughout the investigation.", "129. The Court finds thus no reason to consider that the applicant ’ s aggression by the police officers was removed from this racist context.", "130. For all these reasons, the Court considers that the burden of proof lies on the Government, regard having had to all the evidence of discrimination ignored by the police and the military prosecutor and the above conclusion of a racially biased investigation into the incidents.", "131. Therefore, in the present case the evidence indicating the racial motives behind the police officers ’ actions is clear and neither the prosecutor in charge with the criminal investigation nor the Government could explain in any other way the incidents or, to that end, put forward any arguments showing that the incidents were racially neutral.", "132. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 3.", "133. Lastly, having regard to the finding under Article 13 of the Convention, ( see paragraph 9 4 above ), the Court considers that no particular issue arises under Article 14 taken in conjunction with Article 13.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "134. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "135. The applicant claimed 1,000 euros (EUR) in respect of pecuniary damage, that is, the money his family had spent on his repeated hospitalisations after the beating of 3 April 2001.", "He also claimed EUR 70,000 in respect of non-pecuniary damage.", "136. The Government requested the Court to dismiss the applicant ’ s claims for just satisfaction. They considered that the State ’ s responsibility could not be engaged for the hospitalisation costs and that the claims in respect of non ‑ pecuniary damage were exaggerated and unsubstantiated.", "137. The Court notes that the applicant ’ s claims for pecuniary damages are unsubstantiated and rejects them accordingly.", "138. On the other hand, it awards the applicant EUR 15 ,000 in respect of non ‑ pecuniary damage.", "B. Costs and expenses", "139. The ERRC claimed EUR 2,278 for the costs and expenses incurred before the Court, namely the preparation of the case, 10 hours of reviewing previous submissions, research on case-law, contacts with partners and client and 22 hours of drafting submissions to the Court. They asked that the award be paid directly to them, in a separate account.", "140. The Government contended that the contract signed by the applicant with ERRC had not set the hourly fees.", "141. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 176, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Chamber may reject the claim in whole or in part.", "142. In the present case, having regard to the above criteria, to the itemised list submitted by the applicant ’ s representative and to the number and complexity of issues dealt with and the substantial input of ERRC, the Court awards the requested amount, that is EUR 2,278 to be paid to a bank account indicated by the applicant ’ s representative.", "C. Default interest", "143. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1994 and lives in Bidovce. He is of Romani origin.", "A. Arrest and police custody", "6. At about 7 p.m. on 1 8 December 2010 a twelve-year old boy was mugged and his mobile phone taken from him while he was walking along a road between two villages in south ‑ eastern Slovakia. The perpetrators of the mugging were not known to him.", "The boy and his parents subsequently reported the incident to the local county police.", "7. In response, a police unit consisting of three officers searched the area surrounding the crime scene with the boy and his father.", "At around 8 p. m. they spotted the applicant, who was then aged sixteen, another minor and a third person, all of whom the boy identified as his assailants.", "8. The applicant and his two associates, both of whom were also of Romani origin, were arrested. The parties dispute the circumstances of the arrest.", "The Government relied on entries in the county police logbook for the relevant night and on a note on the record drawn up by the county police dated 18 December 2010 indicating that the suspects had resisted arrest and attempted to flee. They had consequently had to be subdued, no injuries had been sustained, and the use of force by the arresting officers had been found lawful. That material referred to the measures of restraint used against the applicant and the other two suspects as “self-defence mechanisms for holding and grabbing ”. The applicant, for his part, denied that he had shown any resistance or that the police had used any measures of restraint.", "9. The applicant and his companions were then taken to the county police station. According to the results of a breathalyser test carried out there, all three detainees had consumed alcohol and the applicant was in a state of slight inebriation.", "10. The three suspects were kept at the police station and preliminarily questioned ( vyťažení ) by officers from the county police. As to the rooms in which they were kept, these were used as offices, were fitted out with the usual office equipment and were not furnished as detention cells.", "11. The applicant ’ s and the Government ’ s accounts in relation to further details vary as follows.", "According to the applicant, during the probing, the officers subjected him to psychological pressure and physical violence with a view to obtaining his confession. In particular, he was slapped and punched in the head, was not allowed to sit or lie down or to rest during the entire length of his detention, and was not provided any food or drink.", "In the Government ’ s submission, there had been no ill-treatment, the three suspects were kept in separate rooms and were checked on at fifteen ‑ minute intervals. The applicant was allowed to use the toilet, which was equipped with a washbasin with drinkable tap water.", "12. The Public Prosecution Service (“the PPS”) was informed of the arrest and, at 11.10 p. m. the case file, along with the responsibility for the detention of the young men, was passed on to an investigator from the local district police.", "13. Meanwhile or in parallel, the victim was examined by a doctor, his mother orally submitted a criminal complaint, and the crime scene was inspected.", "B. Charge", "14. In the early hours of 19 December 2010 the applicant and his two co-detainees were charged with robbery and the investigator decided to place them in a facility for provisional detention. However, the decision was not implemented as no room was available in such a facility within a reasonable distance.", "Subsequently, a legal -aid lawyer was appointed for the applicant and a copy of the document containing the charges was sent to, inter alia, the child protection services.", "15. Between 12 noon and 1 p. m. on 19 December 2010 the applicant was brought before the investigator, who interviewed him in the presence of his mother and the lawyer. No mention was made of any ill ‑ treatment.", "16. At 1.5 0 p. m. the applicant was placed in a provisional detention cell as documented by a protocol, which cites him as submitting in response to a pre-printed question that had not been subjected to any violence. The relevant documentation further contains a hand-written note with the applicant ’ s signature indicating that “[he] ha [d] received dinner”. According to the Government, the cell was equipped with, inter alia, a washbasin and drinkable water from the tap.", "17. At 6.05 p. m. the applicant and his co-detainees were released, and the police took them home.", "18. When the applicant ’ s mother appeared before the investigator on 20 December 2010 she decided to avail herself of her right not to give evidence, making no mention of any ill-treatment.", "19. On 21 December 2010, acting through the intermediary of his lawyer, the applicant lodged an interlocutory appeal against the charge, arguing that he himself had not been involved in the mugging, which had been perpetrated by his minor associate alone and to which the latter had confessed. There was no mention of any ill-treatment.", "20. On 12 January 2010 the charge against the applicant was withdrawn.", "C. Criminal complaint of ill- treatment in detention", "21. In the applicant ’ s submission, meanwhile, in the days that followed his release, his mother presented herself at the county police station and contacted the Ministry of the Interior by telephone to complain about the treatment to which her son had been subjected while detained. According to the applicant, her complaint was not registered and she was orally advised to submit it in written form.", "According to the Government, however, the heads of the county police and the district police, who were the only persons entitled to receive complaints in matters such as those obtaining in the present case, did not receive any complaint from the applicant ’ s mother. Similarly, there was no mention of a visit or any communication from her in the records of visits and telephone calls received by the county police or in the operational logbook of the district police.", "22. On 5 January 2011 the applicant and his associates lodged a written criminal complaint with the Ministry of the Interior.", "They directed it against the officers of the county police who had been on duty between 7 p. m. on 18 December 2010 and 10 a. m. on 19 December 2010, suggesting that the offence of abuse of authority of a public official could have been committed.", "In particular, they submitted that, while in police custody, each of them separately had been pressured to confess on the pretext that the others had already confessed. The applicant also submitted that he had been subjected to slapping in the face and on the head until he had confessed. The persons inflicting that treatment had worn uniforms. Although the applicant did not know their identity, he would certainly recognise them. Another person had been present, not wearing a uniform, presumably a relative of the boy who had been robbed.", "Throughout the entire time in police custody, the applicant had had to stand, without being allowed to sit or lie down, and he had not been given any food or water.", "Moreover, in the applicant ’ s submission, his legal guardians had not been notified of his custody, let alone been present.", "23. The applicant submitted a medical report dated 19 December 2010. The doctor who issued the report observed that the applicant had “allege[d] that he had been beaten by police officers the day before” and “had received a slap on the right half of a cheek”. In reply to a printed question about whether the injury could have been sustained as alleged, the reply “yes” was given. The doctor further observed that there was no haematoma and that the cheek was sensitive and slightly swollen. He diagnosed “a bruised cheek on the left ” and classified the injury as slight, with recovery time below seven days.", "D. Determination of the criminal complaint", "24. The criminal complaint was sent to the local Control and Inspection Section (“ the CIS”) of the Ministry of the Interior for examination. Subsequently, the part of the complaint concerning the failure to notify the applicant ’ s legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest was sent to the district police (see paragraph 2 9 below).", "25. In examining the complaint concerning the alleged physical mistreatment, the CIS interviewed the applicant and his associates, as well as the investigator and two officers under suspicion. In addition, it examined the case file concerning the investigation into the alleged robbery and other documentary material.", "26. On 9 March 2011 the CIS dismissed the complaint. In doing so it observed that the applicant had not raised any complaint of ill-treatment during his interview with the investigator on 19 December 2010, and held that this could not be explained by his proclaimed fear of the officers involved since, in that interview, the applicant had been assisted by his mother and lawyer (see paragraph 1 5 above).", "The CIS observed that in his oral depositions, the applicant had claimed that he had been beaten at the county police station for about three hours and that he had sustained bruises and a swollen cheek. However, those allegations of sustained beating and its consequences did not correspond to the findings in the doctor ’ s report of 19 December 2010, which only attest to an allegation of having received a slap on the right cheek and to having a swollen cheek, but no haematoma.", "The CIS also noted that in the investigation file concerning the alleged robbery there was no indication of any ill-treatment. It observed that the applicant ’ s injury could have been inflicted in the course of his arrest, which he had resisted and which accordingly had had to be carried out forcefully.", "In addition, the CIS observed that the police officers in question had not been involved in the investigation of the alleged robbery, but had merely been guarding the applicant. Consequently, they had had no reason to pressure him into confessing.", "27. The applicant challenged the decision of 9 March 2011 by lodging an interlocutory appeal with the PPS. He requested twice that a decision by the PPS to dismiss the appeal be reviewed.", "The applicant argued in particular that he had not resisted his arrest and that, accordingly, no physical force had been used in the course of it. His injury could therefore not be explained as the CIS had done. He had not complained of the ill-treatment before the investigator because nobody had asked him about it and because he had been concerned about possible repercussions.", "The applicant further argued that the fact that there was no mention of the ill-treatment in the investigation file was irrelevant. In fact, it was logical, because the officers involved would naturally not mention their misconduct and would deny it. That incongruity and contradiction of the arguments had not been examined.", "According to the applicant, a “racial motive was not excluded” and the treatment to which he had been subjected had been contrary to Article 3 of the Convention.", "28. The interlocutory appeal and the requests for review were eventually dismissed by the Office of the Prosecutor General (“the OPG”), which communicated its decision to the applicant in a letter of 29 September 2011.", "The PPS fully endorsed the findings of CIS, considering as crucial the fact that before the doctor on 19 December 2010 the applicant had only alleged slapping, that the doctor ’ s observations on the applicant ’ s injury did not correspond to the applicant ’ s subsequent allegation of sustained beating, and that the applicant had not raised any ill-treatment allegation with the investigator on 19 December 2010.", "Without any explanation, the PPS also concluded that there was no indication of any racial motive behind the treatment complained of by the applicant.", "29. As to the part of the applicant ’ s criminal complaint concerning the alleged failure to notify his legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest (see paragraph 2 4 above), the district police informed the applicant in a letter of 8 June 2011, without any explanation at all, that “in the investigation of the given matter, no error had been committed by the investigative organs”.", "E. Final domestic decision", "30. On 2 December 2011 the applicant lodged a complaint, under Article 127 of the Constitution, with the Constitutional Court against the OPG and the Regional Office of the PPS involved in his case.", "He emphasised that at the time of his arrest he had been a minor, that he had been kept at the police station the whole night without being able to sit or lie down, and without being given any food or water, and that he had been subjected to psychological pressure and physical violence with a view to forcing him to confess. He considered that such treatment had been in breach of his rights under Article 3 of the Convention, as was the ensuing investigation into his complaints on account of its lack of efficiency and independence, as well as the authorities ’ failure to act on their own initiative.", "The applicant also alleged that the lack of a proper investigation had been aggravated by the lack of an effective remedy and discrimination, contrary to his rights under Articles 13 and 14 of the Convention.", "On the last point, the applicant argued that there had been many known incidents of police violence against the Roma in the course of arrest and detention in Slovakia, and that his treatment by the police had been influenced by his Romani origin.", "31. On 10 April 2012 the Constitutional Court rejected the complaint as manifestly ill-founded. It observed that the applicant had no legal right to have a third person criminally prosecuted, that his right to lodge a criminal complaint merely implied that he had the right “ to have the complaint dealt with by a body authorised to do so ”, and that it had thus been dealt with. It further observed that the applicant had not complained of his alleged ill-treatment before the investigator on 19 December 2010 or in his interlocutory appeal against the charge (see paragraphs 1 5 and 1 9 above). The fact that he had had those means of asserting his rights at his disposal excluded the jurisdiction of the Constitutional Court. It concluded without further explanation that, in the circumstances, neither the proceedings before the PPS nor their decisions could have violated the applicant ’ s rights as identified in his constitutional complaint.", "The decision was served on the applicant on 25 April 2012.", "II. INTERNATIONAL MATERIAL", "32. Various international material concerning the Situation of Roma in Slovakia at the relevant time has been summarised for example in the Court ’ s judgments in the cases of Mižigárová v. Slovakia (no. 74832/01, §§ 57-63, 14 December 2010); V.C. v. Slovakia (no. 18968/07, §§ 78-84 and 146-49, 8 November 2011); and Koky and Others v. Slovakia (no. 13624/03, § 239, 12 June 2012).", "Further relevant material", "1. The European Commission against Racism and Intolerance (ECRI): Report (Fifth Monitoring Cycle) of 19 June 2014 on Slovakia (CRI[2014]37)", "33. The report contains the following passages:", "“ ...", "3. Racist and homo/transphobic violence", "- Data", "69. Police ill-treatment (and generally speaking abusive behaviour) towards Roma have also been reported by the media, civil society and international organisations (IOs)...", "...", "- Authorities ’ response", "...", "77. ... The most famous example with extensive media coverage concerns a group of Roma boys who were allegedly subjected to degrading treatment while detained by police officers in Košice in March 2009. Although the racist motivation of the crime was included in the indictment of 10 policemen in spring 2010 to date the case is still pending. More recently, in June 2013, NGOs and the media reported repressive police action in a village in the Kosice region, Moldava nad Bodvou, which allegedly resulted in injuries to over 30 individuals, including children. Only six months after the incident did the General Prosecutor ’ s office order an investigation into the police action which is still pending.", "...", "79. ECRI reiterates its recommendation that ... the Slovak authorities provide for a body which is independent of the police and prosecution authorities, entrusted with the investigation of alleged cases of racial discrimination and misconduct by the police.", "80. ECRI also strongly reiterates its recommendation that the Slovak authorities ensure effective investigations into allegations of racial discrimination or misconduct by the police and ensure as necessary that the perpetrators of these types of acts are adequately punished.", "... ”", "2. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment: Report of 25 November 2014 on its visit to Slovakia in 2013 (CPT/Inf [2014] 29)", "34. The report contains, inter alia, the following:", "“ 11. ... the [CPT] delegation did receive a number of consistent and credible allegations of physical ill ‑ treatment by police officers (including from several detained juveniles). Most of the allegations concerned the time period immediately after apprehension (even when the person concerned allegedly was not resisting apprehension or after he/she had been brought under control) and the period before and during police questioning. The alleged ill-treatment mostly consisted of slaps, punches and kicks to various parts of the body. In one case, the head of a detained juvenile was allegedly repeatedly banged against a wall by a police officer during questioning, apparently in an attempt to extract a confession.", "Another person met by the delegation stated that during his apprehension on the street, after having been brought under control by the police, he had been slapped in the face and kicked by a uniformed police officer...", "...", "16. ... According to the information available, on 19 June 2013, some 60 police officers entered the settlement and individual houses, officially in an attempt to search for wanted individuals and stolen goods. [ ... ] Following the operation, 15 persons were apprehended and escorted to the Moldava nad Bodvou sub-district police department where they spent several hours. Allegedly, in the course of the actual apprehension and subsequent detention, several individuals were ill-treated by the police ....", "17. In its report on the 2009 visit, the CPT referred to the incident of 21 March 2009, concerning the case of six Roma juveniles who had allegedly been forced, under threat of physical assault by police officers, to strip naked in a police station in Košice and to slap each other. Furthermore, they had allegedly been subjected to intimidation by police dogs. The Committee is concerned to note that, according to the information provided by the Slovak authorities during the 2013 visit, i.e. four-and ‑ a-half years after the alleged incident, the criminal case was still pending before the first instance court ....", "... ”", "3. UN Committee against Torture (CAT): Concluding Observations on the Third Periodic Report of Slovakia (2007-2013) of 8 September 2015 (CAT/C/SVK/CO/3)", "35. In paragraph 11 of its report, the Committee expressed its concern :", "“ ...", "(d) That no charges were brought against police officers who participated in the raid on 19 June 2013 on the Roma settlement of Moldava nad Bodvou in eastern Slovakia, which resulted in the apprehension of 15 persons, a number of whom reportedly were seriously ill-treated by the police during their apprehension and subsequent detention;", "(e) That all 10 policemen who physically abused and inflicted degrading treatment on six Roma juveniles in the city of Košice on 21 March 2009 were acquitted in the first instance judgement by the Košice II District Court on 27 February 2015, since the court refused to admit the video recording of the incriminating act as a legally obtained piece of evidence.", "... ”" ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION", "36. The applicant complained that he had been subjected to treatment prohibited under Article 3 of the Convention and that his allegations to that effect had not been properly investigated, contrary to the requirements of that provision and Article 13 of the Convention.", "Article 3 of the Convention reads as follows:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13 provides that:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "37. As to the Article 3 complaints, the Government objected that the applicant had failed to meet the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention, in that he had not properly pursued his assertions at the domestic level and had failed to claim damages from the State under the Police Corps Act and the State Liability Act in relation to the treatment suffered at hands of State agents. Consequently, they considered the Article 13 complaint manifestly ill-founded.", "38. The applicant disagreed.", "39. The Court considers that, on the specific facts of the present case, the Government ’ s non-exhaustion objection in relation to the applicant ’ s Article 3 complaints raises issues which are closely related to the merits of these complaints and the complaint under Article 13 of the Convention.", "40. Accordingly, the Court finds that the complaints under Articles 3 and 13 of the Convention should be examined together and that the Government ’ s objection of non-exhaustion of domestic remedies should be joined to the merits of the Article 3 complaints.", "41. Other than that, the Court notes that the relevant part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Substantive limb of Article 3 of the Convention", "(a) Parties ’ arguments", "42. The applicant alleged that he had been beaten, denied food and water, subjected to psychological pressure and racially discriminated against during his detention on 18 and 19 December 2010.", "43. The Government contested the applicant ’ s allegations as to the extent of his injury, the conditions of his detention and the treatment to which he had been subjected while detained.", "In particular, they pointed out that, on the evidence available, the applicant had only had a swollen and bruised left cheek, which he had attributed to a slap in the face (see paragraph 2 3 above ), which was in contradiction of his allegations at the domestic level ( see, for example, paragraph 2 6 above ). In the Government ’ s submission, the applicant ’ s injury was caused by the measures used to overcome his resistance during his arrest, which measures had been lawful and legitimate.", "Moreover, the Government considered it incongruous on the one hand, that the applicant would have been beaten with a view to pressing him into confessing, as he alleged, and on the other hand, that having not confessed, his version would have been promptly accepted by the investigator. The Government also contended that the officers at the county police station would not have had any reason to pressure him into confessing since shortly after his arrest it had become clear that the case fell outside the jurisdiction of the police and within the jurisdiction of the investigating authorities. Therefore, the police officers had merely held the applicant in custody and had played no role in the investigation of the case.", "In addition, the Government submitted that, contrary to his allegations, the applicant had been served dinner on 19 December 2010, although it was not possible to establish whether he had been served any breakfast and lunch on that day. In their submission, he had had access to drinking water on both 18 and 19 December 2010 ( see paragraphs 1 1 and 1 6 above).", "The Government acknowledged that, in view of the lapse of time, it was not possible to establish at what time on 18 December 2010 the applicant ’ s legal guardians had been notified of his arrest but it was known that his mother had been present during his questioning before the investigator on 19 December 2010.", "The Government submitted that the applicant, who was a healthy young man, had been detained for less than twenty-four hours and, on his release, had a swollen cheek with no lasting consequences on his health. In their view, the applicant ’ s treatment had not attained the minimum level of severity to fall within the purview of Article 3 of the Convention.", "44. In reply, the applicant disagreed and reiterated his complaints. In particular, he resolutely denied any resistance to his arrest, the use by the police of any measures of restraint and, accordingly, any injury resulting from the use of any such measures. In his view, the reports on the use and the lawfulness of the use of measures of restraint during his arrest had been fabricated later to provide an explanation for his injuries.", "In addition, the applicant contended that the measures allegedly used against him for “holding and grabbing ” him did not normally leave marks such as those observed on his cheek by a doctor.", "Moreover, the applicant pointed out that he had been served dinner the day following the day of his arrest whereas the applicable rules required food to be served to any person detained for more than six hours.", "Emphasising that he was of Romani origin and that he had still been a minor at the time of his detention, the applicant considered that he had shown beyond all reasonable doubt that he had been subjected to treatment reaching the threshold required for a breach of Article 3 of the Convention.", "(b) The Court ’ s assessment", "45. The Court has recently summarised the applicable case-law principles in its judgment in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81 ‑ 90, ECHR 2015).", "46. The core of the present case appears to be the applicant ’ s allegation that, while at the county police station, and in combination with other factors, he was slapped in the face by the police officers questioning him.", "47. The Court reiterates that such treatment has been found to fall within the ambit of Article 3 (see Bouyid, cited above, §§ 100-12). It remains open, however, on the facts of the present case, whether the applicant was in fact slapped in the face in the circumstances he alleges.", "48. There is no dispute between the parties that the applicant was detained and that shortly after his release he was found by a doctor to have a slightly swollen cheek. At the same time, there is no indication that he had had a swollen cheek before his arrest. Nor has it been alleged or otherwise indicated that the swollen cheek was self ‑ inflicted or that the ill-treatment causing his swollen cheek was inflicted between his release and his examination by a doctor.", "49. It can therefore be concluded that the applicant ’ s swollen cheek was the result of measures taken against him by agents of the State between his arrest and release.", "50. The contention between the parties is as to precisely how the applicant ’ s condition came about. The Government on their part cited as the cause of his injury the measures used by the police for “ holding and grabbing ” him in order to overcome his resistance to arrest. The applicant, on the other hand, resolutely denied any such proposition and insisted that the police officers had deliberately slapped him in the face during his questioning.", "51. The Court observes that the controversy between the parties as to the cause of the applicant ’ s swollen cheek arose already at national level and that it continues before it with reference to certain arguments or pieces of evidence that do not appear to have been advanced and addressed expressly at the domestic level. It finds that, as such, the matter appears to fall primarily to be examined under the procedural head of Article 3 of the Convention.", "52. At any rate, the Court reiterates that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not made unavoidable by the circumstances of a particular case (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000).", "53. In assessing the credibility of the applicant ’ s factual assertions, the Court finds it appropriate to scrutinise first of all the existing medical evidence concerning the applicant ’ s condition following his release from custody. The medical report of 19 December 2010 summarises his allegations as to the cause of his condition so that “he had been beaten by police officers the day before” and that he “had received a slap on the right cheek”. In terms of findings, the doctor observed that there was no haematoma, that the cheek was bruised, sensitive and slightly swollen, and that the injury was slight, with recovery time below seven days (see paragraph 23 above).", "54. The Court observes in particular that the doctor ’ s findings do not contain any further details as to the location, size and shape of the applicant ’ s injury and contain no elements, such as a state of shock (see, a contrario, Bouyid, cited above, §§ 12 and 93), fatigue, dehydration or anything else to corroborate his allegations.", "55. Moreover, they contain nothing as regards the cause of the applicant ’ s injury. In particular, the Court notes that there is no indication in the doctor ’ s conclusions or otherwise that it could only have been caused by a slap in the face as alleged by the applicant or, conversely, that it could not have been caused by the means referred to by the Government.", "56. In addition, the Court cannot but note certain inconsistencies in the applicant ’ s submissions as noted by the doctor and made to the domestic authorities and before the Court.", "In particular, the medical report indicates that the applicant alleged that he had received a slap on the “right half of a cheek”, while the doctor ’ s finding of a bruise refers to a “cheek on the left”.", "Moreover, the applicant ’ s allegation that he had been beaten for three hours in the face and on the head, as a result of which he had bruises (see paragraph 26 above ), and that he was slapped and punched in the head (see paragraphs 11 and 22 above) is contradicted by his allegations as recorded by his doctor that he had been slapped in the face and the finding of that doctor that there were no haematoma (see paragraph 23 above).", "57. The Court further notes that the Government have furnished an alternative explanation for the applicant ’ s condition and have submitted documentary evidence for a part of their explanation, in particular as to the alleged use of physical force to overcome the applicant ’ s alleged resistance during his arrest.", "The applicant, for his part, disputed the Government ’ s version and submitted that the reports on the use and the lawfulness of the use of measures of restraint during his arrest had been fabricated later to provide an explanation for his injuries.", "In that regard, however, the Court notes that the documentation produced by the Government appears to be detailed and systematic while the applicant ’ s contention has been general in terms and without any evidence in its support.", "58. Furthermore, the Court observes that, although the applicant ’ s alleged ill-treatment took place during his detention between 18 and 19 December 2016, he lodged an official complaint in that respect only after seventeen days, on 5 January 2011. In so far as he alleged that complaints on his behalf had been made earlier by his mother, the Court observes that he has offered nothing to support such allegations and that the Government ’ s claim that there is no trace of any such complaints has gone unanswered by the applicant. In addition, the Court notes that the applicant has produced no other elements to support his version of the impugned events such as, for example, a statement from his co-accused.", "59. Thus, in view of all the circumstances, the Court considers that the explanation offered by the Government of the events underlying the applicant ’ s allegations is a plausible. Accordingly, it finds that it has not been established that the applicant was actually exposed to slapping in the face during his preliminary questioning at the county police station.", "60. It therefore cannot be concluded that the applicant was exposed to treatment contrary to Article 3 of the Convention. This finding is not altered by other aspects of the case, which the Court finds auxiliary to the principal aspect set out above and which have either not been established on the facts (denial of liquid, psychological pressure) or did not attain the requisite threshold for the legal protection under Article 3 of the Convention to be engaged (to some extent denial of food).", "61. As to the alleged discriminatory nature of the applicant ’ s treatment, the Court notes that it was complained of in very vague and general terms. It considers that, given the specific circumstances of the present case, such allegations may be of relevance under the procedural head of Article 3 of the Convention rather than under its substantive head.", "62. In these circumstances, the there is no need to determine the question of exhaustion of domestic remedies attached to the merits of the complaint under the substantive head of Article 3. This concerns in particular the possibility of claiming damages from the State under the Police Corps Act and the State Liability Act.", "63. In sum, there has been no violation of the substantive head of Article 3 of the Convention in the present case.", "2. Procedural limb of Article 3 of the Convention", "(a) Parties ’ arguments", "64. The applicant complained that the authorities concerned had failed to carry out on their own initiative an effective, independent and prompt investigation into his credible assertion that he had been subjected to treatment that was incompatible with Article 3 of the Convention.", "65. By way of reply, the Government objected that the applicant had failed to pursue his Article 3 complaints properly, in particular by raising them during his questioning on 19 December 2010 and in his interlocutory appeal of 21 December 2010 against his charges. Likewise, no mention of any ill ‑ treatment had been made by his mother when she appeared before the investigator on 20 December 2010.", "66. In addition, the Government recapitulated the course of the investigation into the applicant ’ s criminal complaint. They pointed out that he had officially complained of ill-treatment for the first time two weeks after his release. The ensuing investigation had involved the examination of the entire case-file concerning the robbery of which he had then stood accused, the police records pertaining to his detention, medical reports, and oral evidence from all those concerned. In addition, the applicant ’ s allegations had not only been examined by the CIS but also, following his interlocutory appeals, by three levels of the PPS. The former was structurally and hierarchically separate from the Police Corps and was directly answerable to the Minister of the Interior, while the latter was a separate structure responsible for, inter alia, supervision of the investigation authorities.", "In sum, the Government considered that the impugned investigation had been extensive, prompt, effective and independent. In the course of it, the authorities had properly examined all of the applicant ’ s arguments.", "67. The applicant disagreed and reiterated his complaints. In particular, he contended that his allegation of having been submitted to treatment incompatible with Article 3 of the Convention had been credible, inter alia, in view of the fact that he had been detained at the county police station in an irregular fashion for thirteen hours, and the ensuing investigation into his allegation had been neither effective nor institutionally independent. In addition, he submitted that he had had asserted his rights by lodging a criminal complaint and by pursuing the remedy available in that respect and emphasised that the authorities had failed to pursue the investigation on their own initiative, despite his mother having complained about his ill ‑ treatment in person to the head of the county police station and by telephone to the CIS.", "68. In a further reply, the Government submitted that the only persons authorised to receive complaints in matters such as those obtaining in the present case were the heads of the county police and of the district police. Neither of them had had any records or recollections of having received a complaint from the applicant ’ s mother, and there had been no mention of a visit or any communication from her in the respective police records (see paragraph 2 1 above).", "In addition, relying on the findings of the Constitutional Court in its decision of 10 April 2012 (see paragraph 3 1 above), the Government contended that the applicant had had no legal right to have a third person criminally prosecuted. His right to lodge a criminal complaint had merely implied that he had the right “to have the complaint dealt with by a body authorised to do so”, and it had been treated accordingly.", "(b) The Court ’ s assessment", "( i) Whether the allegation of treatment incompatible with Article 3 of the Convention was credible", "69. The Court reiterates that where an individual raises an arguable claim that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see, for example, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 182, ECHR 2012, with further references). The next stage in the Court ’ s analysis of the applicant ’ s complaint is an assessment of whether his allegations of ill ‑ treatment at the national level can be considered as credible.", "70. To that end, the Court observes that, according to the applicant, his grievances were first raised at the domestic level by his mother in the days following his release and that the authorities failed to act upon them proactively. However, as submitted by the Government and not opposed by the applicant, there appears to be no record of any such submissions having been made by his mother. In addition, the Court notes that the applicant himself has not substantiated his allegations that a complaint was lodged on his behalf by his mother. In these circumstances, the Court cannot but conclude that the applicant ’ s allegations that a complaint was made by his mother and not acted upon by the authorities have not been made out.", "71. Nevertheless, there is no doubt that an official complaint was made on the applicant ’ s behalf on 5 January 2011. In it, those allegedly responsible for his treatment were identified in some detail, the nature of the treatment allegedly inflicted on him was described, and a medical certificate attesting to his condition was submitted in evidence.", "The Court is of the opinion that, in assessing the credibility of the applicant ’ s allegations, it must take into account that the applicant was a minor and that there were misgivings as to the regularity of his detention and as to whether his legal guardians had properly been notified of his custody, especially as all of those factors must have been known to the authorities at the relevant time.", "72. All in all, the Court has no difficulty in accepting that the applicant ’ s allegations of ill-treatment contrary to the requirements of Article 3 of the Convention were sufficiently credible to give rise to an obligation on the part of the authorities to investigate them in compliance with the requirements of Article 3 of the Convention. This conclusion is independent of whether or not the alleged ill-treatment has ultimately been made out before the Court because, in the event of ill-treatment of a person deprived of liberty at the hands of his or her captors, it is precisely the lack of a proper investigation that often makes the ill-treatment impossible to prove.", "( ii) Whether the investigation was compatible with Article 3 of the Convention", "73. The Court has summarised the applicable general principles in its Bouyid judgment (cited above, §§ 114-23) as follows:", "- The essential purpose of an investigation required for the purposes of Article 3 of the Convention is to secure the effective implementation of the domestic laws prohibiting torture and inhuman or degrading treatment or punishment in cases involving State agents or bodies, and to ensure their accountability for ill-treatment occurring under their responsibility.", "- Generally speaking, for an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence.", "- Whatever mode is employed, the authorities must act of their own motion. In addition, in order to be effective the investigation must be capable of leading to the identification and punishment of those responsible. It should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used force but also all the surrounding circumstances.", "- Although this is not an obligation of results to be achieved but of means to be employed, any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of the required standard of effectiveness.", "- A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.", "- The victim should be able to participate effectively in the investigation.", "- Lastly, the investigation must be thorough, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation.", "74. On the facts of the present case, in response to the applicant ’ s criminal complaint, the authorities interviewed him and his associates, as well as the investigator and the two police officers under suspicion. In addition, they examined the case file concerning the investigation into the alleged robbery and other documentary material.", "75. Although the applicant ’ s interlocutory appeals against the decision to dismiss his criminal complaint and his constitutional complaint in this matter were subsequently examined by the PPS at three levels and ultimately by the Constitutional Court, there is no indication that any additional evidence was taken and examined at those levels or that those examinations constituted more than a review and ultimate endorsement of the position taken by the CIS.", "76. The authorities ’ reasoning as regards the part of the applicant ’ s complaint concerning the alleged beating at the police station may be summarised as follows: the applicant had not raised any complaint of ill ‑ treatment in his interview with the investigator on 19 December 2010 or in his interlocutory appeal against his charge; his allegations of sustained beating did not correspond to his submission to the doctor or to the latter ’ s findings in the medical report of 19 December 2010; there was no indication of any ill-treatment in the investigation file concerning the alleged robbery, and the applicant ’ s injury could have been inflicted in the course of his arrest; and the police officers in question would not have had a motive for beating him into confessing as they were not investigating the alleged robbery but were merely guarding him.", "77. As regards those findings, the Court observes at the outset that, rather than investigating the applicant ’ s allegations on their own initiative, the authorities appear to have shifted the burden of pursuing his claims to him. In particular, one of the reasons why the applicant ’ s criminal complaint in relation to the alleged beating at the police station was dismissed was that he had failed to raise that complaint before in his interview with the investigator (see paragraph 26 above). Moreover, they did so retrospectively, referring the applicant to the proceedings against him, without there being any apparent logic for such a proposed course of action. By a similar token, the Court finds it difficult to follow the argument that no mention of any ill-treatment of the applicant was found in the investigation file concerning the robbery imputed to him at that time.", "78. As to the Government ’ s contention, made in reliance on these findings, that the applicant failed to pursue his Article 3 claims properly, the Court notes that it appears directly to contradict an essential attribute of the protection under the Convention in relation to credible assertions of treatment contrary to Article 3 of the Convention that the authorities must act of their own motion. The applicant undoubtedly submitted his claims to the authorities in his criminal complaint of 5 January 2011 and he lodged and pursued all the way to the Constitutional Court any remedy available to him along that avenue.", "79. The Court further notes that no steps appear to have been taken with a view to eliminating the inconsistencies in the versions as to the cause of the applicant ’ s swollen cheek. The authorities could have taken measures to examine the other person who, in the applicant ’ s submission, had been present at the county police station during his questioning; cross-examined the officers involved, whom the applicant could not identify but considered that he would be able to recognise; held a face-to-face interview with the applicant and those officers; and questioned the doctor who had treated the applicant shortly after his release.", "80. In addition, the Court notes that the remaining part of the applicant ’ s criminal complaint, namely that concerned with the alleged failure to notify his legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest, was dismissed without any explanation at all, the district police limiting themselves to concluding that, “in the investigation of the given matter, no error was committed by the investigative organs”. The Court also notes that the relevant part of the applicant ’ s subsequent constitutional complaint appears to have been completely overlooked by the Constitutional Court.", "81. The Court considers that these elements, coupled with the sensitive nature of the situation related to Roma in Slovakia at the relevant time (see paragraph 32 above and Koky and Others, cited above, § 239 ), are sufficient for it to conclude that the authorities have not done all that could have been reasonably expected of them to investigate the applicant ’ s allegations of ill ‑ treatment and, as the case may be, to draw consequences.", "82. In view of the above findings, the Court dismisses the relevant part of the Government ’ s non-exhaustion objection and concludes that there has been a violation of the procedural limb of Article 3 of the Convention.", "83. At the same time, in view of this conclusion, it does not find it necessary to examine on the merits the remaining aspects of the applicant ’ s complaints under the procedural limb of Article 3 or his complaint under Article 13 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION", "84. Lastly, relying on Article 14 in conjunction with Articles 3 and 13 of the Convention, the applicant complained that his ethnic origin had been a decisive factor in the ill - treatment he had suffered during his detention, as well as in the failure of the authorities to conduct a proper investigation into it.", "Article 14 of the Convention provides that:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "85. In support of his complaint, the applicant referred to various international reports and other texts, and submitted that discrimination against Roma in Slovakia was pervasive in all aspects of their lives and included attacks by police officers and the general population against Roma and a lack of investigation into such attacks.", "86. In reply, the Government objected that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention and considered that, in any event, the complaint was manifestly ill ‑ founded. They supported the first part of their submission by reasoning similar to that advanced in respect of their non-exhaustion objection in relation to the applicant ’ s Article 3 complaints. As to the remainder of their submission, they considered that there was no indication that the applicant had been in a worse situation than anybody else on account of his origin. In the absence of any such indication, there had been no reason for the authorities to examine separately possible racist motives on the part of the police officers involved in the applicant ’ s case.", "87. The applicant responded by submitting that his racial origin had been a decisive factor in the treatment he had received during his detention and in the subsequent investigation into it. In his view, the authorities had had at their disposal indications that a racist motive could have played a role in his treatment and it had been up to them to unmask it and produce evidence in that regard, which in his view they had failed to do.", "88. In a further reply, the Government emphasised that the applicant and his associates had been arrested after the victim of the robbery had identified them as having been involved in it, that their detention had had to do exclusively with their prosecution for the robbery, and that they had all been released immediately after the necessary depositions had been taken by the investigator. That entire process had been strictly free of any racist motives.", "89. The Court observes first of all that the Government have raised an objection under Article 35 § 1 of the Convention. It considers, however, that it is not necessary to make a separate ruling on it because the complaint is in any event inadmissible on other grounds, as laid out below.", "90. The Court ’ s case-law on Article 14 establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. Racist violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Stoica v. Romania, no. 42722/02, § 117, 4 March 2008, with further references).", "91. The Court also reiterates that, in certain cases of alleged discrimination, it may require the respondent Government to disprove an arguable allegation of discrimination and, if they fail to do so, find a violation of Article 14 of the Convention on that basis (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 157, ECHR 2005 ‑ VII).", "92. Returning to the facts of the present case, the applicant submitted in his interlocutory appeal against the decision of 9 March 2011 that a “ racist motive was not excluded”. In that submission, he invoked Article 3 of the Convention, but not Article 14 or its domestic equivalents. Thereafter, the applicant complained of discrimination in his constitutional complaint, referring to his Romani origin and submitting that there had been many known incidents of police violence against the Roma in the course of arrest and detention in Slovakia. His discrimination complaint before the Court is couched in similar terms.", "93. The Court is aware of the seriousness of the applicant ’ s allegations and, as it has already noted above (see paragraph 32 ), of the sensitive nature of the situation related to Roma in Slovakia at the relevant time. However, when exercising its jurisdiction under Article 34 of the Convention, it has to confine itself, as far as possible, to the examination of the concrete case before it. Its task is not to review domestic law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention ( see DRAFT – OVA a.s. v. Slovakia, no. 72493/10, § 65, 9 June 2015, with further references ).", "94. From that perspective, the Court notes the vagueness and general nature of the applicant ’ s allegations, both domestically and before this Court. It observes in particular that they comprise no individual elements imputable to the officers involved in the applicant ’ s case or in any other way linked to its specific circumstances. The Court is of the view that, therefore, the present case must be distinguished from those in which the burden of proof as regards the presence or absence of a racist motive on the part of the authorities in an Article 3 context has been shifted to the respondent Government (contrast Makhashevy v. Russia, no. 20546/07, § § 176-79, 31 July 2012; Stoica, cited above, §§ 128-32; and Nachova and Others, cited above, §§ 163-66). Thus, the authorities cannot be said to have had before them information that was sufficient to bring into play their obligation to investigate on their own initiative possible racist motives on the part of the officers involved ( see Mižigárová, cited above, § § 122 and 123 ).", "95. In sum, the Court finds that the applicant has failed to make a prima facie case that his treatment during his detention and the subsequent investigation into it was discriminatory.", "It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "96. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "97. The applicant claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage.", "98. The Government contested the claim for being overstated.", "99. The Court accepts that the applicant has suffered non-pecuniary damage. Having regard to all the circumstances, it awards him EUR 1, 500, plus any tax that may be chargeable, under that head.", "B. Costs and expenses", "100. The applicant also claimed EUR 648.28 for legal fees incurred before the domestic authorities, EUR 4,600 for legal fees incurred before the Court, and EUR 322 for administrative expenses incurred both domestically and before the Court. In support of this claim, he submitted a conditional fee agreement with his lawyer and a pro-forma invoice from her itemising the fees and expenses incurred.", "101. The Government requested that the claim be determined in accordance with the Court ’ s case-law.", "102. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In addition, the Court has found that conditional fee agreements may show, if they are legally enforceable, that the sums claimed are actually payable by the applicant and that it must, as always, assess whether they were reasonably incurred ( see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § § 54 and 55, ECHR 2000 ‑ XI, with further references ).", "103. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000, plus any tax that may be chargeable to the applicant, covering costs under all heads.", "C. Default interest", "104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants are all Roma who live in Vâlcele.", "A. The police raid of 15 December 2011", "1. The applicants ’ version", "6. At around 5 a.m. on the morning of 15 December 2011 several police officers and gendarmes, together with the local forest ranger – all wearing special intervention clothing – knocked on the applicants ’ door, claiming to be their neighbours. As the applicants hesitated, they broke down the unlocked front door and entered by force. Upon entering the applicants ’ home, the forest ranger placed a balaclava on his head. The police officers also wore balaclavas.", "7. In the first room the police found the fourth applicant (Ms Elena Lingurar), her daughter ( the second applicant, Ms Ana Maria Lingurar) and her daughter- in - law with a seven-month-old baby in her arms. The police dragged the two applicants out of their beds and started hitting them. The fourth applicant was hit on her collar bone with a police truncheon. When the second applicant asked the police why they were beating her mother, she was hit in the mouth and then forced to wash her face to remove the traces of blood.", "8. When the police entered the next room they found the third applicant (Mr Aron Lingurar, born in 1985) with his wife. They dragged him onto the ground, kicked him and shouted abuse. The first applicant (Mr Aron Lingurar, born in 1949) was also taken into that room. He had also been beaten by the police.", "9. Without allowing them to put any clothes on, the police took the first and third applicants out into the yard, pushed them onto the ground and hit them. They then put them in a police car, where the violence continued. The fourth applicant was not allowed to approach them or take them clothes.", "10. The first and third applicants were taken to a police station, where they gave their statements. They were fined and sent back home.", "2. The Government ’ s version", "11. On 12 December 201 1 a forest ranger informed the Araci police that on 7 December 2011 the first applicant had taken home timber which had been illegally cut from the forest. When confronted by forest rangers, the first applicant had become aggressive. The forest ranger explained that the first applicant had exhibited a hostile attitude towards the forest rangers ever since his son, the third applicant, had been fined by the police, in spring 2011. He submitted that the first applicant had set a bad example for his community:", "“We consider that Mr Lingurar Aron, who sees himself as being the leader of the Roma in Vâlcele, by his attitude, instead of helping us solve the problems connected with the Roma community in Vâlcele – which in fact is more peaceful and hard - working than the community in Araci – creates more problems with the example he sets for the others.”", "12. In this context, and in order to reduce and prevent the criminal activity, to strengthen citizens ’ safety, to identify individuals without identity documents, to summon those suspected of having committed several crimes and to recover stolen goods, the police organised the raid of 15 December 2011.", "13. On 14 December 2011 the Covasna Inspectorate of Police ( Inspectoratul de Poliție Județean Covasna; hereinafter “ the IPJ”) drafted an intervention plan with a view to carrying out a raid in the villages in the municipality of Vâlcele. Describing the population of the applicants ’ village, the plan stated that out of 4,311 inhabitants, 826 had been released on parole, 432 had a criminal record, and 600 had been found guilty of violent crimes. The general context was described as follows:", "“The Vâlcele municipality consists of the villages Vâlcele, Araci, Hetea, and Ariuşd. Out of a total population of 4,300 inhabitants, 2,902 are of Roma ethnicity. Most of the members of this ethnicity do not have a steady income and make ends meet from social benefits, the sale of timber stolen from the forest, seasonal and occasional work, and from crime – mostly thefts. ...", "Of the individuals having committed crimes in 2011, it appears that 80% are of Roma ethnicity, with a variety of offences. ...", "As a result of the preventive activity carried out by the [IPJ] in Araci village, six criminal groups have been identified, made up of members of Roma families R., B., C., G., L., and N. [nb: the applicants ’ family is not mentioned among them]”", "14. Given the range of issues to be tackled and the goals of the raid, the intervention involved: fifty-three police officers ( eleven from the department for public order, four from the department for criminal investigations, eighteen from the Sfântu Gheorghe police department, six from Vâlcele police station, ten from the Rapid Intervention Squad ( Serviciul de Intervenție Rapidă; “SIR”), and two from the department for criminal forensics) and thirty gendarmes from the Covasna Gendarmerie Inspectorate ( Inspectoratul Județean de Jandarmi Covasna; hereinafter “ the IJJ”). They had thirteen cars at their disposal.", "15. According to the police report of 15 December 2011, the police officers performed the following acts during the raid: they searched 140 cars and performed 190 identity checks; they issued eight administrative fines ( sancţiuni contravenţionale ); they confiscated fifteen cubic metres of timber; they took sixty-four individuals to the police headquarters for further criminal enquiries; they solved six criminal complaints and enforced two orders to appear ( mandat de aducere ); they identified ten individuals from police operational information; and they took fingerprints from and photographs of fourteen individuals.", "16. The police officers approached the applicants ’ home after 6 a.m. and knocked on the door. When two women (the second and fourth applicants) exited the house, the police asked them to call the third applicant, who was wanted for questioning regarding several criminal acts. The third applicant came out of the house, shouted abuse at the police officers and became physically violent. At that point the police immobilised and handcuffed him, and took him to one of the police cars. The first applicant then came out of the house shouting abuse at the police officers. For safety reasons, they handcuffed him and took him to the same police car where the third applicant was waiting. The second and fourth applicants were presumably injured in the process, as they tried to oppose the police actions. They pulled their own hair, slapped themselves on their faces, hit the gate with their fists and shouted, in order to intimidate the police officers.", "B. Medical reports", "17. On 15 and 16 December 2011 the applicants were examined in the emergency ward of the local hospital. Subsequently, they also underwent a forensic examination.", "18. The forensic report delivered on 15 December 2011 states that the second applicant had dried blood on her lips and left cheek, but no bruises or dental pain. The reason for the bleeding could not be established. She refused to undergo further medical examinations. The conclusion of the report was that she did not present any traumatic lesions but that a trauma caused by an act of aggression could not be excluded.", "19. On 20 December 2011 a forensic medical report was drawn up for the first applicant. It stated that he had complained of chest pain and had two bruises on his chest. An X ‑ ray examination performed on the same day had not revealed any further damage. It was concluded that the trauma could have been caused by being hit with a hard object and that on account of the injuries, the first applicant needed one to two days of medical care.", "20. On 20 December 2011 a forensic medical report was drawn up for the third applicant. The presence of bruises on the right eye, chest and right arm were recorded. The examiner concluded that the injuries could have been caused by a blow with a baseball bat and that the third applicant needed four to five days of medical care.", "21. On 21 December 2011 a forensic medical report was drawn up for the fourth applicant. She complained of abdominal and chest pains and had a bruise on her lower chest. It was concluded that her injuries could have been caused by being hit with a hard object and that she needed one to two days of medical care.", "C. Criminal prosecution", "1. Prosecutor ’ s decision of 11 March 2013", "22. On 20 February 2012 the applicants lodged a criminal complaint against the forest ranger and the police officers on duty on 15 December 2011. They accused the officials of beating them and committing other acts of violence.", "23. The case was investigated by the IPJ under the supervision of the prosecutor ’ s office attached to the Braşov Court of Appeal. Thirteen police officers and three gendarmes were put under investigation. The prosecutor interviewed the applicants and the police officers and gendarmes, as well as three witnesses. The witnesses were the applicants ’ neighbours who had been present during the incidents. The applicants had proposed that they be questioned.", "24. The prosecutor established that the operation had been organised in accordance with the intervention plan drawn up by the IPJ and the IJJ. The assignment had been to take to the Vâlcele police station several individuals needed for questioning concerning several criminal complaints linked to various criminal investigations.", "25. Relying on the statements given by the forest ranger and the police, the prosecutor established that the forest ranger had not participated in the events, and that the raid had started at 7 a.m. and not at 5 a.m. as indicated by the applicants and their neighbours.", "26. The gendarmes denied having committed acts of violence or having seen traces of injuries on the applicants. Police officer P.A. explained that the use of force and the handcuffing had been necessary because of the applicants ’ violent behaviour. Concretely, the first applicant had opposed the police intervention, claiming that he was a local counsellor for Roma matters, and had shouted abuse and threats at the police.", "27. On 6 July 2012 the investigators examined the applicants ’ front door. They noted that some of its window panels had been broken, the wood had been splintered, and the paint was missing from the bottom of the door; they were unable to establish when the door had been damaged.", "28. On 11 March 2013 the prosecutor concluded that there was not enough evidence to institute proceedings against the police officers.", "2. Prosecutor ’ s decision of 17 April 2013", "29. The applicants objected to the prosecutor ’ s decision. They argued mainly that the prosecutor, without justification, had given preference to the statements made by the police to the detriment of those made by the applicants. They also averred that the investigation had failed to provide an explanation for the violence perpetrated against them. They stressed that it was the established and frequent practice of the police in the area to attack members of the Roma community without any justification.", "30. On 17 April 2013 the prosecutor-in-chief from the prosecutor ’ s office attached to the Braşov Court of Appeal dismissed the objection on the following grounds:", "- the intervention had been lawful;", "- the applicants ’ immobilisation and the use of handcuffs had been lawful and made necessary by their aggressive behaviour; they had therefore been taken to the police station, interviewed and fined;", "- the investigation had been completed;", "- the prosecutor had clarified all aspects of the case and examined the evidence gathered;", "- the decision had represented the prosecutor ’ s own conviction based on the evidence in the file, and the reasons given had been adequate;", "- the other assertions made by the applicants had not been substantiated by evidence.", "3. Court ’ s decision of 23 May 2013", "31. The applicants challenged the prosecutors ’ decisions, reiterating the arguments put forward in their objection (see paragraph 29 above).", "32. The Braşov Court of Appeal heard the case and in a decision of 23 May 2013 it sent the case back to the prosecutor ’ s office for further investigations. It mainly considered that the authorities had to provide justification for the injuries sustained by the applicants. The first and third applicants had been taken to the police station, and had thus been under police control for a few hours. The second and fourth applicants had sustained injuries which the prosecutor had failed to explain.", "33. The court further noted that the prosecutor had not identified the person who had given the order to immobilise the first and third applicants and take them to the police station. Both the gendarmes and the police officers involved had denied having immobilised the applicants.", "34. The court went on to question the lawfulness of the police intervention. It noted that at that time the applicants had not been the subject of any criminal investigation and that no order to appear before the police had been issued in their names. It further noted that the second and fourth applicants had not even been arrested.", "35. The court concluded that the criminal investigation had not been exhaustive. It therefore ordered the prosecutor:", "- to hear evidence from witnesses, in particular from other persons who had been targeted by that police intervention and neighbours who could clarify whether the police officers had entered the applicants ’ home;", "- to hear the police officers involved in the operation and those responsible for mounting the operation, in order to find out who had given the order to immobilise the first and third applicants and who had carried out that order;", "- to establish how the immobilisation of the first and third applicants had happened;", "- to establish how the second and fourth applicants, who had not been immobilised by the police, had been injured;", "- to establish who had participated in the operation on behalf of the authorities, whether police officers, gendarmes or other individuals.", "4. New investigation", "36. A new investigation was carried out under the supervision of the same prosecutor from the prosecutor ’ s office attached to the Braşov Court of Appeal.", "37. On 24 July 2013 the IPJ drafted a report on the investigation, confirming the previous findings concerning the use of force and the applicants ’ conduct. The injuries sustained by the second and fourth applicants were explained in the report as follows :", "“ [The two women] had exhibited behaviour specific to Roma in such circumstances: they had started pulling their own hair, slapping themselves on their faces, hitting the gate with their fists and shouting in order to intimidate the police officers .”", "38. On 5 August 2013 the prosecutor ’ s office decided not to prosecute. It considered that all the indications given by the court had been observed during the new investigation and that further clarifications concerning the case and the general situation in Vâlcele had been provided.", "39. The prosecutor explained, in particular, that because of the problems with the Roma community in Vâlcele, the police and gendarmes had had to combine forces. He recalled that on 27 June 2013 a police officer had been injured and was currently in a critical state in hospital following a police intervention aimed at settling a conflict between two rival Roma clans. Likewise, on 15 July 2013 another police officer had had to open fire in self-defence against an individual who had broken the windscreen of a police car during a police intervention triggered by a distress call. The prosecutor noted that most of the inhabitants of Vâlcele, and in particular those from three villages (Hetea, Vâlcele and Araci), were known for breaking the law and were aggressive towards the police. The applicants ’ family members had been subject to investigations for the theft of wood or for disturbing public order.", "40. The prosecutor held that the injuries sustained by the first and third applicants could be explained by the use of force during the immobilisation, which had been made necessary by the applicants ’ violent behaviour. The second and fourth applicants had been injured when they had attacked the police officers in order to prevent them from immobilising their family members. The prosecutor reiterated the explanation given in the police report about the behaviour allegedly exhibited by the second and fourth applicants. The identities of the four gendarmes who had executed the immobilisation were known, but had to be kept secret for their own protection.", "41. The applicants objected to that decision, arguing that the prosecutor had failed to investigate whether the use of force had been proportionate and justified. They also complained of the use of stereotypes in respect of Roma in the prosecutor ’ s decision.", "42. On 20 September 2013 the prosecutor-in-chief from the same prosecutor ’ s office upheld the decision on similar grounds to those given in the decision of 17 April 2013 (see paragraph 30 above) and, in addition, on the ground that the prosecutor had complied with the orders made by the court (see paragraph 35 above).", "5. The court decision of 16 January 2014", "43. The applicants complained about the prosecutors ’ decisions, reiterating their previous arguments.", "44. On 16 January 2014 the Braşov Court of Appeal dismissed the applicants ’ complaint as unfounded. The decision was final.", "45. The court considered that the prosecutor had respected the requirements set by the previous court decision (see paragraph 35 above). Additional witnesses who did not belong to the police or gendarmerie had been heard. It also considered that the evidence adduced could not prove beyond any reasonable doubt that the police officers had injured the applicants. The applicants ’ statements and the medical reports, which remained the only elements supporting that theory, were not sufficient to change the conclusion. According to the Court of Appeal, the explanations offered by the prosecutor as to the cause of injuries were plausible and the police officers had not used excessive force. The court also considered that the applicants had an obligation to identify the alleged perpetrators. Lastly, the court noted that the investigations had not been influenced by the fact that the applicants were Roma." ]

[ "II. RELEVANT DOMESTIC LAW", "46. A detailed presentation of the relevant legal provisions can be found in Ciorcan and Others v. Romania (nos. 29414/09 and 44841/09, §§ 71-74, 27 January 2015).", "III. RELEVANT INTERNATIONAL MATERIAL", "47. The relevant international material concerning the situation of Roma in Romania is described in Boacă and Others v. Romania (no. 40355/11, §§ 35- 40, 12 January 2016).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3 AND 14 OF THE CONVENTION", "48. The applicants complained, under Articles 3, 6 and 14 of the Convention, that police officers had ill-treated them during a raid on 15 December 2011 and that the investigation into those events had not been effective. They further complained that the authorities had used stereotypical arguments to justify the police intervention, which had been accepted by the courts.", "49. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, ECHR 2018), the Court considers that the applicant ’ s complaints should be examined only from the standpoint of Articles 3 and 14 of the Convention, which read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "51. The applicants contended that the evidence in the file, namely medical reports and witness statements, contradicted the Government ’ s version of facts (see paragraphs 11-16 above). They further argued that the domestic courts had ignored the conclusions of the forensic reports, as well as the witness statements, and had turned a blind eye to the racist overtones of the abuse and to the abuse itself. There was no evidence that the applicants had been violent or provocative during the incidents, and remarks to that effect by the police were mere excuses to cover up their own abusive and violent conduct against the applicants. There was also no evidence to sustain the Government ’ s position that the injuries had been self-inflicted. They lastly pointed out that the allegations that they had attempted to intimidate the police officers were unfounded. They reiterated that when the incident had occurred they had been aged 62, 17, 55 and 26 and had been unarmed; they had been tackled by eighty-three law - enforcement officers, all of whom had been carrying lethal weapons.", "52. The applicants further contended that the investigation had been neither independent nor effective. They pointed out that the police investigators had been part of the same police unit as the police officers accused of ill- treatment, and that therefore an institutional and hierarchical relationship existed between them. They relied on Anton v. Romania ( no. 57365/12, 19 May 2015 ). They reiterated that the Commissioner for Human Rights had urged the Romanian authorities to set up an independent and effective mechanism for investigating complaints against the police.", "53. The applicants further claimed that the investigation had failed to examine the necessity and proportionality of the use of force. Moreover, the conclusion of the investigation had been based solely on the statements by the police officers, thus failing to reconcile the conflicting versions presented by the parties involved. The applicants concluded that the investigation had been conducted in a superficial and subjective manner.", "54. The applicants complained that the prosecutor had justified the proportionality of the police intervention by using stereotypical arguments concerning what was perceived to be the attitude of Roma in general and by referring to other unrelated incidents involving members of the Roma community.", "55. The applicants maintained that the Roma communities faced an institutional racist bias, manifested throughout police policies and procedures aimed at their communities. They argued that the police intervention plan of 15 December 2011 had clearly shown that the raid had been intended against the Roma community, which had been portrayed as a criminal community. The very essence of the police intervention had been, in their view, racist. Moreover, they averred that the statistical data provided in the intervention plan did not coincide with the figures available from the official census. In their view, this proved that the police had conducted their own census of the Vâlcele population and collected data on criminality based on the ethnic appurtenance of the suspects. Therefore the police portrayed the whole Roma community as being a criminal community and made generalisations which were incompatible with the requirements of Article 14 of the Convention.", "56. The applicants denied the so - called “Roma behaviour” allegedly exhibited by the second and fourth applicants, which the authorities had used to justify the injuries suffered by those applicants (see paragraphs 37 and 40 above).", "57. Lastly, the applicants argued that the prosecutor had failed to react to the evidence that the police action had been planned and justified in a purely racist manner.", "(b) The Government", "58. The Government accepted that the applicants had suffered physical harm at the hands of the police, but argued that the injuries had not reached a level of severity sufficient to bring them within the scope of Article 3 of the Convention. Moreover, they pointed out that the use of force had been justified and appropriate in the circumstances of the case, bearing in mind the breadth of the criminal activity in the area where the police intervention had occurred, and the applicants ’ provocative conduct. They considered that there was no reason for the Court to depart from the assessment made by the domestic courts in this respect.", "59. The Government further pointed out that the police officers had not used firearms and that the police operation had been set up in order to tackle issues in the whole neighbourhood, so it had not been directly aimed at the applicants ’ family. Lastly, they reiterated that the State had a monopoly on the use of lawful violence and that anomy and disrespectful conduct towards the law -enforcement authorities should not be tolerated.", "60. The Government noted that the prosecutor had initiated a very complex inquiry into the conduct of the police officers and that the decisions taken had been based on a significant amount of evidence, including statements from the applicants and from all the police officers involved, witness statements, medical reports and material evidence gathered at the scene of the incident. The decisions that the use of force had been legitimate had been supported by compelling evidence. The Government stressed that the Court ’ s assessment must remain subsidiary to that of the domestic authorities.", "61. The Government contended that the applicants had failed to substantiate in any manner the allegations of racial motives behind the police officers ’ actions. They further argued that the expression of concern by the Council of Europe ’ s Advisory Committee on the Framework Convention for the Protection of National Minorities about allegations of violence against Roma by Romanian law - enforcement officers and the repeated failure of the Romanian authorities to remedy the situation and provide redress for discrimination did not suffice to consider it established that racist attitudes had played a role in the current case. They contended that the police raid had been linked not to the applicants ’ ethnicity but rather to the need to curb the criminality in the area.", "62. The authorities ’ conduct had not been provocative, but strictly defensive. The Government pointed out that the forest ranger had shown no bias against the Roma community, which he had commended for being peaceful and hardworking ( see paragraph 11 above). As for the expression in the prosecutor ’ s decision of 5 August 2013, they argued that it was no more than a description taken from the police report ( see paragraphs 37 and 40 above), and was merely a case of linguistic negligence. The details given in the police reports were a sign of thoroughness in the preparation of their mission, rather than of bias against the applicants ’ ethnicity.", "(c) The third party", "63. The ERRC referred to various international reports and surveys (by the OSCE, Amnesty International, European Union Fundamental Rights Agency – “the FRA”) concerning the increase, in recent years, of anti-Gypsy attitudes in Europe, evidenced in part by an increase in violence against Roma and by violent police raids apparently motivated by stereotypical views on Roma criminality. Various international bodies had shown their concern about reports of racial stereotyping and racist hate crimes against Roma in Romania: the UN Committee on the Elimination of Racial Discrimination (“the CERD”), the UN Committee against Torture, and the Council of Europe ’ s European Commission against Racism and Intolerance (“ECRI”). In addition, surveys conducted between 2005 and 2015 by the National Council for Combating Discrimination and the National Institute for the Study of the Holocaust in Romania had indicated that between 41% and 68% of respondents would prefer not to have a Roma work colleague, neighbour, friend or family member; 21% considered Roma to be a threat; 61% thought that Roma were a source of shame for Romania; and 52% said that Roma should not be allowed to travel outside the country.", "64. The ERRC further pointed out that, according to research done by the FRA and the UN Special Rapporteur on extreme poverty, Phillip Alston, Romania did not keep any record of racially-motivated crimes, lacking a comprehensive data-collection system. In the ERRC ’ s view, the Romanian authorities ’ failure to compile data on racially motivated crimes was a symptom of institutional racism, which also undermined the ability to identify patterns of racist violence (they relied in this respect on Milanović v. Serbia, no. 44614/07, § 89, 14 December 2010). They pointed out that, according to information gathered from the mass media, the applicants ’ village belonged to an area with a significant Roma population and with a recent history of serious violence perpetrated against Roma, such as allegations of repeated police abuse, ethnic tensions, and alleged lynching.", "65. The ERRC urged the Court to pay particular attention to (1) the lack of appropriate institutional arrangements for protecting Roma (such as lack of training or appropriate records and data); and (2) the evidence of negative stereotypes in respect of the behaviour of Roma or the credibility of complaints brought by Roma. They argued that the racial stereotyping of Roma was likely to corrupt the assessment of the facts by the domestic authorities, particularly in the context of widespread anti-Roma sentiment. They contended that the police might be motivated by stereotypical views of “Roma criminality” in their choice of investigative priorities and by notions of “Roma violence” in choosing the means to intervene in a Roma neighbourhood, just as those stereotypes could affect the opinion of a judge reviewing a complaint concerning police intervention.", "66. Lastly, the ERRC submitted that vulnerable victims – such as Roma – alleging racially motivated violence were unlikely to be able to prove beyond reasonable doubt that they had been subjected to discrimination, especially when they were also victims of a failure on the part of the domestic authorities to carry out an effective investigation. They asserted that the authorities ’ failure to implement appropriate legal measures and policies disclosed the existence of institutional racism.", "2. The Court ’ s assessment", "(a) General principles", "67. The Court refers to the general principles set out in its case-law concerning the prohibition of ill-treatment and the requirement of an effective investigation into such allegations, as enshrined in Article 3 of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114 - 23, ECHR 2015; Boacă and Others v. Romania, no. 40355/11, §§ 66 - 67, 74-75 and 81-84, 12 January 2016; and Samachișă v. Romania, no. 57467/10, §§ 59-64, 16 July 2015).", "68. The Court makes further reference to the principles it established under Article 14 of the Convention taken together with Article 3. In particular, it reiterates that a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 196, ECHR 2007 ‑ IV). Moreover, when investigating violent incidents, State authorities have an additional duty to take all reasonable steps to unmask any racist motives and to establish whether or not ethnic hatred or prejudice may have played a role in the events (see Ciorcan and Others v. Romania, nos. 29414/09 and 44841/09, §§ 156-59, 27 January 2015).", "(b) Application of those principles to the present case", "(i) Alleged ill-treatment", "69. The Court notes that on the morning of 15 December 2011 the applicants received a visit from eighty-five armed law-enforcement officers (see paragraphs 6, 14 and 16 above). The applicants were unarmed and were not sought by the police for any violent crimes (see, mutatis mutandis, Petruş Iacob v. Romania, no. 13524/05, § 36, 4 December 2012). In the aftermath of that intervention, they were left with injuries that needed medical care. The Court considers that in the circumstances of the case, the injuries alleged by the victims, as established in the forensic medical reports described in paragraphs 18-21 above, attained the minimum level of severity required by Article 3 of the Convention (see, mutatis mutandis, Boacă and Others v. Romania [Committee], no. 40374/11, § 51, 17 January 2017).", "70. The Court notes that in their submissions the Government argued that the use of force had been necessary and proportionate and that the applicants had been provocative and disrespectful towards the law - enforcement authorities (see paragraphs 58 and 59 above). However, no action, be it criminal, administrative or civil, was taken against the applicants for alleged abusive behaviour. Moreover, it is to be noted that the applicants were faced with highly-trained officers specialised in rapid intervention, in a relatively confined space (their home). Nothing suggests that the four gendarmes who had immobilised the applicants and who were part of a police force of eighty-five officers present at the scene were overwhelmed by the applicants.", "71. As to the authorities ’ hypothesis that the injuries suffered by the second and fourth applicants had been self-inflicted (see paragraphs 37 and 40 above), the Court notes that, other than the statements of the police officers present on the scene, there is no evidence to corroborate it (see, mutatis mutandis, Bouyid, cited above, § 97).", "72. In the light of the above findings, the Court considers that neither the domestic courts nor the Government have convincingly shown that, in the particular circumstances of the present case, the force employed by the law- enforcement officers during the events of 15 December 2011 was proportionate (see, mutatis mutandis, Boacă [Committee], cited above, § 55).", "73. Accordingly, there has been a breach of Article 3 of the Convention under its substantive limb.", "(ii) Alleged racial motives for the organisation of the police raid", "74. As for the allegations of discrimination, the Court must establish whether or not racial prejudice was a causal factor behind the police intervention (see, mutatis mutandis, Ciorcan, cited above, § 160).", "75. In this connection, the Court notes that in the police intervention plan, drafted prior to the police raid of 15 December 2011, the authorities identified the ethnic composition of the targeted community and referred to the alleged anti-social behaviour of ethnic Roma and the alleged high criminality among Roma (see paragraph 13 above). The same assertions were made by the investigators, who explained the applicants ’ alleged aggressiveness by their ethnic traits or by habits “specific to Roma” (see paragraph 37 above). The prosecutor also considered that the police raid had been rendered necessary by the problems experienced with the Roma community and their criminal behaviour (see paragraph 39 above). The Court observes that the authorities extended to the whole community the criminal behaviour of a few of their members on the sole ground of their common ethnic origin (see paragraph 40 above).", "76. Turning to the facts of the current case, the Court considers that the manner in which the authorities justified and executed the police raid shows that the police had exercised their powers in a discriminatory manner, expecting the applicants to be criminals because of their ethnic origin. The applicants ’ own behaviour was extrapolated from a stereotypical perception that the authorities had of the Roma community as a whole. The Court considers that the applicants were targeted because they were Roma and because the authorities perceived the Roma community as anti-social and criminal. This conclusion, also supported by the general reports of racial stereotyping of Roma presented by the third party (see paragraph 63 above), goes beyond a simple expression of concern about ethnic discrimination in Romania (see paragraph 61 above and, conversely, Ciorcan, cited above, § 160 ). It shows concretely that the decisions to organise the police raid and to use force against the applicants were made on considerations based on the applicants ’ ethnic origin. The authorities automatically connected ethnicity to criminal behaviour, thus their ethnic profiling of the applicants was discriminatory.", "77. Reiterating its findings that the police response was disproportionate to the applicants ’ behaviour (see paragraph 72 above), the Court considers that in the case at hand, the Government failed to prove that considerations other than the applicants ’ ethnicity played an important role in the manner in which the police raid of 15 December 2011 had been organised and carried out.", "78. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 of the Convention under its substantive limb.", "(iii) Alleged lack of an effective investigation", "79. The Court observes that the applicants complained to the authorities about what they perceived to be frequent and unwarranted acts of violence by police officers against the Roma community (see paragraphs 29, 31, 41 and 43 above). Nonetheless, the authorities accepted as justification for the use of force an assessment made by the police in which negative inference seemed to have been drawn from the ethnic composition of the community (see paragraphs 13 and 39 above). In accepting that justification, the domestic courts did not censure what seems to be a discriminatory use of ethnic profiling by the authorities. Moreover, the authorities fell back on references to cases in which members of the Roma community had been violent towards law - enforcement officials, without explaining how those examples were of any relevance to the case in issue, in so far as they bore no resemblance to the applicants ’ situation and had no direct link to the present case.", "80. In the Court ’ s view, in situations where there is evidence of patterns of violence and intolerance against an ethnic minority, the positive obligations incumbent on member States require a higher standard of response to alleged bias-motivated incidents (see the case-law quoted in paragraph 68 above). The Court is mindful of the evidence produced by the parties and the available material which show that, in the respondent State, the Roma communities are often confronted with institutionalised racism and are prone to excessive use of force by the law- enforcement authorities (see the references in paragraph 47 above). In this context, the mere fact that in the present case stereotypes about “Roma behaviour” feature in the authorities ’ assessment of the situation (see paragraph 37 and 40 above), may give rise to suspicions of discrimination based on ethnic grounds. Such suspicions, coupled with the modalities of the intervention of 15 December 2011, should have prompted the authorities to take all possible steps to investigate whether or not discrimination may have played a role in the events. However, the applicants ’ allegations of discrimination against and criminalization of the Roma community have been dismissed by the domestic authorities and courts without any in-depth analysis of all the relevant circumstances of the case (see paragraphs 30 and 45 above).", "81. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 3 of the Convention in its procedural aspect.", "82. Lastly, the Court notes that the applicants complained under the procedural limb of Article 3, that the criminal investigation had been ineffective (see paragraph 48 above). In particular, they argued that the investigation had been conducted in a superficial and subjective manner (see paragraph 53 above). Therefore this complaint is related to the one already examined under Article 14 of the Convention taken in conjunction with Article 3. Having found a violation of Articles 3 and 14 together (see paragraph 81 above), the Court considers that no separate issue arises under Article 3 of the Convention (see, mutatis mutandis, Hirst v. the United Kingdom (no. 2), no. 74025/01, § 87, 6 October 2005).", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "83. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "84. The applicants claimed the following amounts in respect of non ‑ pecuniary damage :", "(a) 25,000 euros (EUR) each for the first, second and fourth applicants; and", "(b) EUR 30,000 for the third applicant.", "They also asked that the State adopt a plan of measures of general interest aimed at preventing similar cases from arising in the future.", "85. The Government argued that the claim was excessive and made reference to the awards granted by the Court in similar cases.", "86. Having regard to all the circumstances of the present case, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards each applicant EUR 11,700 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.", "B. Costs and expenses", "87. The applicants also claimed EUR 2,251 for the costs and expenses incurred before the domestic courts and before the Court, to be paid directly into the bank account of Romano CRISS.", "88. The Government contested the reality and the necessity of those costs.", "89. Regard being had to the documents in its possession and to its case- law, the Court considers it reasonable to award the sum of EUR 2,251 covering costs under all heads, to be paid directly into the bank account of Romano CRISS (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288 and point 12 (a) of the operative part, ECHR 2016 (extracts)).", "C. Default interest", "90. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants are a married couple of Roma origin. They were born in 1986 and live in Hurbanovo.", "A. Events of 16 June 2012", "6. On 16 June 2012, around 9 a.m., Mr J., a municipal police officer who was off duty that day, took an illegally purchased gun with two full magazines and some extra ammunition and drove in his private car to the town of Hurbanovo, where around a thousand Roma people live.", "7. Around 10 a.m. he stopped in front of the applicants’ family house, entered the property and, without saying a word, started firing bullets at the family members who happened to be in the yard. He stopped shooting when the cartridge of the gun was empty. Three members of the applicants’ family, namely the second applicant’s father, brother, and brother-in-law, were shot dead. The first applicant was seriously injured in the hips and thighs and the second applicant in the liver, lower appendix, stomach, and elbow.", "8. After the shooting, Mr J. returned to the car. On his way, he met two other Roma men, members of the applicants’ family, and threatened to kill them. Then he got into his car and drove away. Eventually, he arrived at the house of the mayor of Hurbanovo, in front of which he was arrested.", "B. Criminal proceedings", "1. Pre-trial stage", "9. Mr J. was charged on 17 June 2012 with premeditated first-degree murder, partly accomplished and partly attempted ( zločin úkladnej vraždy, sčasti dokonaný a sčasti v štádiu pokusu ), in connection with the offences of prohibited acquisition and possession of a firearm and forcible entry into a dwelling.", "(a) Questioning of Mr J.", "10. During his pre-trial questioning on 16 and 17 June and 12 July 2012 Mr J. provided several statements concerning his recollection of the above events, confessed to the charges on all counts, and expressed remorse.", "11. His first statement of 16 June 2012 reads as follows:", "“... I woke up at around 8.30-9.00 a.m. and I don’t know what came into my mind but I told myself that I must do something with those Roma people, it was nothing specific ... I put on my boiler suit and slippers, took a gun – a pistol which I had in my wardrobe ... this morning I loaded the gun, ... got into my car and went to deal with everything, including the Roma ... Afterwards, I wanted to shoot myself; somehow it weighed heavily [on my mind] ... I went down to Hurbanovo, where I arrived at around 9.20 a.m. ... I went across the city of Hurbanovo and I came to the houses at the end of the city, where Roma live. I slowed down nearby one house [and] looked into the yard, but there was only one girl, so I drove further to another house. ... By the next house ... I saw a gate opened and Roma in the yard, I pulled up, got out of the car and entered the yard ... I had the gun already in my hand as I was getting out of the car ... they were sitting and I started to fire shots at them ... I wanted to kill them. ...”", "The investigator further asked why Mr J. had entered that particular yard and started shooting. Mr J. answered:", "“... I did not care which yard I entered, if there had been more Roma in that first yard where only one girl had been, I would have entered there and opened fire in that first yard.”", "12. During a second interview on 17 June 2012, Mr J. stated, inter alia, that he was not able to explain the reasons for his actions, that he did not remember most of the events, and that he had wanted to commit suicide shortly after the shooting. He had just fired at some people – not at a specific person – and could not remember how many times he had fired. He also declared that he did not know the applicants’ family personally, only by sight, having had dealings with them as a municipal police officer. He had often gone to Hurbanovo to deal with problems of public order and remembered meeting some members of the applicants’ family – in particular, the late brother of the second applicant, since he had once slapped him because of his aggressive behaviour after he had been caught stealing.", "In particular, his statement reads as follows:", "“The investigator: What brought you to the decision to go and shoot at those people?", "Mr J.: This I don’t know ... maybe because I have been working as a policeman for twenty years and there were always problems with Roma, but I have never been aggressive towards them.", "...", "Investigator: Why did you enter that particular yard and start shooting?", "Mr J.: Because there were people; if there had been people in the first yard, I would have maybe gone in there.", "The investigator: Did you care about the nationality, age, ethnicity of those people in the yard?", "Mr J.: I did not think about that. ...”", "13. At a third interview conducted on 12 July 2012, Mr J. confirmed his previous statements and further stated:", "“... these thoughts that I had about dealing with the Roma in Hurbanovo – that is to say to do something with them – had been crossing my mind. When I was loading the gun with bullets I might have been thinking also about a radical solution, as eventually happened ... I had been thinking about my work, how to resolve the public ‑ order issue in the town. I felt that I had been dealing with this for a long time without any success, that there had been some kind of a failure or ineffectiveness ... I could have been nervous because of all this; I could have been tense and all this resulted in my actions.”", "(b) Statements of witnesses", "14. On 16 June 2012 several witnesses were interviewed, including the applicants’ relatives. In general, they did not know of any particular racially motivated behaviour on the part of Mr J. against Roma. However, one of the witnesses, Mr D.L., stated that Mr J. was harsher on Roma than on other people. Other witnesses – including Mr J’s daughters, the mayor of Hurbanovo and Mr J.’s direct supervisor – stated that he had not shown any anti-Roma sentiment.", "15. The police conducted further interviews on 19 June and 20 June 2012. The witnesses, including colleagues of Mr J., stated that he had not expressed any anti-Roma opinions or comments.", "16. On 3 July 2012 the police interviewed other witnesses; they also again interviewed Mr D.L., who stated that approximately a week or two before the incident Mr J. had had a conflict with his nephew, M. who had been shot dead during the attack. M. had been caught stealing in a scrap yard with two other Roma boys. Mr J. had allegedly tried to kick one of them, slapped M. and told them that they were lucky that it was not him who had caught them.", "(c) Expert opinion", "17. On 16 July 2012 the investigator requested expert examinations of Mr J. by two experts in psychiatry and one expert in clinical psychology. They drafted a joint expert opinion.", "18. The experts were asked questions, inter alia, about Mr J.’s mental state and possible illness or disorder, his ability to recognise the lawfulness of his actions, his ability to control his own behaviour, a possible motive for his actions from a psychological point of view, his ability to fully comprehend the course of events, and his credibility.", "19. The report concluded that Mr J. did not remember clearly what had happened. However, he was able to credibly reconstruct some events and acknowledge that he had fired at someone. During the examination, he had also mentioned some incidents that he and his colleagues had experienced involving people of Roma origin, his worries, his fear of them, and his despair at his inability to deal with them. In particular, he had also stated:", "“This family has paid for all of them ...”", "20. The report further concluded that Mr J. had been suffering mounting emotional tension for a long time, which had been released by “the escalation effect” and had possibly been affected by the alcohol he had consumed the night before. He was suffering from a temporary mental disorder, known as “abnormal short-term reaction failure with the clinical result of the escalation effect” ( abnormná skratová reakcia s klinickým priebehom vystupňovaného afektu ), which had resulted in his becoming of unsound mind at the critical moment. Therefore, while he had been committing the crime in question he had had a significantly reduced ability to recognise the unlawfulness of his actions and to control them.", "21. Furthermore, the clinical psychologist concluded that Mr J. was not suffering from any mental illness such as psychosis, or from any dependency. Rather, he had been developing a paranoid personality connected to an intense fear of the aggressive behaviour of some “Roma fellow citizens” towards him or people close to him. This had triggered a perceived need to protect himself, born of paranoia. The psychologist considered that Mr J. had:", "“... the paradoxically altruistic motive of [finding] a radical solution to public order issues in the town, in particular towards that part of it which contained the non ‑ adaptable and problematic Roma people. [Mr J.’s] ambition to personally deal with the public order issues in the town, in particular as regards the Roma minority, is evidently overdesigned [ predimenzovaná ] [and] is beyond the actual capabilities of one person ... it can be stated that [Mr J.] had been developing burnout syndrome as another of the possible motivating factors.”", "22. In his conclusion, the psychologist found that an important motive determining his behaviour before and during the crime could have been his continual frustration about his own work and the fact that he had been unable to resolve the public-order issues in the town – in particular, the problems concerning the Roma part of the population. He had been developing burnout syndrome as well. However, the immediate motive for his behaviour at the critical moment was unclear.", "23. On 23 November 2012 the investigator interviewed the psychologist, who further confirmed that Mr J.’s aggression had manifested itself shortly before the attack against the Roma boys who had been caught stealing and that this aggression had been internally intensified by a growing feeling of helplessness and fear of danger from the Roma. Furthermore, the expert noted that Mr J. had believed that he could solve the “Roma question” and that his action was in the interest of society. He also stated that:", "“... the anger, rage and hatred of the accused concerned those from the Roma ethnic minority, who had been repeatedly subject to his interventions ...”", "24. The expert concluded that he could not confirm unequivocally a racial motive.", "(d) The indictment", "25. On 11 December 2012 the special prosecutor filed a bill of indictment with the Specialised Criminal Court ( Špecializovaný trestný súd ) (hereinafter “the SCC”), charging Mr J. with (i) premeditated first-degree murder under Article 144 § 1 and § 2 (c) of the Criminal Code, with reference to Article 138 (j) of the Criminal Code, partly accomplished and partly attempted ( zločin úkladnej vraždy, sčasti dokonaný a sčasti v štádiu pokusu ), and (ii) the offence of carrying a concealed weapon under Article 294 § 1 and § 2 of the Criminal Code, in concurrence with the offence of illegal entry into a dwelling under Article 194 § 1 and § 2 (a) of the Criminal Code, with reference to Article 138 (a) of the Criminal Code.", "26. The special prosecutor referred to, inter alia, the testimony of Mr J., of the applicants, and of other witnesses, as well as the expert reports and the statements given by the experts when they had been interviewed, including the psychologist’s statements concerning the earlier violent confrontation between Mr J. and Roma children, and Mr J’s growing feelings of helplessness, his fear of the Roma, and his belief that in acting as he had he had believed that he was solving an issue with the Roma.", "27. As regards the legal classification of the offence of murder, the bill of indictment reads, in the relevant part, as follows:", "“it is necessary to classify ... the action of the accused, as far as it concerns the shooting [and killing] of the five members of the Lakatoš family ... as ... the offence of first-degree murder within the meaning of Article 144 §§ 1 and 2 (c) of the Criminal Code ... In the present case, there was no accidental behaviour (murdering) caused by the arising of a situation (for example, an argument or ... outburst at the place in question); rather, the murder was premeditated (that is to say a motive had been considered in advance). ... [T]he term “in advance” is not confined to a particular time and ... the motive could have been formed ... over years, months, hours, or several minutes ... In the case of the accused, he had committed himself to the decision to kill ... when he ... decided to drag out a weapon from its hiding place ... and left the house. ... [M]oreover, the experts also identified a longer and continuing internal feeling of dissatisfaction with the state of affairs ... which resulted exactly in the decision to go and shoot with an intention to kill and which had also manifested itself for several moments externally; for example, by the earlier obtaining of an illegal weapon.”", "The special prosecutor furthermore argued that the intention to kill was obvious from the manner in which the accused had acted. The special prosecutor identified one aggravating factor in the offence under Article 144 § 2 (c) of the Criminal Code – namely, that Mr J.’s attack had been directed simultaneously against five persons. The ethnicities of the victims or racial motives were not mentioned and addressed.", "2. Hearing", "28. Between 25 and 28 March 2013 a public hearing took place, during which Mr J. gave no evidence, stated that he did not deny the charges, and responded affirmatively to the presiding judge’s questions as to whether he understood the facts of the crime, whether his defence rights had been properly granted, whether he comprehended the legal status of the offence, whether he had been informed of the penalties under the law for the criminal offences in question, and whether he had confessed to the crime voluntarily.", "29. The applicants, together with six other members of the family, joined the criminal proceedings as civil parties. Their lawyer claimed compensation for damage on their behalf.", "30. On 26 March 2013 two of the experts testified and referred to the conclusions of their report. To the applicants’ representative’s questions, the expert in psychiatry stated that it was not within their remit to assess the issue of racism. Later, the representative also attempted to question the clinical psychologist regarding Mr J.’s aggression towards Roma. However, since a civil party could raise only issues concerning a claim for damages (see paragraph 53 below), the court did not allow him to ask those questions. In his final remarks, the applicants’ representative expressed doubts about the objectivity and accuracy of the expert opinion, and in relation to the Mr J.’s motive stated that:", "“... the assessment of the motivational foreground is, in my opinion, inadequate. The experts ... underestimated or misjudged the racial motive of the offender’s actions.”", "The applicants’ representative proposed that a second expert opinion be ordered. This was rejected by the court. The court reasoned that the issue of the accused’s motive for the purposes of the claim for damages was of a legal nature and could thus not be assessed by such experts.", "3. Judgment and following proceedings", "31. On 27 March 2013 the SCC delivered a simplified version of the judgment. Owing to the fact that Mr J., his lawyer, and the prosecutor had all waived their right to appeal, the judgment contained only a brief description of the criminal act in question and the sentencing part, pursuant to Article 172 § 2 of the Code of Criminal Procedure. The judgment did not contain any legal reasoning.", "32. The SCC found Mr J. guilty of a serious criminal offence as charged, killing three people and injuring two. The court established that:", "“[The accused] ... after he woke up at around 9 a.m. ... with a view to definitively resolving the problem with the unintegrated [ neprispôsobiví ] citizens of Hurbanovo by causing their deaths, took a weapon [and] loaded it with two full magazines; in addition ... he took twelve pieces of single 7.62 x 25 mm ammunition and ... drove himself to the front of the family house ... in Hurbanovo, where at around 10.10 a.m. he left the vehicle, unlawfully entered the yard ... and without a word ... aimed and shot eight times at persons at the yard ...”", "33. Mr J. was sentenced to nine years’ imprisonment. The sentence was exceptionally reduced owing to Mr J.’s diminished soundness of mind, pursuant to Article 39 § 2 (c) of the Criminal Code. His gun was forfeited and protective psychological treatment in an institution was ordered for him, together with protective supervision amounting to three years.", "34. The applicants’ claim for damages was referred to the civil courts.", "35. As can be seen from the file, on 19 April 2013 two appeals were lodged. The first appeal was lodged by Ms I.L. She argued, inter alia, that the court had failed to consider the possibility of a racial motive. The second appeal was lodged (through their representative) by all members of the family, including the applicants and Ms I.L. In their appeal, they cited procedural errors, including the lack of any reasoning for the impugned judgment.", "36. On 18 September 2013 the applicants’ appeal was dismissed by the Supreme Court ( Najvyšší súd ). It concluded that the applicants, as civil parties, did not have the right to challenge the judgment in respect of the guilt of and sentence imposed on Mr J. and that their appeal could only have been directed against the ruling on compensation for damage. However, since the applicants had been referred to civil courts to claim such compensation, and having regard to the fact that those proceedings were ongoing at the material time, the Supreme Court considered their appeal premature in this part.", "37. On 26 June 2013 and 4 March 2014 the applicants, together with other injured parties, sought leave from the Minister of Justice to lodge an extraordinary appeal on points of law. Such leave was refused by the Minister of Justice on 17 September 2013 and 3 April 2014, respectively.", "C. Constitutional proceedings", "38. On 24 May 2013 the applicants lodged a constitutional complaint ( ústavná sťažnosť ) against the judgment delivered by the SCC. They alleged a violation of Articles 2, 6, 8, 13 and 14 of the Convention and the corresponding provisions under the Constitution. In sum, they claimed that the SCC had erroneously concluded that Mr J. had had diminished soundness of mind at the time that the crime had been committed, and that as a consequence the SCC had imposed an inappropriately low sentence, which could not serve to discourage the future occurrence of the behaviour in question.", "39. They furthermore complained of the ineffectiveness of the criminal prosecution owing to the questionable quality of the expert report and the alleged bias of its authors, the court’s refusal to order a second expert opinion, the fact that it had been impossible for their lawyer to ask questions and cross-examine the expert witnesses, the absence of any reasoning in the final judgment, and the lack of any assessment of the racial overtones of the crime. They also alleged a lack of reasoning in the SCC’s judgment and that they had had no opportunity to challenge the conviction in their position as civil parties in the criminal proceedings, apart from the part concerning compensation for damage.", "40. On 27 May 2015 the Constitutional Court ( Ústavný súd ) dismissed the applicants’ complaint. It held that the impugned judgment had been delivered in accordance with the Code of Criminal Procedure. It furthermore held that even if it had found the lack of reasoning incorrect it could not have found any violation of the applicants’ constitutional rights on the basis of that conclusion. The court noted that:", "“... the sole fact that the impugned judgment ... is not reasoned complicates the assessment of its constitutionality. The Constitutional Court can assess other applicants’ complaints only generally on the basis of other documents from the [respective] case file (in particular, the expert opinion and minutes from the main hearing).”", "41. In so far as the applicants complained of the failure of the criminal justice authorities to address the racial motive of the attack, as well as their inability to challenge the conviction and the sentence, the Constitutional Court considered that these complaints were directed against provisions of the Code of Criminal Procedure and the position of an injured party under Slovak criminal law. However, the court observed that the applicants could not challenge the compatibility of the law with the Constitution and the Constitutional Court had no competence to address their grievances.", "42. In addition, the court scrutinised the adequacy of the sentence and summarised that the accused had been diagnosed with diminished soundness of mind at the time of the commission of the crime. This was the conclusion reached by a lawfully obtained expert report, which had also examined the motive of the accused and provided a comprehensive explanation in that regard. The criminal court had had discretion to impose such a reduced sentence, as long as it was done in accordance with the law. As to the applicants’ complaint about the lack of a decision on their claim for damages in the criminal proceedings and the lack of any reasoning given by the court in respect of their claim for damages, the Constitutional Court referred to the Supreme Court’s reasoning and rejected this part of the complaint.", "D. Other relevant proceedings", "43. On 10 October 2012 the family of the applicants’ late relatives lodged a civil claim for damages with the Komárno District Court ( okresný súd ). After the SCC referred the applicants to the civil courts with their claim for damages, on 30 May 2013 they requested to be allowed to join the pending proceedings.", "44. By a decision of 22 October 2013, the District Court dismissed the applicants’ request. Following an appeal by the applicants, the Nitra Regional Court ( krajský súd ) quashed that decision on 31 January 2014 and allowed the applicants to join the pending proceedings in respect of damages.", "45. On 22 November 2016, at the hearing before the District Court, the applicants withdrew their claims and the court discontinued the proceedings.", "46. On 18 June 2013 the Ministry of Justice awarded the first applicant the sum of 2,358 euros (EUR) and the second applicant EUR 7,545.60, in accordance with Act no. 215/2006 Coll. on compensation for victims of violent crimes. Furthermore, the second applicant received EUR 4,090 in respect of his father’s death.", "47. On 9 March 2015 the District Prosecutor’s Office dismissed a criminal complaint lodged by the applicants against Mr J., which was based on the suspicion that he had committed a criminal offence by disposing of property in order to defraud creditors ( poškodzovanie veriteľa ) by transferring the title to his house to his daughter and giving EUR 5,000 to his wife as a gift." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Criminal Code (Law no. 300/2005 Coll., as in force at the material time)", "48. Article 144 § 1 provided that any person who premeditatedly and intentionally killed another person would be liable to a term of imprisonment of between twenty and twenty-five years. Under Article 144 § 2 (c), if a person committed such a crime acting in a more serious manner ( závažnejším spôsobom konania ), or under Article 144 § 2 (e) with a specific motive ( z osobitného motívu ), he or she would be subject to a term of imprisonment of twenty-five years or life imprisonment.", "49. Under Article 138 (j), “a more serious manner” referred to an offence that was committed against several people.", "50. A “specific motive” for the commission of a crime was defined in Article 140. Under Article 140 (f) a specific motive was defined as the commission of a crime on the grounds of national, ethnic and racial hatred, or hatred based on skin colour.", "51. Under Article 194, any person who, without lawful authority, entered the dwelling of another or remained there would be liable to a term of imprisonment of up to two years. The offender would be liable to a term of imprisonment of between one and five years if he committed the offence, inter alia, acting in a more serious manner (Article 194 § 2 (a)), or by reason of a specific motive (Article 194 § 2 (d)).", "52. Under Article 294, any person who, for himself or another person, manufactured, imported, exported, transited, transported, procured or possessed ammunition without a licence, or who mediated such activity, would be liable to a term of imprisonment of one to five years. If the action in question concerned a firearm, that person would be liable to a term of imprisonment of between three and eight years.", "B. Code of Criminal Procedure (Law no. 301/2005 Coll., as in force at the material time)", "53. Article 46 provided, inter alia, that a party aggrieved by a criminal offence could attach a third-party claim for damages to the criminal proceedings and request that the court convicting the person charged with a criminal offence order the latter to pay compensation for the damage caused to the aggrieved party by the offence. The aggrieved party furthermore had the right to adduce evidence and to comment on it, to inspect the case file, to take part in the hearing, and to make submissions. Furthermore, Article 271 allowed the aggrieved party to ask questions after the adducing of evidence; Article 272 § 1 stipulated that an aggrieved party (or his or her representative) was authorised to ask questions within the scope of his or her claim for damages after the prosecutor’s questioning was concluded.", "54. If a court convicted a person indicted for an offence ( obžalovaný ) by which damage had been caused, it generally ordered the defendant to pay the aggrieved party damages (Article 287), unless the evidence taken was not sufficient for making such a ruling, in which case the court referred the aggrieved party to lodge the claim in question with the civil courts (Article 288).", "55. Under Article 172 § 2 of the Code of Criminal Procedure a simplified version of a judgment (that is to say without any reasoning) could be delivered, provided that both the prosecutor and the accused waived their right to appeal after the pronouncement of such a judgment, or that they had done so within three days of the delivery of the judgment.", "56. Under Article 230 a prosecutor supervises criminal proceedings to ensure their lawfulness. The public prosecutor is especially entitled to give to an investigator binding instructions or quash his unlawful or unreasonable decisions and substitute them by own decisions.", "57. Article 237 provides, inter alia, that the criminal court can adjudicate the case only on the basis of a bill of indictment, submitted and represented by a public prosecutor.", "58. Article 307 stipulated the persons entitled to appeal against the judgment. In particular, it provided that the aggrieved party had the right to appeal only in so far as the appeal concerned rulings on compensation for damage.", "III. RELEVANT INTERNATIONAL MATERIALS", "59. The relevant standards concerning recognising hate crimes and hate crime indicators were summarised in Balázs v. Hungary, no. 15529/12, § 21, 20 October 2015.", "60. In its General Policy Recommendation No. 13, adopted on 24 June 2011, the European Commission against Racism and Intolerance (ECRI) reiterated that “anti-Gypsyism” was a specific form of racism ‑ a form of dehumanisation and institutional racism nurtured by historical discrimination – which was expressed, inter alia, by violence, hate speech, exploitation, stigmatisation and the most blatant kind of discrimination; stressed that anti-Gypsyism was an especially persistent, violent, recurrent and commonplace form of racism; and emphasised the need to combat this phenomenon at every level and by every means.", "61. On 19 June 2014, the ECRI issued a Report on Slovakia (CRI(2014)37)). It mentioned, inter alia, the case of the Hurbanovo shooting; paragraph 68 reads as follows:", "“NGOs reported nine violent criminal offences against Roma between 2009 and 2012. In other cases, Roma settlements were the target of vandalism that endangered the lives of the inhabitants. The worst incident so far, which received extensive biased media coverage justifying the killing, took place in June 2012 when three Roma were killed and two wounded by an off-duty municipal police officer in Hurbanovo.”", "62. The ECRI in its Report further reiterated its recommendation that:", "“... the Slovak authorities ensure effective investigations into allegations of racial discrimination or misconduct by the police and ensure as necessary that the perpetrators of these types of acts are adequately punished .”", "63. The UN Committee on the Elimination of Racial Discrimination adopted concluding observations in respect of Slovakia in 2013 (CERD/C/SVK/CO/9-10). In paragraph 6 of the concluding observations it dealt with the concern and recommendation regarding racially motivated violence and crimes, and stated as follows:", "“The Committee recommends that the State party take effective measures to prosecute hate crimes in an effective manner so as to discourage racist and extremist organizations. ...”", "64. Similarly, the UN Committee on the Elimination of Racial Discrimination, in its concluding observations in respect of Slovakia of 2018 (CERD/C/SVK/CO/11-12) expressed serious concerns about reports of verbal and physical attacks against ethnic minorities, including Roma, and recommended, inter alia, that:", "“... all racially motivated crimes, including verbal and physical attacks, are investigated, that perpetrators are prosecuted and punished, and that motives based on race or on skin colour, descent or national or ethnic origin are considered as an aggravating circumstance when imposing punishment for a crime.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14, READ IN CONJUNCTION WITH ARTICLE 2 OF THE CONVENTION", "65. The applicants complained that the Slovak authorities had failed in their obligation to conduct an effective investigation into the racial overtones of the crime committed against them. They furthermore challenged the lack of reasoning in the sentencing judgment, which had rendered it impossible to demonstrate any accountability for the racist motive for the crime. They relied on Articles 2 and 14 of the Convention, which read as follows:", "Article 2", "“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. Admissibility", "66. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicants", "67. The applicants maintained that the attack had resulted from the fact that they were of Roma origin and that the authorities had failed to comply with the Convention standards. They pointed out that the expert reports had indicated a racial motive and that there was evidence that Mr J. had been violent towards Roma and that he had assaulted one of the victims one week prior the massacre. They also submitted that their lawyer emphasised the need to unmask any racial motive at the main hearing of 26 March 2013.", "68. Moreover, the applicants emphasised a key failure on the part of the trial court to deliver a reasoned judgment because this had been the only way to unmask racial motivation, given that it had not been mentioned in the bill of indictment. They also argued that there was a climate of anti ‑ Gypsyism in Slovakia generally, and a climate of institutional anti ‑ Gypsyism among police in particular. In their opinion, the failure to conduct an effective investigation and trial capable of exposing and punishing racial motivation had not only impacted the applicants, but had exacerbated a situation in which Roma had reason to believe that they were targets of police violence and murder. Furthermore, the lack of reasoning in the trial court’s judgment, accompanied by the impossibility of lodging an appeal against the conviction, had also pre-empted the possibility of an effective constitutional review by the Constitutional Court.", "(b) The Government", "69. The Government submitted that the authorities had established the relevant facts of the case, including the potentially racist motive of the perpetrator, and had gathered evidence in this regard. The authorities, however, had arrived at the conclusion that the committed crime had not been racially motivated. Therefore, as a racial motive had not been proved, the delivery of a simplified judgment could not have affected the applicants’ rights.", "70. Furthermore, the Government admitted that the applicants’ representative had had reservations regarding the evidence heard during the trial; however, in their opinion, he did not make any allegation about a racial motive before the trial court or in the appeal. In fact, this had been raised for the first time only in the applicants’ constitutional complaint.", "71. The Government also stated that the applicants had had enough opportunities to participate in the proceedings, assert their rights, propose evidence and question the evidence. In particular, during the proceedings the applicants had had the opportunity to contest the conclusions of the experts, and their representative could have suggested in an earlier stage of the proceedings that an additional expert opinion be ordered.", "2. The Court’s assessment", "(a) General principles", "72. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005 ‑ VII), even where the presumed perpetrator of the attack is not a State agent (see Georgi Georgiev v. Bulgaria (dec.), no. 34137/03, 11 January 2011 with further references; Fedorchenko and Lozenko v. Ukraine, no. 387/03, § 64, 20 September 2012; and Balázs, cited above, § 51).", "73. In order to be “effective” in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007‑II). That is to say it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible, where those responsible are State agents, but also where they are private individuals (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II; Rantsev v. Cyprus and Russia, no. 25965/04, § 233, ECHR 2010 (extracts); and M. and M. v. Croatia, no. 10161/13, § 148, ECHR 2015 (extracts)). The obligation to conduct an effective investigation is an obligation which concerns the means to be employed, and not the results to be achieved (see Nachova and Others, cited above, § 160, and Mižigárová v. Slovakia, no. 74832/01, § 93, 14 December 2010), but the nature and degree of scrutiny satisfying the minimum threshold of effectiveness depends on the circumstances of the particular case, and it is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-110, ECHR 1999-IV, and Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000‑VI).", "74. Furthermore, at all events, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice (see McKerr v. the United Kingdom, no. 28883/95, § 115, ECHR 2001 ‑ III with further references), maintain public confidence in the authorities’ adherence to the rule of law, and prevent any appearance of collusion in or tolerance of unlawful acts (see, for example, Dimitrova and Others v. Bulgaria, no. 44862/04, 27 January 2011, § 77). The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Mižigárová, cited above, § 95).", "75. In relation to alleged racist attacks, the Court reiterates that according to its well-established practice, the State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts which are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see, for example, Nachova and Others, cited above, § 160, which concerned the shooting and killing of two Roma men by a military officer; Bekos and Koutropoulos v. Greece, no. 15250/02, § 70, ECHR 2005 ‑ XIII (extracts), which concerned the beating of two Roma men by police officers; Šečić v. Croatia, no. 40116/02, § 66, 31 May 2007, which concerned the beating of a Roma by a skinhead group; Fedorchenko and Lozenko, cited above, § 65, which concerned the death of the applicants’ relatives as the result of an arson attack; and Ciorcan and Others v. Romania, nos. 29414/09 and 44841/09, § 158, 27 January 2015, which concerned the shooting and injuring of a large number of Roma during a police raid).", "76. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute (see, for example, Šečić v. Croatia, no. 40116/02, § 66, 31 May 2007). However the authorities must do what is reasonable, given the circumstances of the case (see Fedorchenko and Lozenko, cited above, § 66), in particular to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially induced violence (see Bekos and Koutropoulos, cited above, § 69, and Balázs, cited above, § 52).", "77. The Court furthermore notes that the authorities’ duty to investigate the existence of a possible link between racist attitudes and an act of violence is an aspect of their procedural obligations arising under Article 2 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 of the Convention, taken in conjunction with Article 2 to secure the enjoyment of the right to life without discrimination. Owing to the interplay of the two provisions, the issues may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see Nachova and Others, cited above, § 161, and Balázs, cited above, § 54).", "78. In the present case, the Court considers that in view of the allegations made by the applicants to the effect that the ineffectiveness of the investigation stems precisely from the fact that the authorities insufficiently investigated the racist aspects of the acts of violence, the Court considers that the complaint should be considered from the angle of Article 14, read in conjunction with Article 2 of the Convention (see Nachova and Others, cited above, § 162, and Balázs, cited above, § 55).", "(b) Application of those principles to the present case", "79. The Court observes that under Article 144 § 2, in conjunction with Article 140 (f) of the Criminal Code, as in force at the material time, the intentional killing of other persons with premeditation for those persons’ connection with a particular group constituted a criminal offence punishable by twenty-five years or life imprisonment (see paragraph 48 above).", "80. In view of the above, the Court considers that the Slovak legal system provided, in principle, adequate legal mechanisms to afford an acceptable level of protection to the applicants in the circumstances. It must therefore examine whether the manner in which the criminal-law mechanisms were implemented was adequate (see Škorjanec v. Croatia, no. 25536/14, § 62, 28 March 2017), regard being had to the requirements of the Convention in this respect (see paragraphs 57-58 above).", "81. The Court notes that following the incident of 16 June 2012, the police immediately conducted a preliminary investigation, in the course of which the police interviewed Mr J., his relatives and colleagues, and the victims’ relatives. Mr J. confirmed that he had armed himself with a gun and driven to the applicants’ house with the intention of “dealing with” the Roma. He also confirmed that he had been thinking about a radical solution, that he had been looking for a yard containing more Roma people and that he had been acquainted with some members of the applicants’ family (see paragraphs 10-13 above).", "82. The victims’ relatives stated that they had not been aware of any disputes between the victims’ family and Mr J. However, one witness described a conflict between Mr J. and Roma boys who had been caught stealing. Mr J. allegedly slapped one member of the victims’ family a week or two before the incident (see paragraph 14-16 above). Other witnesses ‑ namely Mr J.’s relatives and colleagues – denied any previous prejudicial statements or biased behaviour on the part of Mr J. against Roma (see paragraph 15 above).", "83. The police furthermore requested an expert examination of Mr J.’s mental state, as well as a possible motive for his actions (see paragraph 18 above). The psychologist concluded that the immediate motive of Mr J.’s behaviour at the critical moment was unclear. Nevertheless, he confirmed that an important motive determining his actions before and during the crime could have been his continual frustration with his own work and that he had been unable to resolve the public order issues in the town – in particular, problems concerning the Roma (see paragraphs 19-21 above). Moreover, during his interview on 23 November 2012 (see paragraph 23 above) the expert expressly referred to the incident with Roma boys who had been caught stealing and Mr J.’s aggressive behaviour towards them. In his opinion, Mr J.’s aggression had been intensifying, as his feelings of helplessness and fear of danger from Roma had been growing. In the expert’s opinion, Mr J. had believed that he could solve what the expert called “the Roma question” (see paragraphs 23 above). However, the expert did not confirm unequivocally a racial motive for Mr J.’s attack (see paragraph 24 above).", "84. The Court has already found that any specific information capable of suggesting that there had been any racial motive would suffice to open an investigation into a possible causal link between alleged racist attitudes and a death (see Mižigárová, cited above, § 122). In particular, such an attitude can be present where any evidence of racist verbal abuse comes to light in an investigation (see Škorjanec, cited above, § 65, and Balázs, cited above, § 61), when the attackers belonged to a group which is by its nature governed by extremist and racist ideology (see Abdu v. Bulgaria, no. 26827/08, § 49, 11 March 2014, and Šečić, cited above, § 68), but also in cases of allegedly racially motivated violence when another alleged non ‑ racist motive was not supported by any information (see Fedorchenko and Lozenko, cited above, § 67) or when the complexity of facts was seen against the background of published accounts of the existence of general prejudice and hostility against Roma (see Ciorcan and Others, cited above, § 163, and Fedorchenko and Lozenko, cited above, § 68).", "85. Turning to the present case, the Court considers that investigators and the prosecutors involved in the present case had before them plausible information which was sufficient to alert them to the need to carry out an initial verification and, depending on the outcome, an investigation into possible racist overtones in the events that led to the death of three people and the injuring of two more.", "86. As regards the Government’s argument that the authorities had established the relevant facts of the case, including a potential non-proven racist motive, the Court observes that the investigating authorities questioned Mr J. and other witnesses about a possible racist background for his actions and requested an expert to assess Mr J’s motive. However, they did not extend their investigation and analysis to any potential racist element of the violent attack of 16 June 2012. The investigating authorities in particular failed to carry out a thorough examination of the fact that Mr J. had acted violently against Roma shortly before the attack, even though the expert witness suggested a link between this incident and the shooting (see paragraph 23 above). The Court would reiterate, in this connection, that where any evidence of racist bias comes to light in an investigation, it must be checked; if such bias is confirmed, a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives (see Balázs, cited above, § 61, and Nachova, cited above, § 164).", "87. In addition, the general context of the attack should have been taken into account. As explained in the Court’s case-law, the domestic authorities should be mindful that perpetrators may have mixed motives, being influenced as much or more by situational factors as by their biased attitude (see Škorjanec, cited above, § 65). In the case in issue, the relevant situational factors, stemming especially from the expert opinion of the psychologist, were not taken into account. Nevertheless, even assuming that the authorities considered the evidence to be contradictory, they did not take any procedural steps or examine whether any inference could be drawn from any other circumstantial evidence (contrast Balázs, cited above, § 64 and § 66).", "88. In this connection, the Court cannot but note that on 11 December 2012 the special prosecutor indicted Mr J., charging him explicitly with the offence of premeditated first-degree murder under Article 144 § 1 and § 2 (c) of the Criminal Code (partly accomplished and partly attempted). In the bill of indictment, the special prosecutor identified only one aggravating form under Article 144 § 2 of the Criminal Code ‑ specifically, that Mr J.’s attack had been directed against five people. The other possible aggravating form of racial motive – that is to say under Article 144 § 2 (e) of the Criminal Code, with reference to Article 140 (f) of the Criminal Code – was not addressed and discussed at all (see paragraph 25-27 above).", "89. The Court further notes that the applicants, together with six other members of the family, joined the criminal proceedings before the court as civil parties (see paragraph 29 above). During the trial, their lawyer contested the objective nature and the accuracy of the experts’ conclusions, particularly in relation to Mr J.’s motive. He attempted to question the experts. One of the experts (the psychiatrist) stated that it was not within their remit to assess the issue of racism, and another question from the lawyer for the clinical psychologist was not allowed by the SCC. A proposal by the applicants’ representative to order a second expert opinion was rejected (see paragraph 30 above). Eventually, the SCC delivered only a simplified judgment, which contained a brief description of the criminal act and stipulated the sentence imposed (see paragraph 31 above). The question of Mr J.’s motives and the legal classification of his actions was not addressed (see paragraph 32 above).", "90. In this regard, the Court does not accept the Government’s suggestions that (i) the applicants failed to allege before the trial court that Mr J.’s actions had been racially motivated (contrast Mižigárová, cited above, § 122, and Vasil Sashov Petrov v. Bulgaria, no. 63106/00, § 72, 10 June 2010), and (ii) the allegations that they had made had been of a vague and general nature (see, by contrast, Adam v. Slovakia, no. 68066/12, § 94, 26 July 2016). Indeed, not only did their lawyer raise the issue of racism before the SCC and attempt to interview expert witnesses about Mr J.’s motive, but one family member even expressly argued in her appeal that the SCC had failed to consider that there might have been a racial motive for the attack (see paragraph 35 above). The applicants’ representative was not allowed to pursue the line of questioning concerning a racial motive for Mr J.’s actions since a civil party could raise only issues concerning a claim for damages (see paragraph 53 above). Moreover, an injured party claiming damages could not prevent the court from delivering a simplified judgment under Article 172 § 2 of the CCP; nor could that party lodge an appeal with the appellate court as regards the ruling on Mr J.’s guilt and sentencing (see paragraph 56 above).", "91. The Court observes that the Slovak legal system does not allow an injured party to act as a subsidiary (see, for example, Kitanovski v. the former Yugoslav Republic of Macedonia, no. 15191/12, § 89, 22 January 2015) or as a private prosecutor (see, for example, M.C. v. Poland, no. 23692/09, § 41, 3 March 2015) and that the role of the public prosecutor is essential. It is only the public prosecutor who supervises the investigation conducted by the police authority in the pre-trial stage of the criminal proceedings (see paragraph 56 above), outlines in principle, on the basis of the bill of indictment, the extent of the trial court’s adjudication (see paragraph 57 above), and has a right to commence full review before the appellate court (see paragraph 58 above). In the present case, there is no indication that the prosecution gave any instructions to police in the course of the investigation in relation to a possible racist motive of Mr J., even though already his very first statement of 16 June 2012 contained an apparent racial motive for his action (see paragraph 11 above). Further, Mr J. was not charged with a racially motivated crime (see paragraph 9 above) and the public prosecutor did not correct this lacuna on the part of the investigation authorities (see paragraph 56 above). In addition, the public prosecutor failed to discuss in the bill of indictment a possible racial motive (see paragraphs 27 and 88 above) which became even more apparent from the evidence collected in the course of the investigation, and in particular gave no reasons why the previous violent behaviour of Mr J. and his own statement, together with the findings of the clinical psychologist, could not be linked to racial motives for the attack (contrast Stoica v. Romania, no. 42722/02, § 120, 4 March 2008). Moreover, because the prosecutor (with the defendant) had waived his right to appeal, a full appeal was no longer possible before the appellate court.", "92. Thus, in this procedural situation, it was not open to the appellate court to amend the impugned SCC judgment solely on the basis of an appeal lodged by the applicants because their appeal was limited to their claims concerning damages. Moreover, the applicants’ complaint that the prosecuting authorities’ failure to assess whether there had been any racial motive for the attack was considered by the Constitutional Court jointly with their grievances concerning their inability to challenge Mr J.’s conviction and sentence and thus dismissed as being outside the court’s competence (see paragraph 41 above).", "93. The Court is mindful that it is not its task to verify whether the decision of the public prosecutor to waive the right to appeal and the courts’ decisions were correct in terms of Slovak law; nevertheless, it considers that in cases raising issues under Article 2 and 3 of the Convention, this procedural arrangement calls for greater vigilance on the side of the authorities dealing with prosecution to secure the effective implementation of the domestic criminal laws.", "94. In this connection the Court emphasises that racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment (see Nachova and Others, cited above, § 145).", "95. The Court is aware of the seriousness of the applicants’ allegations, as well as the sensitive nature of the situation related to Roma in Slovakia at the relevant time (see paragraphs 61-64 above). It is also aware that its role is not to rule on the application of domestic law or to adjudicate on the individual guilt of persons charged with offences, but to review whether and to what extent the competent authorities, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by the procedural obligations under the Convention (see Škorjanec, cited above, § 69). Likewise, aware of its subsidiary role, the Court is conscious that it is prevented from substituting its own assessment of the facts for that of the national authorities (see Balázs, cited above, § 75).", "96. Nevertheless, it remains the case that the prosecuting authorities failed to examine a possible racist motive in the face of powerful racist indicators and in particular failed to give any reasons whatsoever whether the attack of 16 June 2012 had or had not been motivated by racial hatred. In the absence of any reaction by the courts to the limited scope of the investigation and prosecution, the adequacy of the action taken by the authorities dealing with the investigation and prosecution in this case was impaired to an extent that is irreconcilable with the State’s obligation in this field to conduct vigorous investigations, having regard to the need to continuously reassert society’s condemnation of racism in order to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (see Koky and Others v. Slovakia, no. 13624/03, § 239, 12 June 2012; Amadayev v. Russia, no. 18114/06, § 81, 3 July 2014; and Balázs, cited above, § 52).", "97. The combined effect of the above considerations is such as to amount to a violation of Article 14, read in conjunction with Article 2 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "98. Lastly, the applicants complained under Article 2, in conjunction with Article 13 of the Convention, about their inability to cross-examine or otherwise challenge the experts’ conclusions as to Mr J.’s mental state, which had prevented them from actively participating in the proceedings.", "99. The Court observes firstly that of all that the essence of these complaints overlaps to a significant extent with that of the complaints presented and examined above under Article 14, in conjunction with Article 2 of the Convention. Having regard to the finding of a violation of Article 14, in conjunction with Article 2 of the Convention, the Court considers that, while the complaint under Article 13, taken in conjunction with Article 2 of the Convention, is admissible, there is no need for a separate examination of this complaint on its merits (see, for example, Koky and Others, cited above, §§ 242-244; Dimitrova and Others, cited above, § 59; and Mižigarová, cited above, §§ 111 and 123).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "100. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "101. The applicants claimed jointly 50,000 euros (EUR) in respect of non-pecuniary damage.", "102. The Government considered this claim to be excessive.", "103. Having regard to all the circumstances of the present case, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, and taking into account the amount of their claim, the Court awards each applicant EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to them.", "B. Costs and expenses", "104. The applicants did not make a claim for costs. Consequently, no award is made under this head.", "C. Default interest", "105. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1963 and lives in Zagreb.", "7. On 29 April 1999 between 8 and 8.30 p.m. the applicant, together with several other individuals, was collecting scrap metal in Harambašićeva Street in Zagreb.", "8. Suddenly, two unidentified men approached the group and attacked the applicant. They beat him all over his body with wooden planks, shouting racial abuse. Another two unidentified men, apparently members of the same group, stood close by and kept watch.", "9. Shortly afterwards, following a report by an unknown person about the ongoing fight, a police patrol was sent to the scene. The police interviewed the persons on the spot and went up and down the nearby streets attempting to find the attackers.", "10. An ambulance arrived and took the applicant to a nearby hospital. The doctors concluded that no bones had been broken, provided the applicant with painkillers and sent him home to rest.", "11. During the night the applicant experienced severe pain and the next day he went to another hospital where he was examined again. It was found that as a result of the assault he had sustained multiple rib fractures, in particular of the ninth, tenth and eleventh left ribs. He was kept in hospital for further treatment and discharged a week later, on 5 May 1999.", "12. According to the applicant, since 1 June 1999 he has been having psychiatric treatment as a result of the incident, he had attended the Zagreb Psychiatric Clinic on at least eighteen occasions, and he had been diagnosed with post-traumatic stress disorder characterised by depression, anxiety, panic attacks, fears for his own safety and that of his family, intermittent insomnia and nightmares and, in general, an emotional breakdown.", "13. On 15 July 1999 the applicant's lawyer lodged a criminal complaint with the Zagreb Municipal State Attorney's Office ( Općinsko državno odvjetništvo u Zagrebu “the State Attorney's Office”) against persons unknown. She gave a factual account of the incident and alleged that the applicant had been seriously injured. The applicant offered his own testimony in evidence and proposed that three eyewitnesses be heard. The applicant requested the State Attorney's Office to investigate the incident, identify the perpetrators and institute criminal proceedings against them.", "14. On the same day the applicant's lawyer sent a letter to the Zagreb Police Department ( Policijska uprava Zagrebačka “the police”) in which she informed the police of the incident and requested the information necessary for the institution of criminal proceedings. She repeated her request on 30 August 1999.", "15. On 31 August 1999 the police informed the applicant's lawyer that the perpetrators had not been identified.", "16. On 2 September 1999 the applicant's lawyer wrote to the Minister of the Interior ( ministar unutarnjih poslova ) informing him of the incident and stating that the police had not identified the perpetrators. She requested decisive police action, relying on the relevant domestic and international human rights standards.", "17. On 29 September 1999 the police interviewed the applicant about the events of the evening of 29 April 1999. The applicant described the two attackers vaguely, stating that due to his short-sightedness he was not likely to be able to recognise them.", "18. On the same date, the police interviewed B. T., who had been with the applicant on the date in question. He also described the attackers, stating that he had not seen their faces clearly because he had been hiding from them during the attack.", "19. Five days later, the police interviewed N. C., who lives in the area where the attack had taken place and who had witnessed the incident. He described the attackers, stating that as everything had happened very fast, he had not been able to see them clearly.", "20. On 7 October 1999 the police interviewed Z. B., another eyewitness to the incident, who gave a similar statement.", "21. In January 2000 the applicant's lawyer asked the State Attorney's Office twice what steps had been taken to identify and prosecute the perpetrators, at the same time complaining that the investigation ws inadequate.", "22. On 10 February 2000 the State Attorney's Office informed the applicant's lawyer that they had urged the police to speed up the investigation.", "23. On 21 February 2000 the State Attorney's Office informed the applicant's lawyer that the police had carried out an on-the-spot investigation immediately after having been informed of the incident, that they had interviewed the applicant and several other witnesses and had searched the area but had not identified any person fitting the description of the perpetrators.", "24. On 16 March 2000 the applicant's lawyer informed the State Attorney's Office that the individuals who had attacked the applicant had apparently been engaged in numerous attacks against Roma persons in Zagreb in the same period. Two of the Roma who had been attacked, I. S. and O. D., had told the applicant's lawyer that they would be able to identify the perpetrators and that O. D. had personally witnessed the attack on the applicant. Furthermore, the police had already identified and apprehended O. D.'s attackers. The lawyer stressed that all the incidents had been racially motivated, because the attackers had combined physical with racist verbal abuse.", "25. On 16 June 2000 the State Attorney's Office informed the applicant's lawyer that the police had been unsuccessful in finding O. D. and that they had no record of any assault on him.", "26. On 1 August 2000 O.D. was located and interviewed at the Beli Manastir Municipality State Attorney's Office.. He stated that he himself had been attacked by a certain S. sometime in January 2000 and that the same person had been one of the applicant's attackers. He remembered S. because he had a large scar on his face.", "27. The police subsequently identified S. as an alcoholic well known to the local authorities for several criminal offences. However, the police eliminated him as a possible suspect because no other witness had identified him despite his very noticeable scar. Also, according to the information available to the authorities, S. did not belong to any skinhead group. Nothing in the police case file indicates that S. was summoned for questioning regarding the incident.", "28. Meanwhile, on 24 May 2000 the applicant's lawyer wrote again to the State Attorney's Office stating that Croatian Radio Television (HRT) had broadcast a report on 14 May 2000 in which a young skinhead had been interviewed about his reasons for engaging in attacks on the Roma population in Zagreb. She claimed that the person interviewed had alluded to the incident of 29 April 1999 involving the applicant.", "29. The State Attorney's Office requested the editor of HRT to give them the necessary information in order to identify the person interviewed.", "30. On 18 April 2001 the police interviewed the journalist who did the interview. The journalist stated that the skinhead he had interviewed had talked generally about his hatred of the Roma population, but that he had not specifically addressed the incident at issue. The interviewee lived in the part of town where the attack took place and had described how annoying he found it when Roma came to his neighbourhood to collect scrap metal. However, the journalist did not wish to disclose the name of the person interviewed, relying on his right to protect the source of his information.", "31. Meanwhile, on 14 February 2001 the applicant's lawyer complained again to the State Attorney's Office and to the Minister of the Interior of the poor quality and unacceptable duration of the investigation. She requested an update and complained that there appeared to be no real effort on the part of the relevant authorities to identify and apprehend the perpetrators. She also gave the prosecuting authorities some new information, namely that the persons who had attacked the applicant belonged to a skinhead group whose members were responsible for numerous attacks on the Roma population in Zagreb. She further described several recent attacks on the Roma population by skinheads and listed names and addresses of both victims of and witnesses to such attacks.", "32. On 22 May 2001 the Ministry of the Interior informed the applicant's lawyer that the police had taken appropriate action on receipt of all the information provided by her.", "33. On 6 April 2002 the applicant lodged a constitutional complaint with the Constitutional Court, requesting it to order the State Attorney's Office to take all necessary action to complete the investigation as soon as possible and within six months at the latest.", "34. On 12 November 2002 the Constitutional Court informed the applicant's lawyer that it had no competence to rule on cases involving prosecutorial inaction during the pre-trial stage of proceedings and took no formal decision on the complaint.", "35. The proceedings are still pending at the pre-trial stage." ]

[ "II. RELEVANT DOMESTIC LAW", "36. Section 1(2) of the Media Act ( Zakon o medijima, Official Gazette no. 59/2004 of 10 May 2004) provides that its provisions shall be applied and interpreted in conformity with the Convention.", "The relevant part of section 30 of the Media Act (which used to exist in the Croatian legal system as former section 28(6) of the 2003 Media Act (Official Gazette no. 163/2003 of 16 October 2003)), reads as follows:", "“1. A journalist shall not be obliged to reveal the source of published information or information he intends to publish...", "4. The State Attorney's Office may, if such a limitation is necessary in the interests of national security, territorial integrity or the protection of health, submit a request to the competent court to have a journalist ordered to reveal the source of published information or information he intends to publish....", "6. The court may order a journalist to reveal the source of published information or information he intends to publish if that is necessary for the protection of the public interest and involves extremely significant and serious circumstances, whereby it is indisputably established:", "(i) there is no reasonable alternative to revealing the source of information or that the authority indicated in paragraph 4 of this section, which seeks that the source be revealed, has already taken such a measure, and", "(ii) the law-based public-interest justification for revealing the source of information clearly prevails over the public-interest justification for protecting the source of information.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 3, 8 AND 13 OF THE CONVENTION", "37. The applicant complained that the investigation carried out by the Croatian authorities following the attack on him had been unreasonably delayed and ineffective, in breach of Articles 3, 8 and 13 of the Convention, which read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“Everyone has the right to respect for his private ... life...", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties' submissions", "1. The applicant", "38. The applicant maintained that the criminal investigation in his case had now been pending for seven and a half years, during which the police had failed to investigate the attack properly. He stressed that his lawyer had urged not only the police, but also the State Attorney's Office and the Ministry of the Interior, to speed up the investigation and apprehend the attackers. Moreover, the applicant considered the Government's explanation of the prolonged duration of the investigations contradictory and unsatisfactory. In particular, the police had firstly stated that he had given a detailed description of the attackers, but had later claimed the contrary.", "39. The applicant further submitted that he had not been informed of several omissions by the police, in particular of the reasons why the police had never sought to investigate the person identified by O. D. as one of the possible attackers. It appeared from the documents submitted that the identified individual, known as S., had a criminal record, whereas he had not even been questioned about the attack on the applicant.", "40. Moreover, the applicant also pointed out that the police had never taken any action other than to interview the applicant and several eyewitnesses proposed by his lawyer, even though Croatian law provided for many other standard police methods, such as interviewing persons identified as belonging to skinhead groups, possibly also suspects in other similar incidents, polygraph testing, undercover measures and so on.", "41. The police had further failed to request the competent court to order the journalist conducting the interview with a skinhead aired on national television on 14 May 2001 to reveal his source of information, even though they had no other leads in the case. In this connection, the applicant observed that such a possibility had been available ever since the Media Act had come into force, but that the domestic authorities had nonetheless never used it. Furthermore, such an order would not have been contrary to the freedom of expression guaranteed under the Convention, since in the present case the general interest in prevention of crime against ethnic minorities prevailed over the protection of the source of information.", "42. For these reasons, the investigation had not met the standards set out in the Court's case-law with respect to Article 3 of the Convention, taken alone and in conjunction with Article 13. Alternatively, should the Court conclude that his case did not attain the minimum level of severity under Article 3, the applicant argued under Article 8 that the attack he had suffered and the lack of an effective investigation thereof, had constituted an unjustified interference with his private life.", "2. The Government", "43. The Government contested the applicant's allegations. They claimed at the outset that the ill-treatment to which the applicant had been exposed had not attained a level of severity which would justify the application of Article 3 of the Convention. The incident had been caused by unknown individuals and not by representatives of the authorities and the Government could not assess to what extent the applicant's mental suffering following the incident had been caused by the attack itself or whether it had existed before.", "44. In respect of the investigation following the incident, the Government firstly contended that the positive obligation of the State in cases when the ill-treatment had been caused by third persons went only so far as that the State was expected to prevent acts of which its bodies were or should be aware.", "45. Furthermore, the Government pointed out that the police had intervened immediately after having been informed about the attack. The subsequent investigation had been significantly hindered from the very outset, however, because neither the applicant nor the persons who had witnessed the attack had been able to give a sufficiently detailed description of the attackers. Moreover, the applicant had admitted that he would not be able to recognise the attackers even if he were to see them again. During the investigation the police had interviewed all the potential witnesses to the incident, including persons living in the area and a waitress working in a nearby café. All actions had been taken in the shortest time possible.", "46. It is true that witness O. D. had identified a certain S. as one of the attackers. However, none of the other witnesses having confirmed this allegation – despite the large and visible scar on his face and the fact that he was well known to the police, although not as a member of a skinhead group – the police had excluded him from the list of possible suspects.", "47. As to the journalist interviewed, the Government submitted that he had the right not to reveal his source of information and that, under the law in force at the time of the interview, he could not have been ordered to do so.", "48. In conclusion, the Government deemed that the investigation in respect of this incident had not constituted a violation of Article 3 or 13 of the Convention. As to the applicant's complaint under Article 8 of the Convention, the Government claimed that there had been no immediate or direct link between the actions pursued and his private life.", "B. The Court's assessment", "49. Having regard to the nature and the substance of the applicant's complaint in the present case, the Court finds that it falls to be examined primarily under Article 3 of the Convention.", "50. The Court reiterates at the outset that the ill-treatment suffered must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim (see Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 ‑ VII).", "51. In the present case, the Court considers that the injury suffered by the applicant, including several broken ribs and subsequent hospitalisation, was sufficiently serious to amount to ill-treatment within the meaning of Article 3 of the Convention.", "52. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002).", "53. Article 3 of the Convention may also give rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3290, § 102). Such a positive obligation cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII).", "54. Lastly, the Court reiterates that the scope of the above obligation by the State is one of means, not of result; the authorities must have taken all reasonable steps available to them to secure the evidence concerning the incident (see, mutatis mutandis, Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V). A requirement of promptness and reasonable expedition of the investigation is implicit in this context (see, mutatis mutandis, Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998 ‑ VI, p. 2439, §§ 102-104).", "55. Turning to the present case, since the event complained of took place the police have not brought charges against anyone and the criminal proceedings have now been pending in the pre-trial phase for almost seven years.", "56. The Government submitted the complete police case file in the matter, containing interviews with the applicant and several eyewitnesses, which the police claim has not produced any leads. Yet, presumably on the basis of the description of the attackers, the police concluded that the attack had been committed by members of a skinhead group, which has been known to participate in similar incidents in the past. The police appear never to have brought in for questioning any person belonging to this group or to have pursued this information in any other way. Moreover, they excluded the person S. identified by one of the witnesses from the list of possible suspects without questioning him about the attack.", "57. The police also interviewed the journalist who had talked to one of the skinhead members who had alluded to the attack on the applicant. However, they did not request the competent court to order that the journalist reveal his source of information in line with the provisions of the domestic law. The relevant law had already changed to allow such a possibility by 2003, but the Government did not explain why the police did not avail themselves of this, given that there appeared to be no further leads in the case. The Court considers that such an action by the police or the competent State Attorney's Office would not a priori be incompatible with the freedom of the media guaranteed under Article 10 of the Convention, since, in any event, it would be for the competent court to weigh all the interests involved and to decide whether or not it was necessary in the particular circumstances of the case to reveal the interviewed person's identity.", "58. Lastly, the Court notes that the police have not resorted to any other measures of investigation allowed for by the domestic law, other than interviewing witnesses proposed by the applicants' lawyer. In this connection, the Court cannot but note that the last activity of the police in the case took place in 2001.", "59. Having considered all the material in its possession and the arguments put forward by the parties, the Court considers that the failure of the State authorities to further the case or obtain any tangible evidence with a view to identifying and arresting the attackers over a prolonged period of time indicates that the investigation did not meet the requirements of Article 3 of the Convention.", "60. In consequence, the Court finds that there has been a breach of Article 3 of the Convention.", "61. Having regard to the above conclusion, in the circumstances of the present case the Court finds that no separate issues arise under Articles 8 or 13 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUCTION WITH ARTICLE 3 OF THE CONVENTION", "62. The applicant also complained that both his ill-treatment and the subsequent proceedings conducted by the authorities showed that he had been discriminated against on account of his ethnic origin. He relied on Article 14 of the Convention, taken in conjunction with Article 3 of the Convention. Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties' submissions", "63. The applicant maintained that the attack on him and the lack of action by the authorities had resulted from the fact that he was of Roma origin. He relied on the Nachova case (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, ECHR 2005 ‑ ...) and on the assumption that a complaint of racist violence should be accorded utmost priority, as racist violence was particularly destructive of fundamental rights. In this respect the applicant pointed to the broader situation of the Roma population in Croatia as well as the recently published report of the European Commission against Racism and Intolerance (Third Report on Croatia, CRI (2005) 24, 14 June 2005).", "64. The Government considered the applicant's Article 14 complaint wholly unsubstantiated. They maintained that nothing in the conduct of the domestic authorities had indicated a difference in treatment of the applicant on the basis of his Roma origin or a tendency to cover up events or encourage an attack to his detriment. The fact that the perpetrators had not yet been identified had no connection with the ethnic origin of the applicant, but was the result of objective problems the prosecuting authorities had experienced during the course of the proceedings.", "65. In this connection the Government enumerated several cases in which the police had been successful in identifying and prosecuting persons who had committed crimes against individuals of Roma origin. They claimed that there was no systemic problem encountered by the Roma population in Croatia, other than their difficulties of integration into society, which were common also in other States signatory to the Convention.", "B. The Court's assessment", "66. The Court reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160, ECHR 2005 ‑ ...).", "67. The Court considers the foregoing necessarily true also in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others, cited above, with further references).", "68. In the present case it is suspected that the applicant's attackers belonged to a skinhead group which is by its nature governed by extremist and racist ideology. Both the police and the Government admitted this fact.", "69. The Court considers it unacceptable that, being aware that the event at issue was most probably induced by ethnic hatred, the police allowed the investigation to last for more than seven years without taking any serious action with a view to identifying or prosecuting the perpetrators (see paragraphs 58-60 above).", "70. Consequently, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "71. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "72. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage on account of pain, frustration and humiliation suffered as a result of the attack and of the subsequent inadequate investigation.", "73. The Government considered this claim unsubstantiated and excessive.", "74. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 under this head, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "75. The applicant claimed 790 US dollars (USD) in respect of costs incurred by the European Roma Rights Centre in the domestic proceedings and USD 8,325 for those incurred in the proceedings before the Court (111 hours of work at an hourly rate of USD 75). In addition, the applicant claimed a total of EUR 6,600 (110 hours at an hourly rate of EUR 60) in respect of costs incurred by the lawyer in preparing the constitutional complaint at the domestic level as well as those incurred during the Court proceedings.", "76. The Government contested these claims as excessive.", "77. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). Taking into account all the materials in its possession, the Court makes an award of EUR 6,000 under this head, plus any tax that may be chargeable on that amount.", "C. Default interest", "78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first applicant was the mother and the second applicant was the brother of Mr Angel Dimitrov Iliev (“the victim”), who was of Roma origin and twenty-eight years old at the time of his death.", "A. The death of Mr Iliev", "7. On the evening of 18 April 1996, in the town of Shumen, the victim was attacked by seven teenagers (“the assailants”) and beaten severely. He was also stabbed several times by one of the assailants.", "8. The victim was taken to a hospital after the attack but died on the following morning, 19 April 1996.", "9. As later submitted by the assailants, the attack was motivated by the victim's Roma ethnicity (see paragraphs 1 2 -1 3 and 1 8 -2 1 below).", "B. The criminal proceedings into the death of Mr Iliev", "10. All of the assailants were detained and questioned by the police on the day of the attack, 18 April 1996. With one exception, all were juveniles.", "11. The assailants were all released after questioning, with the exception of G.M.G. (“the first assailant”), who was seventeen years old at the time. A knife had been found on him and two of the other assailants, N.R. and S.H., had implicated him as the person who had wielded the weapon. The first assailant was remanded in custody on suspicion of murder.", "12. On 19 April 1996 the assailants were again questioned by the police. N.R. and S.H. confirmed their statements to the effect that the first assailant had wielded the weapon. Thereupon, a preliminary investigation was opened against him and he was charged with murder stemming from an act of hooliganism (see paragraph 56 below). He was then questioned, but declined to give a statement other than to confirm that the knife found on him was his own.", "13. D.K., who was fifteen years old at the time, gave a statement on 19 April 1996, the relevant part of which reads :", "“... [We have been meeting] with the boys regularly for the past several months. We agree in advance where and when we will meet the next time, because we do not go to the same school... We hate junkies and [do not] take drugs. .. we [also] do not drink alcohol, either when we see each other or when we are apart... We talk about films, music and have [stated] on many occasions that we hate Gypsies – we call them “soot” ( сажди ) and “ mangals ” ( мангали )... Blacks, Gypsies, Turks, all foreigners I hate. As for the Turks and the Gypsies [,] it is known that a high percentage of criminal offences are [committed] by Gypsies and Turks. At home I have heard my father talk about them that way...", "Last night... we met... as we had previously agreed. [It was a] simple gathering without any aim or idea of what we would do... We went for a walk in the city [park]... We [then] headed towards the train station... [Then] down towards the road... We passed by the bridge... and were walking [close to] the tracks. We were just passing and I [do not know] who noticed the Gypsy first... [The Gypsy ] was about ten metres away, we were on one side of the road and he was on the other. We started walking after him... The first to catch up with him was [the first assailant] and the Gypsy asked him if he had [the time]. I do not think that anyone of us knew the Gypsy. [The first assailant] told him “I have, I have” and knocked his head against the wall. [He] held the Gypsy by the jacket from behind [so] that when he hit him the first time he did not [collapse] because [the first assailant] was holding him [up]. [The first assailant] turned him around immediately and knocked him [once] again [against] the wall. I think he hit him on the head again. [S.H.] went over... and kicked the Gypsy somewhere on the body. I did not see where. I and [one of the others] went over to [them] and [we all] brought the Gypsy to the ground. [He] was not able to put up any resistance because everything happened very quickly. He was shouting, because he was hurt. I was not thinking about what the Gypsy was saying and I did not care. Personally, I wanted to beat him up and nothing more. I think that the others also just wanted to beat him up... The others... were [also] hitting the Gypsy. I saw them when they hit him. The Gypsy was on the floor and was not able to put up any resistance. I was doing what the others were doing and did not watch what they were doing... At some point I saw that there was bleeding from his head. The blood was somewhere on [his] face. He was [still] moving... the same night I had seen that [the first assailant] had a knife... The knife is mine, [but] I gave it to [the first assailant]... a long time before this [night]... I did not know that [that] night [the first assailant had] the knife [ with him ]...", "... While we were walking [behind] the Gypsy [and] before we caught up with him[,] I saw that [N.B.]... said to the [the first assailant] “Give me the knife” and I saw that [he] took it out of his pants and gave it to him. I did not see where [ N.B. ] put the knife and whether it remained in his hand. [But] when we were hitting the Gypsy on the floor I saw how [ N.B. ] stabbed [him] with the knife in [the buttocks] area... I saw that [ N.B. ] plunged the knife several times into the body of the Gypsy [,] always in that part of his body. The Gypsy was screaming. [ N.B. ] did not say anything, he was not swearing. [ N.B. ] made three or four jabs... [T]he Gypsy was still moving. Blood began to flow from the place where [ N.B. ] had [stabbed him]... The rest of us were continuing to hit... the Gypsy while [ N.B. ] was stabbing him...The Gypsy had not provoked us in any way[,] neither with words nor with actions... We beat him because he was a Gypsy ... He had had enough. I saw that he was not bleeding profusely... We did not want to kill him, just to beat him up...I am not sure that only [ N.B. ] used the knife, but I cannot indicate that any one of the others used it. I did not see another [ person using it]...", "...", "I still do not know what happened to this person, whether he is [still] alive... We have beaten up Gypsies [before] and we [always] hear what happens [to them]...”.", "14. An autopsy of the victim was performed on 20 April 1996. It established that he had been stabbed three times in the left outer thigh and twice in the abdominal cavity which resulted in the severance of the ischiadic nerve, the profunda femoris artery (deep artery of the thigh), the main intestine and the urethra. He also had bruises and contusions to his face and the back of his head. The autopsy concluded that the cause of death was massive internal loss of blood, resulting from the severance of the profunda femoris artery.", "15. On the same day, 20 April 1996, the investigator commissioned a medical expert's report to establish the victim's wounds, whether any of them were in the stomach area, how they had been inflicted, what force had been used and whether his death had been inevitable or whether it could have been avoided by timely specialised medical assistance. It is unclear what was established by the medical expert.", "16. On 15 and 16 May 1996 four of the assailants, D.K., S.H., N.R. and N.B., were charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below). They were questioned in the presence of their lawyers and then released into their parents'charge.", "17. D.K. confirmed his previous statement but denied knowing anything about the stabbing of the victim. He was unable to determine whether he was guilty or not.", "18. S.H., who was sixteen years old at the time, pled guilty to the offence with which he had been charged. He expressed his hatred for Gypsies and stated that the group had purposefully looked for someone from that minority group to attack. S.H. retracted his previous statement of 19 April 1996 in respect of who had perpetrated the stabbings (see paragraph 11 above) and implicated N.B. as having been responsible. As to why he was changing his testimony, he claimed that the members of the group had had an understanding always to implicate the first assailant if they were ever caught, which the latter had apparently suggested and condoned.", "19. N.R., who was seventeen years old at the time, also pled guilty to the offence with which he had been charged. He also confirmed that they had purposefully looked for a Gypsy to attack, retracted his statement of 19 April 1996 (see paragraph 11 above) and implicated N.B. as having stabbed the victim.", "20. N.B. (“the second assailant”), who was fifteen years old at the time, pled guilty to the offence with which he had been charged but denied any knowledge of the stabbings or of having perpetrated them.", "21. On 22 May 1996 G.R.G., who was eighteen years old at the time, was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below ) and questioned in the presence of his lawyer. He was then released but a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. In his statement, he pled guilty to the offence with which he had been charged and confirmed the attack was motivated by the victim's Roma ethnicity but was unable to indicate who had perpetrated the stabbings.", "22. The seventh member of the group, S.K., was never charged as he did not participate in the attack on the victim.", "23. Also on 22 May 1996 two witnesses were questioned, one of whom was I.D., a member of the group who had not been present during the attack on 18 April 1996. He gave a statement to the investigation that he had met the first assailant later on the same evening and that the latter had confided in him that the second assailant had stabbed a Gypsy whom they had attacked but that he had taken the knife from him after the attack. I.D. also stated that in a subsequent conversation with the second assailant on 6 May 1996, the latter had inquired what kind of sentence he might receive if he were to confess but that he was scared to do so for fear of being sent to a juvenile correctional facility. The other witness, N.D., gave a statement attesting to the aforementioned conversation.", "24. On 23 May 1996 the first assailant was questioned again. He confirmed that the group had purposefully looked for a Gypsy to assault on the evening of 18 April 1996. The first assailant also stated that he had given N.B. his knife before the attack and that the latter had stabbed the victim, but that there had been no prior warning or agreement about the incident. Lastly, the first assailant confirmed that he had taken the knife back from N.B. after the attack and that there had been a general understanding in the group that he would take responsibility if they were ever to get caught, but that it had not been agreed for this instance in particular.", "25. On 14 June 1996 the Shumen District Prosecutor's Office found that there was a lack of evidence that the first assailant had stabbed the victim, dismissed the charges against him and released him.", "26. The charges against the first assailant were amended on 17 June 1996 and, like the other members of the group, he was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below ). A restrictive measure was imposed on him whereby he was placed under the supervision of an inspector from the Juvenile Delinquency Unit ( инспектор към Детска педагогическа стая ). He was also questioned in the presence of his lawyer, pled not guilty to the offence with which he had been charged and reiterated his statement of 23 May 1996.", "27. On 21 June 1996 N.R. and S.H. were charged with having made false statements to the investigation authorities on 19 April 1999, accusing the first assailant of the offence of murder, which resulted in charges being brought against him (see paragraphs 11 and 13 above and 59 below). They were questioned and then released into the charge of their parents.", "28. On 26 June 1996 the second assailant was charged with negligent homicide resulting from an inflicted median bodily injury (see paragraph 57 below). He pled not guilty to the offence and insisted that he had not stabbed the victim.", "29. Due to their conflicting testimonies, a confrontation was organised on 3 July 1996 between the second assailant, N.R. and S.H. They each confirmed their previous statements.", "30. On 15 April 1997 the results of the preliminary investigation were presented to the first and second assailants.", "31. On 18 April 1997 the investigator in charge concluded in a report ( обвинително заключение ) that there was sufficient evidence against the assailants to obtain a conviction and that the case should proceed to trial. It is unclear when and whether the case file was transferred to the competent Prosecutor's Office.", "32. A little more than a year later on 26 June 1998, a confrontation was organised between the second assailant and I.D. during which they confirmed their previous statements to the investigation.", "33. On several occasions during the course of the preliminary investigation the applicants approached the investigator in charge with requests for information on the progress of the case. They were either refused information or were provided with scant details. Sometime in the spring of 1999 the lawyer of the applicants was granted access to the case file.", "34. A confrontation was organised on 30 March 1999 between the second assailant and N.D., during which they confirmed their previous statements to the investigation.", "35. On 6 April 1999 the second assailant petitioned the investigator to commission a medical report into his state of health, as he claimed to be suffering from a serious incurable disease. Such a report was ordered on 6 October 1999. The resulting medical report of 21 October 1999 established that the second assailant suffered from chronic pyelonephritis and back pain, which were typical for teenagers and would be naturally outgrown.", "36. On 18 October 1999 the applicants filed a request with the investigator to be recognised as civil claimants in the criminal proceedings.", "37. On 3 November 1999 the investigator commissioned a psychiatric evaluation of the second assailant. The resulting report, of an unknown date, found that he did not suffer from any serious psychiatric condition and that on the day of the attack his illnesses did not affect his understanding of the nature and consequences of his actions nor his ability to control them.", "38. On 18 December 1999 the applicants filed a complaint with the Shumen Regional Prosecutor's Office, alleging that the investigation was being protracted. No apparent action was taken in response to their complaint.", "39. A confrontation was organised on 12 January 2000 between the second assailant and N.R., at which they gave conflicting testimony in respect of a conversation they had had shortly after the attack on the subject of whether to blame the first assailant for the stabbing.", "40. On 17 April 2000 the investigator recognised the first applicant as a civil claimant in the criminal proceedings.", "41. Between 17 April and 1 June 2000 the results of the preliminary investigation were presented to the second assailant, the other five accused and the first applicant.", "42. On 2 June 2000 the investigator in charge concluded in a new report that the case should proceed to trial, but proposed that the charges for falsely incriminating the first assailant be dismissed. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date.", "43. On 3 July 2000 the Shumen Regional Prosecutor's Office remitted the case with instructions that S.K. be questioned concerning the reasons why the group had initially blamed the first assailant for the stabbing, that the accused undergo psychiatric evaluations as to whether or not on the day of the attack they understood the nature and consequences of their actions and could control them, and that the charges against the second assailant be amended.", "44. On 11 October 2000 a confrontation was organised between the first and second assailants, at which they gave conflicting testimony in respect of who had had the knife at the time of the attack.", "45. On 12 October 2000 S.K. was questioned and gave a statement that there had not been a prior understanding in the group that the first assailant would always take the blame, but that following the attack the group had met and the first assailant had informed them that he would take responsibility for what had happened.", "46. On 23 March 2001 D.K. was questioned but declined to answer any questions.", "47. The first assailant was questioned on 30 March 2001 and gave a statement attesting to the physical state of the second assailant at the time of the attack, the history of their relationship and his lack of knowledge as to any collusion by the other members of the group to help him by changing their respective testimonies.", "48. The charges against the second assailant were amended on 2 April 2001 and a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. He was questioned and reiterated his previous statement that he had not been in possession of a knife during the attack and that he had not stabbed the victim. The results of the preliminary investigation were also presented to the second assailant on the same day.", "49. Between 3 April and 4 June 2001 the results of the preliminary investigation were presented to the other five accused and the first applicant.", "50. On 12 June 200 1 the investigator in charge concluded in a new report that the case should proceed to trial. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date.", "51. There was no development in the criminal proceedings during the following four years.", "52. On 18 March 2005 the Shumen Regional Prosecutor's Office dismissed the charges of hooliganism of exceptional cynicism and impudence and of falsely incriminating someone before the authorities against all of the assailants who had been juveniles at the time of the attack – namely the first and second assailants, N.R., S.H. and D.K. – because the statute of limitation had expired in respect of them. Relying on the evidence collected and the tests conducted in the course of the preliminary investigation, the Shumen Regional Prosecutor's Office argued that the first assailant had stabbed the victim, given that he had had the knife and the victim's blood had been found on his clothes. It therefore dismissed the charges against the second assailant for negligent homicide resulting from an inflicted median bodily injury and remitted the case for further investigation, with instructions that the first assailant be again charged with murder stemming from an act of hooliganism (see paragraphs 12 above and 56 below). The only other remaining accused was G.R.G., who had been eighteen years old at the time of the attack and who continued to be charged with hooliganism of exceptional cynicism and impudence as the statute of limitation had not expired in respect of him (see paragraphs 21 above and 58 below ).", "53. On 22 April 2005 the applicants and the victim's three sisters filed a request with the authorities to be recognised as civil claimants in the criminal proceedings and claimed 75,000 Bulgarian levs (approximately 38,461 euros) in damages.", "54. On 16 May 2005 the applicants'lawyer met with a prosecutor from the Shumen Regional Prosecutor's Office who informed him that the case file had been requested and was being held by the Ministry of Justice.", "55. The Court has been informed of no further developments in the criminal proceedings." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Criminal Code", "1. Offences with which the assailants were charged", "56. For the offence of murder stemming from an act of hooliganism the Criminal Code, as in force in 1996, envisaged a sentence of fifteen to twenty years'imprisonment, life imprisonment or death ( Article 116 (10) ). In 1998 the death penalty was replaced with “life imprisonment without the possibility of substitution”. For juveniles aged from sixteen to eighteen years, the sentence was five to twelve years'imprisonment ( Article 63 § 2 (1) ) and for those from fourteen to sixteen years – up to ten years'imprisonment ( Article 63 § 1 (1) and (2) ). The statute of limitation was twenty-two-and-a-half years for juveniles aged from sixteen to eighteen years ( Article 80 § 1 (2) in conjunction with § 2 and Article 81 § 3 ) and fifteen years for those aged from fourteen to sixteen years ( Article 80 § 1 (3) in conjunction with § 2 and Article 81 § 3 ).", "57. For negligent homicide resulting from an inflicted median bodily injury, the Criminal Code envisaged a sentence of two to eight years'imprisonment (Article 124 § 1), which for juveniles aged fourteen to sixteen years was up to three years'imprisonment ( Article 63 § 1 (3) and (4) ). The statute of limitation for such juveniles was seven-and-a-half years ( Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3 ).", "58. For hooliganism of exceptional cynicism and impudence, the Criminal Code envisaged a sentence of up to five years'imprisonment ( Article 325 § 2 (2) ), which for juveniles aged fourteen to sixteen years was up to two years'imprisonment ( Article 63 § 1 (4) ). The statute of limitation for such juveniles was seven-and-a-half years ( Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3 ).", "59. For making false statements to the authorities incriminating someone in having committed an offence, as a result of which charges were brought against that individual, the Criminal Code envisaged a sentence of one to ten years'imprisonment (Article 286 § 3), which for juveniles aged fourteen to sixteen years was up to three years'imprisonment ( Article 63 § 1 (3) and (4) ). The statute of limitation for such juveniles was seven-and-a-half years ( Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3 ).", "2. Racially motivated offences", "60. Article 162 of the Criminal Code criminalises the propagation and incitement of hostility and hatred, as well as violence based, inter alia, on racial grounds. The relevant part of the Article provides :", "“1. [A person] who propagates or incites towards racial... hostility or hatred, or towards racial discrimination, shall be punished with imprisonment of up to three years and a public reprimand.", "2. [A person] who [resorts to] violence against another or damages [his/her] property because of [his/her]... race... shall be punished with imprisonment of up to three years and a public reprimand.", "3. [A person] who forms or leads an organisation or group, the set goal of which is the perpetration of an offence under the preceding paragraphs, shall be punished with imprisonment of between one to six years and a public reprimand.", "4. A member of such an organisation or group shall be punished with imprisonment of up to three years and a public reprimand .”", "61. Article 163 of the Criminal Code criminalises, inter alia, racially motivated mob violence. The relevant part of the Article provides :", "“1. Persons who participate in a mob rallied in order to attack groups of [people], individuals or their property because of their... racial affiliation shall be punished [as follows]:", "(1) the instigators and leaders – with imprisonment of up to five years;", "(2) the remainder – with imprisonment of up to one year or probation.", "2. If the mob or some of its participants are armed, the punishment shall be:", "(1) for the instigators and leaders – imprisonment of one to six years;", "(2) for the remainder – imprisonment of up to three years.", "3. If an attack is carried out and, as a result, a serious bodily injury or death occurs, the instigators and leaders shall be punished with imprisonment of three to fifteen years, while the remainder shall be punished with imprisonment of up to five years, unless they are subject to a more severe punishment.”", "62. Articles 416 to 418 of the Criminal Code criminalise racially motivated genocide and apartheid.", "63. Article 54 § 1 provides that domestic courts are to take into account, inter alia, the motives of the perpetrator when determining the sentence to be imposed.", "B. Code of Criminal Procedure (1974)", "64. Article 192, as in force at the relevant time, provided that criminal proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator, acting on a complaint or ex officio. The offences with which the assailants were charged were publicly prosecutable offences.", "65. Under Article 237 § 6, as worded until 1 January 2000, a victim had a right of appeal to a higher ranking prosecutor against a decision not to proceed with pending criminal proceedings. After 30 April 2001 the victim had the right of appeal against such a decision by a prosecutor to the domestic courts. The victim had no other means to challenge a refusal to prosecute.", "66. Victims of crime, or their successors, had the right to join the criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 60 § 1 and 63). They had the right to appeal against decisions of the courts which impinged on their rights and interests, which right they also had in respect of decisions of the investigating and prosecuting authorities until 2 May 2003 (Article 63 § 1).", "C. Code of Criminal Procedure (2006)", "67. The new Code of Criminal Procedure introduced separate rights in the criminal proceedings for victims or their heirs, such as the right to participate in them, to be informed of their progress and to appeal against decisions terminating or suspending them (Articles 74 and 75).", "68. Victims of crime or their heirs have the right to join criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 84 § 1 and 87). They also have the right to appeal against decisions of the courts which impinge on their rights and interests (Article 87 § 1).", "D. Protection against Discrimination Act (2004)", "69. The Protection against Discrimination Act was passed in September 2003 and entered into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery providing effective protection against discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services. The Act created a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints (sections 40 and 50).", "70. Section 9 of the Act provides for the shifting of the burden of proof in discrimination cases. Under that section, where a claimant is able to prove facts from which an inference might be drawn that there had been discriminatory treatment, it is incumbent on the defendant to prove that there had not been a violation of the right to equal treatment.", "71. Once successful before the Commission, a plaintiff can initiate a tort action for damages before the domestic courts ( section 74 (1) ). If the damages were caused to a private person as a result of an unlawful act, action or inaction by State bodies or officials, the action for damages has to be filed under the State Responsibility for Damage Act ( section 74 (2)). No relevant case-law was presented by the parties or was identified as having been reported, to indicate whether or how frequently the aforementioned provision has been utilised in obtaining redress for acts of discrimination from State bodies and officials.", "E. State and Municipalities Responsibility for Damage Act (1988)", "72. The State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) provides that (a) the State and municipalities are liable for damage caused to private and juridical persons by the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) that in certain cases the State is liable for damage caused to private persons by the organs of the investigation, the prosecution and the courts (sections 1-2).", "73. The relevant domestic law and practice under section 1 of the SMRDA has been summarised in the case of Iovchev v. Bulgaria (no. 41211/98, §§ 76 ‑ 80, 2 February 2006).", "74. Section 2 of the SMRDA provides, as relevant:", "“The State shall be liable for damage caused to [private persons] by the organs of... the investigation, the prosecution, the courts... for unlawful :", "1. detention..., if [the detention order] has been set aside for lack of lawful grounds;", "2. accusation of a crime, if the [accused] has been acquitted or the criminal proceedings have been terminated on the grounds that the actions were not perpetrated by the [accused] or that the actions do not constitute an offence, or because the criminal proceedings were opened after the statute of limitations expired or the actions were amnestied;", "3. conviction of a crime ..., if the person concerned is subsequently acquitted...;", "4. imposition by a court of compulsory medical treatment..., if [the decision] has been set aside for lack of lawful grounds;", "5. imposition by a court of an administrative measure..., if [the decision] has been set aside as unlawful;", "6. execution of an imposed sentence in excess of the set term or amount.”", "75. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law, as the Act is a lex specialis and excludes the application of the general regime (section 8 (1) of the Act; решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС ).", "III. INTERNATIONAL INSTRUMENTS AND COMPARATIVE LAW ON RACIST VIOLENCE", "76. The relevant international instruments and comparative law on racist violence has been summarised in paragraphs 76-82 of the Court's judgment in the case of Nachova and Others v. Bulgaria [GC] (nos. 43577/98 and 43579/98, 6 July 2005 ).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 13 OF THE CONVENTION", "77. The applicants complained under Articles 2, 3 and 13 of the Convention that the authorities failed to carry out a prompt, effective and impartial investigation capable of leading to the trial and conviction of the individuals responsible for the ill-treatment and death of their relative. They also complained that the domestic criminal legislation contained no specific provisions incriminating the offences of murder or serious bodily injury, or indeed any other felony, as separate criminal offences where the latter were racially motivated, nor did it contain explicit penalty-enhancing provisions relating to racially motivated offences. Lastly, they complained that the authorities had failed to apply the existing but similarly inadequate provisions of the Criminal Code concerning racially motivated offences.", "Articles 2, 3 and 13 of the Convention provide:", "Article 2", "“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. The parties'submissions", "1. The Government", "78. The Government contested the applicants'assertions and argued that the application should be declared inadmissible on account of a failure to exhaust domestic remedies. In particular, they considered it to be premature because the applicants had not waited for the completion of the criminal proceedings against the assailants which, they argued, could address and resolve some of the complaints raised before the Court.", "79. Separately, the Government claimed that the investigation into the victim's death had been conducted by the authorities with the required diligence. They considered that the investigation had been extremely delicate and complex, given that most of the assailants had been juveniles at the time of the attack and kept changing their statements. As a result, the authorities needed to question the same witnesses on more than one occasion, and conducted confrontations between such witnesses and performed medical and other tests and analyses. In spite of their efforts, the assailants'testimonies remained contradictory, which resulted in the case being remitted on three occasions. In the end, murder charges had been brought against one of the assailants, which the Government argued was an indication that the investigation had been completely impartial and not discriminatory.", "80. Separately, the Government noted that the first applicant had been recognised as a civil claimant in the criminal proceedings and had been provided with access to the investigation file. They claimed that her legitimate interests had therefore been adequately guaranteed and protected.", "81. In view of the above, the Government argued that there had been no violations of Articles 2, 3 and 1 3 of the Convention, on the basis that the investigation had been conducted diligently in spite of the objective and subjective obstructions it had encountered.", "2. The applicants", "82. The applicants disagreed with the Government's assertion that they had failed to exhaust domestic remedies by not waiting for the completion of the criminal proceedings. They noted that in respect of most of the assailants, the criminal proceedings had been terminated on 18 March 2005 because the statute of limitations had expired. In respect of these individuals the criminal proceedings were no longer pending and they could no longer be charged with any other offence stemming from their participation in the attack against the applicants'relative. Thus, the applicants'complaints in respect of these persons could not be claimed to be premature. In respect of the murder charge, the applicants noted that criminal proceedings were pending only against the first assailant. They stressed, however, that there had been no further development in the criminal proceedings following the decision of 18 March 2005 and that the charges against the first assailant had not been amended. In any event, the applicants argued that the State's positive duty to investigate and prosecute the offenders included a time component. Referring to the Court's judgment in the case of Selmouni v. France [GC] (no. 25803/94, ECHR 1999 ‑ V) the applicants argued that where such an investigation is unduly prolonged, its excessive length alone would render it ineffective. Lastly, they noted that the question of whether or not the investigation had been effective was a question on the merits and called for the Government's objection to be dismissed.", "83. Separately, the applicants reiterated their complaints and argued that the respondent State had violated its positive obligations under Articles 2 and 3 of the Convention to conduct an effective investigation capable of leading to the punishment of the individuals responsible for the ill-treatment and death of their relative.", "84. Referring to the Court's case-law, the applicants argued that in the present case the investigation conducted by the authorities had clearly been ineffective as it had, for a considerable length of time, failed to result in prosecution and punishment of the assailants.", "85. Lastly, the applicants claimed that the decision of 18 March 2005 of the Shumen Regional Prosecutor's Office had made it even more unlikely that any of the assailants would be punished for the death of their relative, because they considered that the evidence against the first assailant was not conclusive enough for a successful prosecution. They argued that the statements and evidence pointing to the second assailant as the stabber had been much more substantial and credible but noted that, due to the expiration of the statute of limitation, they had all become irrelevant. They submitted that, as a result of the investigation having taken such a long time and having been ineffectively conducted, any possibility of a successful prosecution of any of the assailants was precluded.", "86. The applicants made similar submissions in respect of the investigation into their relative's ill-treatment by the assailants, which they likewise considered to have been excessively delayed and ineffective. They noted that none of the assailants had been charged with causing bodily injury to their relative but had only been charged with “hooliganism”, which allegedly carried a lighter sentence. However, even these charges were dismissed on 18 March 2005 against all but one of the assailants because the statute of limitations had expired.", "B. Admissibility", "87. The Court notes that the Government argued that the applicants failed to exhaust domestic remedies by not waiting for the criminal proceedings against the assailants to be completed. The applicants meanwhile claimed that the question of exhaustion of domestic remedies was inextricably linked to the merits of the complaint and, in addition, that in respect of part of the assailants the criminal proceedings had in any event been terminated on 18 March 2005.", "88. The Court observes that that the criminal proceedings were opened against the assailants on 19 April 1996 and were still pending at the investigation stage when the applicants filed their complaints with the Court on 7 February 2000 arguing, inter alia, that the said proceedings were of excessive length and therefore ineffective. Subsequently, on 18 March 2005 the criminal proceedings against all but two of the assailants were terminated. Presumably, however, they are still ongoing against the two individuals in question.", "89. The Court finds that the question of exhaustion of domestic remedies and the length of the criminal proceedings against the assailants inevitably relate to the merits of the applicants'complaint that the length of the investigation in itself rendered it ineffective. Therefore, to avoid prejudging the latter, these questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits.", "90. In conclusion, the Court finds that the applicants'complaints under Articles 2, 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, or inadmissible on any other grounds. They must therefore be declared admissible.", "C. Merits", "1. General principles", "91. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe. The Court must subject allegations of breach of this provision to the most careful scrutiny (see Nachova and Others, cited above, § 93 ).", "92. The Court observes at the outset that the applicants did not contend that the authorities of the respondent State were responsible for the death of their relative; nor did they imply that the authorities knew or ought to have known that he was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against such a risk. The present case should therefore be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324; Shanaghan v. the United Kingdom, no. 37715/97, § 90, 4 May 2001; Anguelova v. Bulgaria, no. 38361/97, ECHR 2002 ‑ IV; Nachova and Others, cited above; and Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006), or in which the factual circumstances imposed an obligation on the authorities to protect an individual's life, for example where they had assumed responsibility for his welfare (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002 ‑ II ) or where they knew or ought to have known that his life was at risk (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII ).", "93. However, the absence of any direct State responsibility for the death of the applicants'relative does not exclude the applicability of Article 2 of the Convention. The Court reiterates that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports 1998 ‑ III, p. 1403, § 36), Article 2 § 1 of the Convention imposes a duty on that State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law - enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman, cited above, § 115).", "94. The Court reiterates that in the circumstances of the present case this obligation requires that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in the present case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see Anguelova, cited above, § 137; Nachova and Others, cited above, § 110; and Ognyanova and Choban, cited above, § 103 ).", "95. The Court reiterates that in cases involving allegations that State agents were responsible for the death of an individual, it has qualified the scope of the above-mentioned obligation as one of means, not of result. Thus, the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible will risk falling foul of this standard (see Anguelova, cited above, § 139; Nachova and Others, cited above, § 113; and Ognyanova and Choban, cited above, § 105 ).", "96. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to request particular lines of inquiry or investigative procedures (see İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000 ‑ VII, and Nachova and Others, cited above, § 111 ).", "97. A requirement of promptness and reasonable expedition is implicit in this context. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see McKerr v. the United Kingdom, no. 2888 3/95, § 114, ECHR 2001 ‑ III; and Ognyanova and Choban, cited above, § 106 ).", "98. Although there was no State involvement in the death of the applicants'relative, the Court considers that the above-mentioned basic procedural requirements apply with equal force to the conduct of an investigation into a life-threatening attack on an individual, regardless of whether or not death results (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII ). Moreover it would add that, where that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society's condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (see Menson and Others v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V ).", "2. Application of these principles in the present case", "99. The Court observes that the preliminary investigation into the death of the applicants'relative was opened almost immediately after the attack on 18 April 1996 (see paragraphs 10 and 11 above). Within less than a day the investigation had identified the persons who had perpetrated the attack, had detained or questioned all of them and had charged the first assailant with murder stemming from an act of hooliganism (see paragraph 12 above). At the same time, the investigation was informed by one of the assailants, D.K., that the attack had been racially motivated because the victim was of Roma origin (see paragraph 13 above). Within another month the investigation had commissioned medical and other reports and had charged the remaining five assailants with hooliganism of exceptional cynicism and impudence (see paragraphs 14 - 22 above).", "100. The Court further observes that the changes in the testimonies of those assailants who had at first blamed the first assailant for stabbing the victim were initially dealt with expeditiously by the authorities. Namely, the charges against the first assailant were amended to hooliganism of exceptional cynicism and impudence (see paragraph 26 above), N.R. and S.H. were charged with having made false statements to the investigation authorities incriminating the first assailant, (see paragraph 27 above) and the second assailant was charged with negligent homicide resulting from an inflicted median bodily injury (see paragraph 28 above).", "101. Over the next three years, however, the preliminary investigation became protracted for undisclosed reasons, with investigative procedures being performed approximately once a year (see paragraphs 30- 34 above). From 1999 to 2001 there was more activity on the part of the authorities, but in spite of the numerous confrontations between witnesses, the medical and other evaluations and examinations performed and the investigator's proposals to bring the assailants to trial, nothing further of substance transpired (see paragraphs 34-50 above). Then, for a period of four years between 200 1 and 2005, there were absolutely no further developments and the criminal proceedings remained at the investigation stage until the present case was communicated to the respondent Government (see paragraphs 5 and 50-52 above). As a result of the accumulated delays, the statute of limitations expired in respect of the majority of the assailants and the authorities terminated the criminal proceedings against them on 18 March 2005. Thus, in spite of the authorities having identified the assailants almost immediately after the attack and having determined with some degree of certainty the identity of the stabber, no one was brought to trial for the attack on the applicants'relative over a period of more than eleven years.", "102. The Court observes in this respect that the Government failed to provide convincing explanations for the protraction of the criminal proceedings. It finds that the arguments put forward by them do not provide justification for the authorities'failure over several years to conclude the criminal proceedings and bring the assailants to trial.", "103. The Court recognises that the preliminary investigation is still pending against two of the assailants, but, considering the length of the proceedings so far, it finds it questionable whether either of them will ever be brought to trial or be successfully convicted. In any event, the Court does not consider it necessary to make an assessment of this point in the context of the present proceedings, in view of the accumulated length of the proceedings so far and the fact that they were terminated in respect of the majority of the assailants due to the expiration of the statute of limitation as a result of the authorities'inactivity. In this respect, it also does not consider that the applicants should have waited for the completion of the criminal proceedings before filing their complaints with the Court, as the conclusion of those proceedings would not remedy their overall delay in any way.", "104. As to whether the respondent State's legal system provided adequate protection against racially motivated offences, the Court observes that it did not separately criminalise racially motivated murder or serious bodily injury (Articles 115-135 of the Criminal Code ), nor did it contain explicit penalty-enhancing provisions relating to such offences if they were motivated by racism (Articles 116 and 131 of the Criminal Code ). However, the Court considers that other means may also be employed to attain the desired result of punishing perpetrators who have racist motives. It observes in this respect that the possibility existed in domestic legislation to impose a more severe sentence depending on, inter alia, the motive of the offender (see paragraph 63 above). The Court further observes that the authorities charged the assailants with aggravated offences, which though failing to make a direct reference of the racist motives of the perpetrators provided for more severe sentences than those envisaged in domestic legislation for racial hatred offences (see paragraphs 56 - 61 above). Thus, it does not consider that domestic legislation and the lack of penalty-enhancing provisions for racist murder or serious bodily injury were responsible in the present case for hampering or constraining the authorities from conducting an effective investigation into the death of the applicants'relative and applying effectively the existing domestic legislation.", "105. In conclusion, the Court finds that in the particular circumstances of the present case the authorities failed in their obligation under Article 2 of the Convention to effectively investigate the death of the applicants'relative promptly, expeditiously and with the required vigour, considering the racial motives of the attack and the need to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.", "Thus, there has been a violation of Article 2 § 1 of the Convention. It follows that the Government's preliminary objection (see paragraphs 89 and 103 above) must be dismissed.", "106. Having regard to the above conclusion, the Court does not deem it necessary in the present case to make a separate finding under Articles 3 and 13 of the Convention (see, mutatis mutandis, Anguelova, cited above, § 150; Ognyanova and Choban, cited above, § 124; and Nachova and Others, cited above, § 123 ).", "II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION", "107. The applicants alleged a violation of Article 14 in conjunction with Articles 2 and 3 of the Convention in that the authorities failed in their duty to investigate and prosecute a racially motivated violent offence. They referred, inter alia, to their Roma origin, the alleged widespread prejudices against their ethnic group and the authorities'consistent failure to address systematic patterns of violence and discrimination against their community.", "Article 14 of the Convention provides.", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "A. The parties'submissions", "1. The Government", "108. The Government contested the applicants'assertion and argued that the complaint should be declared inadmissible on account of a failure to exhaust the domestic remedies. They claimed that the applicants could have initiated an action against the authorities under the Protection against Discrimination Act, in force as from 1 January 2004, if they believed that there had been discriminatory motives for the investigation having taken too long or for any alleged inactivity on the part of the authorities.", "109. In any event, the Government considered that there had not been any discriminatory motive in the way the authorities had conducted the investigation and argued that this had been demonstrated by the diligence with which it had been conducted, its preciseness and the severity of the charges finally brought against the first assailant.", "2. The applicants", "110. The applicants challenged the Government's claim that the complaint should be declared inadmissible on account of a failure to exhaust the domestic remedies. They argued that an action under the Protection against Discrimination Act was not a remedy that they were required to exhaust because it was neither effective nor available. The applicants noted that the Court had repeatedly held that there is no requirement that remedies that are neither adequate nor effective should be used (see, mutatis mutandis, Sakık and Others v. Turkey, judgment of 26 November 1997, Reports 1997 ‑ VII, p. 2625, § 53 ) and that an individual must have clear, practical opportunity to challenge an act which is an interference with his or her rights (see De Geouffre de la Pradelle v. France, judgment of 16 December 1992, Series A no. 253 ‑ B, p. 43, § 34 and Bellet v. France, judgment of 4 December 1995, Series A no. 333 ‑ B, p. 42, § 36). In respect of the lack of availability of the remedy claimed by the Government, the applicants noted that the Protection against Discrimination Act entered into force close to four years after they had lodged their complaints with the Court. With regard to its effectiveness, they argued that an action for damages, be it based on anti-discrimination legislation or general tort law, could not remedy the substance of their complaint before the Court, which was that the authorities had failed to conduct an effective investigation into the death of their relative and to prosecute the perpetrators. Moreover, an action under the Act would be directed against the investigation authorities and would require the applicants to prove discriminatory treatment by them on the basis of race, of which there was no direct evidence. Thus, the applicants claimed that there was no clear link between the complaints they raised before the Court and the remedy suggested by the Government.", "111. On the merits of their complaint, the applicants referred to the Court's judgment of 26 February 2004 in the case of Nachova and Others ( cited above ) and noted that States which are parties to the Convention had a positive duty to investigate possible discriminatory motives in cases where there was evidence of racially motivated violence. In line with the Court's ruling in that judgment, the applicants argued that Article 14 of the Convention, taken together with Article 2 and 3 of the Convention, contained a separate procedural obligation to carry out such an investigation. Such an obligation, they further argued, was fully in line with the Court's existing case - law under Articles 2 and 3 of the Convention (see Menson and Others (dec.), cited above ) and the existing standards under international law (see the jurisprudence of the United Nations Committee on the Elimination of All Forms of Racial Discrimination – Case No. 4/1991, L.K. v. the Netherlands, Views adopted on 16 March 1993, para. 6.6.). The applicants thus claimed that in the present case Article 14, in conjunction with Articles 2 and 3 of the Convention, had been violated with respect to its procedural aspect – the duty to investigate where there is evidence reasonably suggesting that there was racially motivated violence and killing.", "112. The applicants argued that the investigation had collected testimony and forensic evidence that clearly established that the victim was attacked, severely beaten and killed because of his race. In particular, the assailants testified that the victim was picked, beaten and killed because, and only because, he was a Roma. Sufficient evidence was also collected that this was by no means an isolated event for the assailants and that they had periodically practiced racist violence of a similar nature. Thus, in spite of the abundant evidence of the attack, the beating to which the victim was subjected and his resulting death, the assailants and the person who stabbed him were never prosecuted. This failure by the Bulgarian authorities was, the applicants argued, an unambiguous violation of Article 14 taken in conjunction with the procedural aspect of Articles 2 and 3 of the Convention.", "113. Referring to the general situation of Roma in Bulgaria, the numerous incidents of racist attacks and the high rate of violence against them, as well as the specific facts in the present case, the applicants further claimed that the Bulgarian authorities should have investigated and prosecuted the racial discrimination aspect of the attack and should have brought charges reflecting the particular gravity of the racist violence. They argued that the authorities completely failed to do this and that nothing in the investigation addressed the racist motivation of the violence against their relative. The conduct of the prosecuting authorities therefore thwarted the course of justice and deprived them of an effective remedy against the discrimination suffered by the victim.", "B. Admissibility", "114. The Court notes that this complaint is linked to the ones examined above (see paragraphs 77-106 above) and must therefore, likewise, be declared admissible. The Court does not find that the Government sufficiently substantiated their argument that the applicants should have exhausted the procedure under the Protection against Discrimination Act, as it does not consider it to have been proven that this procedure, introduced eight years after the attack and four years after the introduction of the application, would have been an effective remedy for their complaint under Article 14 of the Convention alleging that the authorities failed in their duty to investigate and prosecute a racially motivated violent offence.", "C. Merits", "115. The Court reiterates that States have a general obligation under Article 2 of the Convention to conduct an effective investigation in cases of deprivation of life, which must be discharged without discrimination, as required by Article 14 of the Convention. Moreover, when investigating violent incidents State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160 ).", "116. In the present case, the racist motives of the assailants in perpetrating the attack against the applicants'relative became known to the authorities at a very early stage of the investigation, when D.K. gave a statement to that affect on 19 April 1996 (see paragraph 13 above). The Court considers it completely unacceptable that, while aware that the attack was incited by racial hatred, the authorities did not expeditiously complete the preliminary investigation against the assailants and bring them to trial. On the contrary, they allowed the criminal proceedings to procrastinate and to remain at the investigation stage for more than eleven years. As a result, the statute of limitations expired in respect of the majority of the assailants. In addition, the Court observes that the authorities failed to also charge the assailants with any racially motivated offences. It notes in this respect the widespread prejudices and violence against Roma during the relevant period and the need to reassert continuously society's condemnation of racism and to maintain the confidence of minorities in the authorities'ability to protect them from the threat of racist violence (see Menson and Others (dec.), cited above ).", "117. Thus, the Court finds that in the present case the authorities failed to make the required distinction from other, non-racially motivated offences, which constitutes unjustified treatment irreconcilable with Article 14 of the Convention.", "Consequently, it finds that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 2 of the Convention.", "118. Having regard to the above conclusion, the Court does not deem it necessary in the present case to make a separate finding under Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention (see paragraph 106 above).", "III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "119. The applicants complained under Article 6 of the Convention in respect of the excessive length of the criminal proceedings against the assailants and alleged that this denied them access to a court to claim damages from the perpetrators, in that a civil action for damages was dependent on the outcome and findings of the criminal proceedings.", "The relevant part of Article 6 § 1 of the Convention provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”", "120. The Court notes that similar complaints were dismissed in the cases of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports 1998 ‑ VIII, p. 3292, §§ 110 ‑ 13) and Toteva v. Bulgaria (dec.) (no. 42027/98, 3 April 2003). The present case does not disclose any material difference. In particular, had the applicants initiated a civil action against the assailants, the competent civil court would have accepted it for examination. It is true that the court would have, in all likelihood, stayed the proceedings if it found that the relevant facts involved criminal acts. However, the civil courts are not bound by a refusal or delay of the prosecuting authorities to investigate. In circumstances where – as here – the applicants did not bring a civil action, it is a pure speculation to consider that the civil proceedings would have remained stayed for such a period, so as to give rise to a de facto denial of justice, as claimed by the applicants.", "121. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "122. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "123. The applicants claimed 40,000 euros (EUR) on behalf of the victim, on their own behalf and also on behalf of the first applicant's three daughters, sisters of the victim. The amount claimed was to compensate the violation of the victim's rights and the pain and suffering caused to all his close relatives, mother, sisters and brother, as a result of the ineffective, prolonged and eventually aborted investigation and prosecution of those responsible for his beating and death, the loss of the moral and financial support he would have provided to his family as well as the thwarted opportunity for his relatives to file a claim for damages under national law for more than nine years.", "The applicants claimed that under Article 41 of the Convention non-pecuniary damages should be awarded in full to anyone who suffered a violation of the rights under the Convention and that the Court had awarded the highest amounts in compensation for violations of the right to life. They further noted that the Court in its case - law had outlined a number of circumstances that should be taken into consideration in such cases, such as whether the behaviour of the authorities was particularly blameworthy or the consequent investigation particularly flawed, the age of the victim (see Anguelova, cited above, § 173) and also whether it had been demonstrated that the responding State had tolerated a wider practice of abuse of Convention rights (see Nachova and Others, cited above, § § 171-72 ).", "The applicants argued that in the present case there were several such factors that necessitated an increased award of damages, namely that their relative was the victim of a racist attack, beating and killing; that he was an innocent victim, randomly chosen because of the colour of his skin; that, in spite of the abundant evidence concerning the offence and the perpetrators, the authorities had chosen not to investigate and prosecute a blatantly racist crime; that such tacit approval of racism by the authorities was particularly blameworthy; and that the specific circumstances of the victim's death and the behaviour of the investigation and prosecution authorities should not be tolerated under any circumstances.", "Finally, the applicants claimed that the possibility for them to receive compensation from the assailants in the domestic courts was practically non- existent given the latest developments in the criminal proceedings, the expiration of the statute of limitation in respect of most of the perpetrators and the evidentiary difficulties of initiating a successful civil action for damages after so many years.", "124. The Government stated that the applicants'claims were excessive, unsubstantiated and that they did not correspond to the size of awards made by the Court in previous similar cases. They referred to the judgment in the case of Nachova and Others ( cited above ) where the Court had awarded the relatives of the first victim EUR 25,000 jointly for pecuniary and non-pecuniary damage and the parents of the second victim EUR 22,000 jointly for pecuniary and non-pecuniary damage. The Government also referred to the case of Anguelova (cited above ) where the Court had awarded the applicant EUR 19,050 for non-pecuniary damage. They also noted that any compensation for damages should be made on an equitable basis and considered the applicants'claim to be arbitrarily determined.", "The Government challenged the possibility for the applicants to claim damages on behalf of the victim's sisters, as the latter had not been party to the proceedings before the Court, and considered that they should not be awarded any sums in compensation. They argued that his sisters could have joined the proceedings in their own right and, had they done so, then they could have filed a claim for damages, such as had been done by the relatives of the victims in the above cited cases.", "The Government disagreed with the applicants'argument that they had no opportunity to seek damages from the assailants at domestic level, and referred to the civil claim filed by the applicants and the sisters of the victim in April 2005 within the framework of the pending criminal proceedings.", "125. In respect of pecuniary damage, the Court reiterates that there must be a causal link between the damage claimed by an applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst others, the Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285 ‑ C, pp. 57-58, §§ 16-20, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999 ‑ IV). The Court notes that in the present case private persons were responsible for the ill-treatment and death of the victim. Thus, although there is a direct link between his death and the claimed loss of financial support, the Government was not responsible for the assailants'actions and cannot therefore be held liable to compensate the applicants for the pecuniary damage suffered as a result. Accordingly, the Court rejects the applicants'claim for pecuniary damage.", "126. In the context of assessing the claim for non-pecuniary damage, the Court notes that, in respect of just satisfaction claims, Rule 60 of the Rules of Court requires the respective party to be an applicant and to have filed a claim to that effect. Rule 60 provides :", "“1. An applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention... must make a specific claim to that effect.", "2. The applicant must submit itemised particulars of all claims...", "3. If the applicant fails to comply with the requirements set out in the preceding paragraphs the Chamber may reject the claims in whole or in part.”", "127. Thus, the principle is that awards can only be made to persons who are applicants in the proceedings before the Court.", "128. The Court notes, however, that awards have also previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings. It has also previously awarded sums as regards the deceased where it has found that there had been arbitrary detention or torture before his disappearance or death, such sums to be held for the person's heirs (see, among others, Çakıcı [GC], cited above, § 130, and Akdeniz and Others v. Turkey, no. 23954/94, § 133, 31 May 2001). The Court recognizes that in those cases the balance of the awards represented compensation for the victim's own pain and suffering at the hands of the police or security forces as a result of substantive violations of Articles 2 and /or 3 of the Convention. The present case relates to the ill-treatment and death of the applicants'relative as a result of actions by private individuals. Accordingly, only the pain and suffering of the applicants as a result of events subsequent to their relative's death – for which the respondent State was responsible – are relevant when assessing the award to be made.", "129. Separately, the Court notes that the victim's heirs were established soon after his death in 1996, and included his mother, brother and three sisters. The proceedings before the Court were initiated and maintained by his mother and brother, but that did not restrict, bar or hinder his three sisters from requesting to join the proceedings and claiming to be victims of the alleged violations in their own right. In so far as they failed to exercise their right to join the proceedings, the Court finds that they do not satisfy the requirements of Article 41 of the Convention and Rule 60 of the Rules of Court, namely to be applicants who claim to be an injured party and who have filed a valid claim for damages.", "130. Accordingly, the Court, deciding on an equitable basis and having regard to awards in comparable cases (see Anguelova, cited above, § 173 and Nachova and Others, cited above, § § 171-72 ), finds it appropriate in the circumstances of the present case to award EUR 15,000 jointly to the two applicants, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "131. The applicants claimed EUR 6,000 for 65 hours of legal work by their lawyer before the Court, at the hourly rate of EUR 80, and for 23 hours of travelling time, at the hourly rate of EUR 40, on matters relating to the case. They submitted an agreement on legal fees concluded with their lawyer and a timesheet. The applicants requested that the costs and expenses incurred should be paid directly to their lawyer, Mr Y. Grozev.", "132. The Government challenged the timesheet presented by the applicants and the number of hours claimed to have been worked by the applicants'lawyer in the proceedings before the Court, which they considered excessive for the work performed. Concerning the travel expenses, they argued that it had not been proven that any such trips had even taken place because no tickets or receipts had been presented to the Court. In any event, they considered the rate of EUR 40 per hour for travelling time for the lawyer to be excessive.", "133. The Court reiterates that, according to its case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Noting the complexity of the case, the submissions of the applicants'lawyer and the other relevant factors, the Court considers it reasonable to award the sum of EUR 3, 5 00 in respect of costs and expenses, plus any tax that may be chargeable on that amount.", "C. Default interest", "134. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]